Foreign forces: Hands off criminal justice in SAR

On February 28, 47 individuals were charged with an offence of conspiring to subvert state power, contrary to the National Security Law (Art.22), which was enacted on June 30, 2020. It is alleged that they participated in a subversive scheme to seize control of the Legislative Council, paralyze the work of the government, and force the resignation of the Chief Executive. Had the alleged plot succeeded, it would inevitably have provoked a confrontation with the Central Authorities.

Before charging the suspects, the police force will, as required by the National Security Law, have obtained the written consent of the Secretary for Justice (Art.41). Before consent was given, prosecutors will have evaluated the strength of the evidence and framed the details of the conspiracy charge. The Secretary will only have given the green light to proceed once she was satisfied that, in accordance with common law norms, there was a reasonable prospect of conviction on the available evidence, and it was in the public interest to prosecute.

In due course, the accused persons will, unless they plead guilty, face trial, most likely in the High Court. They will enjoy the presumption of innocence, and will only be convicted if prosecutors have demonstrated their guilt beyond reasonable doubt. They will, moreover, be entitled to all the fair trial guarantees contained in the Hong Kong Bill of Rights Ordinance, given that the National Security Law specifically extends the International Covenant on Civil and Political Rights to prosecutions brought under it (Art.4).

For extra reassurance, the National Security Law even stipulates that "human rights shall be protected in safeguarding national security in the Hong Kong Special Administrative Region", and this could hardly be clearer. Despite this, and without having studied either the evidence or the law, the usual China critics have mobilized, spouting their well-worn platitudes. Some have even sought to interfere in the prosecution process, something which they would consider intolerable in their own jurisdictions.

Leading the charge, was the United Kingdom's Foreign Secretary, the hapless Dominic Raab, who found the case "deeply disturbing", even though he knew nothing about its evidential viability. Parrot-like, he reiterated his claim that the National Security Law "violates the (Sino-British) Joint Declaration" of 1984, for which, as usual, he offered no evidence. It appears he has not read the Joint Declaration, or, if he has, that he has not understood it, as it said nothing about national security, which is China's internal matter.

The Joint Declaration did, however, make clear that national defense, of which internal security is an integral part, was a matter solely for China, meaning it fell outside its ambit. Indeed, the UK never proposed, and China never agreed, that Hong Kong would be denied the laws it required to defend itself from subversive activities, terrorism, secession, or to protect the nation.

This, of course, was unsurprising, as Raab's predecessors well understood. Under China's Constitution, national security is always a matter for the country as a whole, just as it is in the UK, and he should have known this. Before he puts his foot in it again, therefore, Raab's advisers will hopefully sit down with him and explain things. After all, he made a fool of himself on January 16, by publicly condemning a British barrister, David Perry QC, for prosecuting what he thought was a national security case but which actually involved an unauthorized march, and he really must act now if he wishes to salvage his credibility.

However, of greater concern than Raab's ramblings are the coordinated attempts from elsewhere to pressurize the Department of Justice into terminating the ongoing prosecutions. Using identical terminology, the US Secretary of State, Antony Blinken, and the European Union's foreign policy head, Josep Borell, called for the "immediate release" of the 47 defendants. In this, they were joined by the likes of Amnesty International and Human Rights Watch, which, like them, evinced contempt for criminal justice in Hong Kong.

On March 2, therefore, the Department of Justice responded, announcing that "no one should interfere with prosecutorial decisions, which are carried out strictly in accordance with the law". It also pointed out that calls to release defendants while criminal proceedings against them were in progress undermined "the rule of law and is seen as an attempt to meddle in Hong Kong's affairs, which are internal affairs of the People's Republic of China". It might also have added that, in Hong Kong, nobody is above the law, even if they have powerful friends in foreign parts, and anybody suspected of having committed a criminal offence must expect, evidence permitting, to be prosecuted.

Although the Department of Justice did not say so in terms, attempts by foreign actors to interfere with live prosecutions can amount to an attempt to pervert the course of public justice. In Hong Kong, as elsewhere, this is a serious offence, and it arises when there is conduct which may result in defeating the ends of justice. If, therefore, the department were to buckle to foreign pressure, and to terminate prosecutions it had previously endorsed for no sound legal reason, this would defeat criminal justice. Since all are equal before the law, anybody who, under whatever guise, seeks to undermine the rule of law, must be left under no illusions over their potential culpability.

Hong Kong is fortunate to have a tried and tested legal system, operated by men and women of the highest quality. Its judges are of impeccable integrity, and its procedures derive from the common law. Anybody charged with a crime is assured of a fair trial, with just outcomes being achieved. The criminal justice system is strong and vibrant, and will never be deflected from doing its duty by foreign bumblers and bullies, however shrill their voices.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of Public Prosecutions of the Hong Kong SAR.

This article is reprinted from DotDotNews with permission of both its author and DotDotNews. The views do not necessarily reflect those of China Daily.