On Tuesday, the trial of the first person prosecuted under Hong Kong’s national security law will come to a close, with the defendant being refused bail and a jury in a landmark case that opponents argue is a departure from common law.
Tong Ying-kit, a former waitress, pleaded not guilty on July 1 last year to charges of terrorism, inciting secession, and an alternative penalty of hazardous driving inflicting grievous bodily damage, just days after the law was implemented.
Until prosecutors can show that their confinement is warranted, defendants under Hong Kong’s common law have generally been free to request release.
The weight of proof is on the defendant to prove they would not break the law if freed on bail, according to the new law, which some Western countries and rights groups worry is being used to stifle dissent in the global financial capital.
The Chinese and Hong Kong administrations have consistently stated that the new law is vital to restore calm to the former British territory following anti-government riots in 2019.
Esther Toh, Anthea Pang, and Wilson Chan, three judges handpicked by Hong Kong’s pro-Beijing leader, Carrie Lam, to oversee national security charges, are presiding over Tong’s trial. There is no jury in this case.
Trial by jury, according to Hong Kong’s Judiciary, is one of the most essential components of the city’s legal system, a common law practise aimed to provide defendants with more protection against authorities abusing their power.
Article 46 of the security law – created in Beijing, where the Communist Party controls the courts and conviction rates are around 100% – specifies three scenarios in which juries can be disbanded: safeguarding state secrets, cases involving foreign forces and protecting jurors’ safety.
Tong, the first of more than 120 persons arrested under the security law, is accused of ramming his motorcycle into officers during a gathering while waving a protest flag that reads “Liberate Hong Kong, Revolution of Our Times.”
The trial will focus on how the protest phrase was interpreted. According to the authorities, a call for independence would be a violation of the security statute. Defense attorneys say that it is a statement with multiple meanings, including a yearning for liberty and democracy.
The outcome of Tong’s case may indicate how the courts will handle a slew of other national security matters.