Dissent on trial in Hong Kong — without jurors

Two high-profile national security cases in Hong Kong will proceed without juries, according to the media in the former British colony, with some analysts interpreting this as another signal of failing judicial independence.

One of the cases concerns high-profile media tycoon Jimmy Lai, who faces charges of colluding with foreign forces and distributing seditious publications. The other one is aimed against 47 pro-democracy figures who were charged with "conspiracy to subversion" under Hong Kong's National Security Law (NSL).

Though trial by jury has been a long tradition in Hong Kong’s common law system, the NSL allows cases to be heard by government-appointed judges. The legislation was imposed by Beijing in 2020, following years of pro-democracy protests.

Fewer juries make government 'more confident'

Last month, a UN human rights committee expressed concerns about the practice of no-jury trials. Despite those concerns, however, Hong Kong's High Court set a precedent by hearing the national security case against activist Tong Ying-kit without a jury, and handing him a nine-year sentence.

"The move of not designating juries to these cases reflects the government's deep concern about the outcome of the trial," Eric Lai, the Hong Kong law fellow at Georgetown University's Center for Asian Law, told DW.

"If a criminal is tried by a jury, there would be many possibilities and greater uncertainties for the outcome," Lai said. "It's obvious that, when juries are absent, the government is more confident of the outcome of the trial. This implies that the judicial system in Hong Kong has become more like a tool for the government to achieve their political aim."

Other analysts are warning that an increasing number of cases may not be legitimate.

"The whole thing is another indicator showing that there is nothing left in regard to judicial independence in Hong Kong under the NSL," Chung-Ching Kwong, the Hong Kong campaign coordinator for the Inter-Parliamentary Alliance on China, told DW.

According to a letter seen by the Hong Kong Free Press, the city's justice secretary cited safety concerns as the reason for not appointing a jury in the case against the 47 pro-democracy figures. The secretary, Paul Lam, said there were foreign elements in the case, raising questions on the "personal safety of jurors and their family members" and the risks of "perverting the course of justice if the trial is conducted with a jury," among other factors.

Are defendants pressured to plead guilty?

Following the revelation that their cases would be heard without juries, 29 defendants in the 47 pro-democracy figures' case are reportedly planning to plead guilty. Media tycoon Jimmy Lai is apparently sticking with the not-guilty plea in his own national security case.

Kwong said some defendants might choose to plead guilty to receive shorter jail sentences, but they might also think that arguing in court would not make a difference for the outcome.

"Since they have been remanded for more than a year, it makes more sense to just get out of jail as soon as possible," she said.

"They know they most likely will be found guilty and, under the current regime, it doesn't make any difference if you try to argue in court or not," she added. "I think it's both knowing that there won't be a fair trial while wanting to get out of jail as soon as possible."

Legal scholar Eric Lai said the practice of pretrial detention in NSL cases was very similar to pretrial detention in mainland China and under other autocratic regimes. At the same time, he noted that differences still remain between the former UK colony and rest of China.

"There are similarities between the judicial system in Hong Kong and China, but I can't say they are completely mirroring," he said.

Bail increasingly out of reach

Many defendants in national security cases have been detained for over a year, and some observers say the vague conditions for granting bail reflect the general lack of transparency in Hong Kong's judicial system.

"In the common law system, granting bail should be a right, as you can't hinder someone's physical freedom without sufficient justification," Kwong said.

"The threshold for granting bail is so hard to achieve now,"she added. It's very problematic to see that we are relieved when someone received bail, because it should be a norm that most defendants should receive bail as long as they don't have a high risk of hindering case development."

On Monday, a former lawmaker and former leader of the disbanded Hong Kong Alliance, which organized the annual Tiananmen Vigil in Hong Kong, was granted bail after being remanded last May. Albert Ho is accused of inciting subversion even though he has completed sentences under protest-related charges. Under his bail conditions he had to pay close to €90,000 ($90,000), while also reporting to the police three times a week and hand over all his travel documents, and with two of his family members also providing surety.

"While we celebrate some kind of good news that Ho is now granted bail, we shouldn't take it as a sign that others will be given bail," said Patrick Poon, a visiting researcher at the Institute of Comparative Law at Japan's Meiji University. "It’s not setting precedence."

Edited by: Darko Janjevic