By Jerome A. Cohen
Here is the SCMP’s rapid reporting on the case of the Hong Kong 12. Mainland Chinese authorities have accused them of illegal border crossing and organizing crime. This is just the closing of the first phase of the long criminal process that lies ahead. We now know at least a few things about the case.
The “HK 12” were apparently not subjected to “residential surveillance at a designated location” on suspicion of national security violations. That could have kept them in incommunicado detention for up to six months before the regular criminal process began. Indeed, as the charge approved by the procuracy confirms, they are not being charged with national security violations under either PRC national law or the new NSL for HK, as some had speculated they might be and as a Wolf Warrior of the Ministry of Foreign Affairs seemed to suggest would be appropriate. That would have raised legal complexities of a controversial nature as well as international political temperatures.
Instead, the case seems en route to being treated as a regular criminal case of illegal border crossing, a crime, to be sure, but not ordinarily a major one. Of course, after up to seven more months or so of police investigation, the police, when they seek the procuracy’s approval of indictments, may decide to change the charges to harsher offenses or add further offenses to the current charge of illegal entry. The procuracy might or might not agree or may, on its own volition, change or add to the charges. But it is unlikely that this will happen, especially since the local Party political-legal committee, under central Party guidance, has undoubtedly arranged matters between police and procurators (prosecutors) so far as the evidence has been revealed.
At this stage, it is likely that ten of the twelve will receive one-year sentences after conviction by the local district or even intermediate court, with the sentence running from the date of detention. That sentence can be suspended or reduced, however, depending on a variety of circumstances including the extent of the defendant’s confession, contrition and cooperation with the investigation as well as the defendant’s health and willingness to forego an appeal.
The two accused of organizing may well draw three-year sentences and possibly longer ones, although, again, much depends on their post-detention behavior and physical and mental condition. The most immediate challenge for the PRC is how to deal with the embarrassment created by the denial of access to defense lawyers chosen by the families of the suspects. Further steps may be taken to silence the lawyers chosen by the families. Those can range from detaining the would-be lawyers, threatening them with disbarment and closing of their law firms as well as harm to their families etc. The authorities will surely attempt to deny the would-be lawyers further access to the families and the media. The Party may decide to have the lawyers chosen by the police put on a show designed to create a more favorable impression than usual. Possibly the families may be allowed a visit or a representative of the HK government might even be permitted to visit, but the latter seems unlikely. Too many departures from the usual practice might be seen as setting unfavorable precedents for future cases and not establishing sufficient deterrent against future offenses of this type.
At this point there is not much that any defense lawyer can accomplish in a case of this nature except to perhaps reduce the likelihood of any further torture and coerced confessions by meeting with and observing the suspect, if only in the circumscribed circumstances allowed. Eventually, if permitted, defense lawyers might prove helpful at whatever type of “trial” is allowed, and this will be another challenge for the Party.