By Jerome A. Cohen
Here is the latest China Daily defense of the Hong Kong National Security Law, featuring an attack on HK’s judiciary as well as on Taiwan’s willingness to accept HK refugees. Former HK Independent Commission Against Corruption leader Tony Kwok, now at least nominally retired but long a cheerleader for harsh enforcement of a stern NSL, is not content with the restrictions that the NSL places on local judges handling NSL cases. He now advocates restricting the independence of those HK judges who continue to handle local cases of alleged “rioting” that do not fall under the NSL.
Earlier this year many pro-Beijing supporters assured us that there is no reason to fear an NSL, since there will always be the protection offered by the independent HK judiciary required to interpret and apply the law. Yet brief experience later this year has led to Beijing’s supposed “loss of trust” in HK’s judiciary, which is now being accused of standing between the people of HK and their peace and stability. A similar argument has recently been made in the SCMP by long-retired Court of Final Appeal judge Henry Litton, a pro-Beijing favorite of the HK business elite. I plan to comment separately on the Litton op-ed.
Kwok condemns a number of HK judges, none of them foreigners it should be emphasized, for granting bail to some accused and acquitting others. There is, he maintains, “clearly a prima facie case that these judgments are tarnished by their political bias in favor of the rioters.” The Chief Justice, he argues, should order an internal inquiry “to ascertain whether these judges are politically biased, or worse still, have questionable relationships with the defense counsels which they did not declare.” This suggestion, made wholly without evidence, is, of course, an outrageous slur not only against the judges but also against the gallant HK bar that, together with the judiciary, represents the city’s last line of peaceful defense against Beijing’s new oppression.
Yet Kwok goes further, urging that HK judges be specially approved not only for handling NSL cases, as required by the new law, but also for dealing with ordinary “riot-related” cases. That would make it certain, he claims, that only “apolitical judges” would become involved, i.e., those who are likely to deny bail and to convict accused.
Most alarming among Kwok’s many recommendations and insinuations is his confidence in the interrogation methods that Mainland police are very probably using to “interview” the HK fugitives recently caught as they sought escape to Taiwan. Although Kwok seems understandably uncertain whether the suspects will be prosecuted in HK or the Mainland and for which offenses, he is in no doubt, quite correctly, that “these fugitives would unlikely keep their mouths shut under interrogation by Chinese mainland enforcement officials.” Kwok, never alluding to the well-documented incommunicado detention, torture, and coerced confessions that characterize mainland police “interviews,” as he prefers to call the process, tells us that such interrogation will be “fair because the mainland has long adopted a video recording system for all interviews of suspects.”
This assertion is the height of mischievous cynicism, since police easily evade that requirement. Moreover, PRC police – both ordinary and secret police – actually use extreme, persistent physical and mental tortures to force their captives to give pre-scripted video “confessions” that are then often televised in an effort to support the PRC’s false claims. Kwok should acknowledge, for example, the extraordinarily long and detailed statement issued November 20, 2019 by Simon Cheng Man-kit, the local employee of the HK British Consulate who, as he left the mainland, was forcibly detained last August for ostensibly “soliciting prostitution.” Cheng, now having obtained political asylum in the UK, was actually subjected to obscene tortures for two unbearable weeks in Shenzhen in “interviews” designed to extract information about the origins of last summer’s HK protests. His emotionally moving post-release account came as no surprise to students of PRC criminal justice.