Political Censorship in British Hong Kong

By Jerome A. Cohen

Michael Ng's new book looks like an important contribution to the study of free speech in Hong Kong under British rule; Mr. Ng's upcoming book talk on October 27th will be an interesting program. I wonder whether the establishment of the Universities Service Center by the Carnegie Corporation in Hong Kong in 1963-4 is mentioned in the book. The Hong Kong Government was very slow to give its approval, Carnegie’s representative was very cautious about finalizing arrangements for fear of offending the Brits and ultimately was sacked for being too ineffective.

The HKG was worried about offending the PRC and suspected that USC was going to be a CIA plant rather than a good faith home for visiting scholars of events in China. Carnegie asked me to take over arrangements for setting up the Center since I was in HK for a year of research, needed a place to work, and was a friend of several higher-ups in the UK administration as well as Lord Lawrence Kadoorie, a leading figure in the business community.

Lucian Pye, also in HK that academic year and already an established China scholar, would have been the obvious choice to lead the Carnegie effort but was deemed too close to the US Government, as he himself agreed. I recall how the seating at a dinner party was arranged so that the HKG’s foreign affairs chief could interrogate me for an evening of apparent sociability. It would be interesting to know whether HKG files reveal any of this.

Is Hong Kong Justice Still Fair and Independent in Sensitive Political Cases?

By Jerome A. Cohen

I recently read this good Reuters story by James Pomfret and Greg Torode about Monday's speech by Chief Justice Andrew Cheung at the annual opening ceremony of Hong Kong’s judicial year. The new chief justice provided necessary assurance to the community that the city’s judicial independence continued to be “a fact” despite recent momentous changes wrought by the new National Security Law (NSL) and related measures. He noted that Hong Kong court reports are full of cases making clear that Hong Kong judges continue to take a generous view of fundamental rights in their interpretations and narrowly confine restrictions on such rights.

Yet, at a meeting with the media following his speech, the CJ’s honest answers to questions posed by well-informed journalists inevitably cast doubt on his assurances. When asked to reveal the number and identities of those judges who have been cleared to decide national security cases (juries can now be prevented from deciding these important cases), the CJ reportedly responded that, while he could advise and make recommendations about which judges should be selected to handle such cases, it is the city’s chief executive (Carrie Lam) who is the designating authority under the NSL.

Of course, even if the CE, the city’s most powerful political official, now determines who shall decide the most politically sensitive judicial cases, that does not explain why the CJ cannot at least reveal to the public the number of special judges approved by the CE or their identities. Nor does it explain why consultations on this matter between the CE and the CJ have to remain secret and why, as the CJ admitted, it is not for the judiciary to answer for the criteria governing the choice of its members to handle these cases. It should also be noted that, according to the Court of Final Appeal itself, Hong Kong courts have now lost the power to make final determinations on relevant constitutional questions, as their recent decisions denying bail demonstrate.

This new reality is also an important “fact” of Hong Kong’s judicial independence. My heart goes out to Chief Justice Cheung, who has valiantly taken on an impossible task. (Full disclosure: he reportedly took my course on Chinese law almost forty years ago while a Harvard graduate student.)

The Positive Impact of Repression in Hong Kong

By Jerome A. Cohen

Saturday's NY Times carries an important and fascinating story by Michael Wines detailing the decision of a Florida federal judge, Mark Walker, ordering the University of Florida to stop enforcing a policy that barred six of its professors from giving expert testimony in lawsuits against the state. The judge’s ruling reportedly “accused the university of trying to silence the professors for fear that their testimony would anger state officials and legislators who control the school’s funding. Judge Walker likened that to the decision last month by Hong Kong University to remove a 25-foot sculpture marking the 1989 massacre of student protesters in Beijing’s Tiananmen Square by the Chinese military, apparently for fear of riling the authoritarian Chinese government. If the comparison distressed university officials, he wrote, ‘the solution is simple. Stop acting like your contemporaries in Hong Kong.’”

Chairman Mao reputedly once admonished us to never underestimate the power of negative examples! I don’t know where the judge got this terrific idea from – whether from his own reading, the plaintiffs’ brief or his law clerks. But this example opens up many possibilities for, as both Chinese and foreigners like to say, “turning a vice into a virtue.”

It is sad to see a major American university engaging in such repression today. It was bad enough when, sixty years ago, the University of California at Berkeley forced philosophy professor John Searles and me to cancel a program scheduled to condemn the U.S. House of Representatives Un-American Activities Committee. When we protested, the campus vice-chancellor told us the university could not afford to offend the legislature. We should have sued. Instead we both moved on to freer climes.

Hong Kong's Transformed Criminal Justice System: Instrument of Fear

Several of us were recently asked to write essays for Taiwan’s Academia Sinica on developments in Hong Kong. These will be formally published in March but, in view of the pace of events and the importance of the topic, we have been authorized to make our views available now.

HONG KONG’S TRANSFORMED CRIMINAL JUSTICE SYSTEM: INSTRUMENT OF FEAR

By Jerome A. Cohen*

Abstract

This essay demonstrates how recent, comprehensive changes in Hong Kong’s criminal justice system have transformed it into an instrument of fear that has understandably intimidated a formerly vibrant society into political silence. An intensive surveillance system now reaches every aspect of society. Aggressive criminal investigation techniques now invade formerly protected freedoms of expression. Aided by reversal of the traditional presumption in favor of bail pending trial, government now punishes people under the new National Security Law (NSL) by detaining them for months or years before cases are finally decided. Recent restrictions on Legal Aid limit prospects for independent criminal defense. Political operatives now decide whether and what types of NSL prosecutions should be brought. Trial by jury has been eliminated for major NSL offenses, and only judges who are deemed politically reliable can adjudicate such trials. Also, appellate judges are under various pressures, and constitutional issues that were formerly thought to be the exclusive province of the Hong Kong courts are now dictated by the Standing Committee of China’s National People’s Congress. Moreover, increasingly, local criminal procedures that do not fall under the NSL are nevertheless being adversely affected by the current obsession with national security. The NSL era’s transformation of criminal justice has effectively suppressed popular protests and democratic practices.

KEYWORDS: national security, surveillance, criminal justice, investigation, bail, jury, defense lawyers, prosecutors, judges, Constitutional Law, human rights.

Full text (PDF): http://publication.iias.sinica.edu.tw/60105122.pdf.

New HK Anti-Doxxing Law Gives Government Sweeping Powers

By Jerome A. Cohen

Day after day the legal outrages pile up as Beijing tightens the noose on Hong Kong. Ten more freely elected, pro-democracy district councilors have just been disqualified from office. The local government simply ruled, without any explanation whatever, that their oaths of office were invalid!

At the same time, the prosecutions of six former staff members of Apple Daily and Next have been transferred by the government from the HK Magistrates Court to the HK High Court, thereby making them eligible for potential life sentences if, as likely, they will be convicted of violating the National Security Law for HK.

Most surprising and shocking is HK’s new anti-doxxing law amendment. It makes disclosure of personal data without consent, with an intent to cause psychological harm, a crime punishable by a fine up to HK $ 1 million and five years in prison. It also expands the punishment process beyond the existing HK legal system by empowering an administrative official new to criminal justice – the Privacy Commissioner for Personal Data—to initiate and undertake criminal investigation of possible violations. The amendment only vaguely defines the offense, and the Commissioner does not have to go through the better-regulated police. The department is empowered to bypass the Department of Justice by itself making the decision to initiate prosecutions. 

The new law also authorizes the Commissioner to access electronic devices without a warrant in “urgent circumstances” (as defined by the Commissioner). Moreover, the new law purports to have extraterritorial effect, authorizing the Commissioner to notify internet service companies anywhere in the world to take down material the Commissioner deems to be doxxing! This report summarizes this development and the earlier warning issued by tech companies against adoption of this amendment because of its curbing of free expression. It will be important to see how Google, Facebook, Twitter, and others react now and whether the Commissioner will move to suppress doxxing by pro-Beijing forces as well as pro-democracy elements.   

Is this a crackdown on Hong Kong civil society or simply justifiable rule of law?

By Jerome A. Cohen

Here is the latest disturbing news from Hong Kong. After refusing a police demand for information, four members of the group that plans the city’s annual Tiananmen Massacre vigil were arrested. Note in the HKFP's story Carrie Lam's defense of this attack. It is not, she claims, a crackdown on civil society since, by definition, civil society does not include any organization that refuses to comply with the interpretation of "the law" asserted by the government and the police. I heard a similar defense from the deans of Beijing's five major law schools when in 1992 they came to my hotel to protest a speech I had just made to the Foreign Correspondents Club condemning the PRC courts for becoming an instrument for suppressing the Chinese people. How could "a friend of China" make such an outrageous charge, they asked, since "counterrevolutionaries" were not within the definition of "the people"!

This latest HK case will accelerate the pressures on both the HK Bar and the courts. Ms. Chow, one of the people arrested, is a barrister who today was scheduled to defend one of the 47 human rights activists already being prosecuted for violating the new National Security Law. Her case and that of her newly-arrested colleagues raises critical legal issues. I assume that some fellow litigating lawyers, undeterred by the recent submission to political pressures of the HK Law Society composed of office lawyers, will present, as usual, a vigorous and able defense. What a challenge for the beleaguered judges!

Should foreign judges continue to serve in Hong Kong?

By Jerome A. Cohen

Here is an important article worthy of broader attention. It was recently reported that Canada’s ex-chief justice, Beverley McLachlin, has renewed her term on the Hong Kong Court of Final Appeal. Until this past year, I thought that, on balance, it was desirable for the overseas non-permanent judges of Hong Kong’s Court of Final Appeal to cling to their cushy and limited responsibilities. But the balance appears to have shifted. Increasingly they seem mere ornaments whose largely nominal presence in major controversial cases misleads the public at home and abroad into believing that all continues to be well with the Hong Kong courts.

In assessing the wisdom of their continuing participation, one should ask questions such as: Do they take part in the new national security cases that are beginning to occupy the courts? What role did they play, for example, in Jimmy Lai’s bail case?

Canada’s Professor Alford and Lawyer Shi are surely right in regretting that former Chief Justice McLachlin renewed her appointment at this time, lending her great prestige to what must now be called the Takeover rather than the Handover of Hong Kong. Will she and her white, male overseas colleagues analyze and expose the restrictions being imposed on the Hong Kong judiciary?

There is no risk that American non-permanent overseas judges will inform the public of the true situation since the Basic Law has been interpreted to exclude Americans from selection among the “common law” judges from which this elite is chosen. “Commonwealth” has replaced “common law” in practice. Yet, building on the English experience that dates back to Lord Coke, the United States also offers useful examples of the complex political-legal struggles to establish and maintain judicial independence.

Focus on the Court of Final Appeal seems to divert attention from the more important and difficult dilemmas of the many Hong Kong judges with foreign nationality who serve on the lower courts that bear the principal burdens of coping with Beijing’s restrictions.

Getting Away with Murder? China and Extradition, Current Case 2—Taiwan

By Jerome A. Cohen

While we await the outcome of New Zealand’s struggle with its China extradition challenge, here is a message that I recently received from a Taiwanese colleague at my request. Mr. Chan, a HK person, and the alleged murderer of his HK fiancée while they were visiting Taiwan, has been free for almost two years since completing his sentence for money laundering committed in HK by illegally drawing on the bank account of the deceased. Indeed, he even is receiving police protection wherever he goes. Given the evident animus of the victim’s family and friends, he probably needs it.

The statements below – one from John Lee, now HK Chief Secretary but until recently Secretary for Security, made last October and the other from Taiwan’s MAC made in October 2019 – cry out for investigation, update and analysis by journalists and legal scholars. The nub of the problem, as most of us would suspect, is the refusal of the HK government to negotiate ad hoc extradition or a general extradition agreement with a Taiwan government that refuses to recognize the PRC claim that Taiwan is part of China. Thus, Taiwan is denied—or denies itself—the right to punish murder committed in its territory. HK, of course, is denied—or denies itself—the right to punish one of its citizens for murdering another of its citizens outside HK, something that the PRC Central Government would not normally tolerate. 

There are some mysterious factual questions as well as complex legal ones. For example, did or does Mr. Chan want to return to Taiwan to face prosecution? If so, why?  This strange stalemate should not be ignored or tolerated, as the victim’s mother seeks to remind the HK Government, which, having failed in its effort to use the Chan case as the excuse for seeking the infamous bill that would have authorized extradition/rendition to the Mainland, seems to have other priorities. 

---

Below you can find HK Gov’t’s latest statement and TW gov’t’s latest statement on the Chan Tong-kai case. Chan was prosecuted in Hong Kong for money laundering (committed in Hong Kong—the money he withdrew from the victim/girlfriend Poon's account was proceeds of an indictable offence). Chan was subsequently convicted and sentenced to 29 months' imprisonment. He was release on Oct. 23, 2019. 

1.     Hong Kong’s latest public statements 2020-10-21 

Secretary for Security speaks on the Chan Tong-kai case

Following is the transcript of remarks by the Secretary for Security, Mr John Lee, at a media session after attending the Legislative Council meeting today (October 21):
 
Reporter: Secretary, first of all, did you personally read mother Poon's letter and your response to her letter because she is appealing to you to do more? Can you just tell her how many times have the Police and your bureau, a Government minister, reached out to Taiwan to proactively try to solve the stalemate? My second question is about the point on police's protection for Chan Tong-kai. Can you explain to mother Poon as well as taxpayers why is he still under police protection in a luxury home when he is supposed to be surrendering himself? You were also explaining earlier that it is up to him to go and apply for his own travel document to go to Taiwan to surrender himself. He is free to go out himself. Why is he not doing that to handle and proactively solve this problem and go to Taiwan? Earlier from your introduction and your explanation, are you blaming the society for opposing the extradition bill that your administration was pushing last year for this stalemate that we have right now, because last time Taiwan already said that it wouldn't accept such kind of extradition even if the bill was passed. Can you clarify on that point as well? Thank you.
 
Secretary for Security: To answer your last question first, don't put words into my mouth. Society has made its own choice so I will have to somehow accept that choice. In regard to the protection for Chan Tong-kai, the Police of course made an assessment of the threats to his safety. This assessment will be reviewed as the situation needs. I shall leave it to the Police to make assessment of the threat that he may be facing so as to make the decision. But a person under police protection doesn't mean that he cannot do what he wants. He is free to do what he wants and police will accordingly take measures. Chan can, if he chooses to, go to a particular place to further his surrender, he is free to do so. Lastly, regarding what we have been doing to facilitate Chan's surrender, you have to understand that it is facilitation. He has served his sentence, he has not committed any crime in Hong Kong, so there will be no compulsory measures that the Government can take. The decision is his. He has indicated his wish to surrender so what we can do is to facilitate. And if we can do it in accordance with what the law allows us to do, of course we will do it. When the Taiwan side, through the Police working level co-operation channel, asked us to pass on information to Chan, we have expeditiously done that and so informed the Taiwan side. I cannot force the decision on Chan and I cannot force any arrangement on Chan. If Chan has been allowed to go to Taiwan, his indication is made clear to us, then we can do what the law allows us to do.
 
Reporter: Have you read mother Poon's letter personally?
 
Secretary for Security: I of course have read her letter many times and I understand her feelings. I want as much as she does to facilitate the surrender of Chan. I sincerely appeal to everyone that we have to understand this case's special circumstances. It has not happened before. It is about a man who has served his sentence, has not committed any offence (in Hong Kong now), and the present laws in Hong Kong do not allow us to do legal assistance with the Taiwan side. We are operating under all these limits. Some of these limits are legal restrictions. While I sincerely try my best, I can't do anything in contravention to the law. I sincerely appeal to anybody to look at this case from this perspective. The key for further action is not the Hong Kong Government; the key for further action is the Taiwan side. Open the door, open the window. 

2.     MAC Responds to the Hong Kong Government's Statement on Taiwan Homicide Case

MAC Press Release No. 92, Date: October 20, 2019

The Mainland Affairs Council (MAC) issued the following solemn response to the Hong Kong government's statement on Taiwan homicide case:

(1) The Hong Kong government claimed that the decision of the homicide case suspect Chan Tong-kai to surrender himself to Taiwan is purely out of his own free will. However, the timing of the announcement, the background of the person said to have persuaded Chan to surrender, various illogical circumstances, and the consistent rhetoric on the handling of this matter by the Hong Kong government and Mainland media, all together, make abundantly apparent that the surrender was carefully arranged by political powers behind the scenes. It is no wonder that many media channels and individuals suspect that Chan was manipulated to surrender. The Hong Kong government's statement does nothing to dispel these doubts.

(2) Taiwan has long made clear on several occasions that the two sides need to establish a mutual judicial assistance and cooperation mechanism for homicide cases to achieve a fundamental solution. However, the Hong Kong government has not responded to the multiple judicial requests by Taiwan. It also refused to allow the Ministry of Justice and other agencies in Taiwan to jointly participate in communication last November. As for the letters mentioned by the Hong Kong government, Taiwan had clearly replied and stated the hope to focus on mutual legal assistance in this matter. However, the Hong Kong government failed to respond positively. Instead, it only sought to use negotiations between the two sides to act as an endorsement of its amendments to the Fugitive Offenders Ordinance. Therefore, as early as May 2 this year, the MAC stated at a regular press conference that Taiwan would have reservations if negotiations were conducted under the framework of the existing Fugitive Offenders Ordinance. This position was also conveyed to the Hong Kong government on the same day through existing channels. The claim that Taiwan has not responded is entirely at odds with the facts and is intended to mislead the public. MAC expressed the deepest regret for this wrongful claim by the Hong Kong government.

(3) The Hong Kong government stated that should Taiwan raise any request for evidence in processing Chan’s surrender case, it would positively assist in accordance with the law. However, it also said that there is no law that allows Hong Kong to pursue any criminal justice cooperation with Taiwan. With this self-contradictory statement, we would like to ask the Hong Kong government, exactly how does it plan to assist Taiwan? Or whether this is simply another excuse to shirk responsibility?

(4) The defendant and the victim in the homicide case are both Hong Kong residents. A responsible government would do its utmost to bring justice and consolation to the victim's family. However, over the past months, the Hong Kong government has done many things but thinking about how to resolve this matter. It first ignores Taiwan's judicial requests, and then uses this opportunity to promote the widely opposed amendments to the Fugitive Offenders Ordinance. Now it is trying to circumvent its own proper jurisdiction. This exhibits an astonishing level of contempt for the murder of a Hong Kong resident.

(5) The political maneuvers of the Hong Kong government in this case is to fundamentally and methodically underscore that the Hong Kong government lacks jurisdiction over offenses committed by people of Hong Kong outside Hong Kong, but in the Mainland area, must therefore be sent to mainland China for trial. The Hong Kong government tries to use the same logic to bring Taiwan under the so-called "one China" political framework. It emphasizes that Taiwan alone has jurisdiction over the Chan Tong-kai homicide case because it considers Taiwan to be a part of China and consequently Taiwan and Hong Kong cannot hold negotiations on mutual legal assistance. In reality, Hong Kong has signed agreements on "mutual legal assistance in criminal matters" with 30 countries worldwide, including Australia. Why will it not negotiate and sign such an agreement with Taiwan? The MAC believes that such political maneuvers undoubtedly seek to achieve "extradition to China" without the "Extradition to China bill," denigrate Taiwan's sovereignty, and undermine justice and human rights. Taiwan will never accept this, nor will we play along with this shenanigan.

(6) The MAC reiterated that Taiwan will, on the basis of reciprocity, dignity, and mutual benefit, proactively and promptly provide relevant evidence pertaining to the homicide case and cooperate with the Hong Kong government on subsequent prosecution of the murder case if the Hong Kong government so requests. Taiwan also hopes that the Hong Kong government will promptly and pragmatically address our request and together work to ensure justice is served for the victim.

Johannes Chan: Hong Kong University's Chilling Message

By Jerome A. Cohen

Here is the recent news about Johannes Chan’s departure from Hong Kong University. He is a wonderful scholar and long-term, courageous critic of the PRC’s increasing repression in Hong Kong. Before, during, and after his distinguished service as the eminent Hong Kong University Law School’s dean, his published analyses have provided invaluable insights into Beijing’s manipulations of the Joint Declaration, the Basic Law and the former UK colony’s traditional legal system. At 62, he is at the top of his form. Yet the university’s political leaders have now diminished his status to, at best, that of a part-time adjunct lecturer. They previously rejected the formal recommendation that, after his deanship, he would become one of the university’s most prominent administrators. How far the discrimination against him will go is hard to say. Some time ago he was even denied entry into Macao on national security grounds.

Professor Chan would grace the faculty of any law school anywhere and will undoubtedly have opportunities to teach in many common law countries, as many prematurely “retired” HKU professors have done. I have no idea what his plans might be but hope that he will not leave  Hong Kong unless, like some other invaluable human rights advocates there, he believes his personal security is threatened by government prosecution. Hong Kong’s embattled barristers will surely welcome his newly-liberated participation in their efforts to slow the process of dictatorial controls.

Margaret Ng's Statement at Conclusion of Today's Trial

Margaret Ng’s wonderful statement, made under enormous pressure, deserves the broadest distribution and will be a powerful indictment of the Communist application of law in Hong Kong. I don’t know whether the Judge’s reasoning in granting her, Martin Lee, and Albert Ho suspended sentences was in recognition of their distinguished careers dedicated to political freedom and the rule of law or whether it was on the ground of age, other factors, or a combination. There were also slight sentencing differences in each case. Martin, by far the oldest, drew a month less than others.

Margaret embodies the best combination of training in journalism initially, and then law and philosophy, followed by a lifetime of application of these skills in the political-legal trenches of Hong Kong warfare. She has been an invaluable player. My mind goes back to over forty years ago to the lunch we had when she asked whether it was wise to add the study of law to her repertoire. She would have been a force without it, but legal skills enhanced her capacity, as we witnessed today. Ironically, after the early Court of Final Appeal decision in the groundbreaking post-Handover Ng Ka Ling case, when she was given the relatively rare opportunity for foreigners to testify in Washington before the Senate Committee on Foreign Relations, I think I annoyed her by taking a different view of the wisdom of the CFA’s decision. But her arguments were well-made and persuaded many, I believe.

What now needs to be confirmed by experts in Hong Kong criminal justice is the set of restrictions under which people serve the term of their suspended sentence. What types of conduct can result in termination of suspension and imposition of imprisonment? Will Margaret, Martin, Albert and others continue to be free to fully express their views and to meet anyone they wish to? I assume this is a question of traditional Hong Kong law, since these prosecutions were not brought – they could not be because the events occurred in 2019 – under the National Security Law. Yet, we have seen that NSL policy regarding denial of bail was cited by a Hong Kong court in a case that was prosecuted under traditional HK law. Have the suspended sentence rules regarding conduct been altered? What are they?

Not an April Fool's Joke: Decision on the Nine HK Leaders Released

By Jerome A. Cohen 

Here at last is the decision in the long-awaited prosecution of the 9 prominent HK democratic leaders for their participation in the August 18, 2019 protest against the proposed extradition/rendition law. 89 pages to wade through, but an apparently reasoned opinion by Judge Amanda Woodcock. Unlike some of her colleagues handling earlier cases, she may emerge from this with added prestige from handling a controversial case in a responsible way, even though the outcome is politically disappointing to many of us. As the wife of KH Leung, always the most demonstrative of the protesters, said: “It was expected.”

There are many questions about the case, at least in my mind, and I hope that closer observers of Hong Kong justice will aid our understanding. I have never understood why Mr. Au and YC Leung pleaded guilty while the other 7 decided to go to trial. Perhaps Au wanted to take responsibility for leading the march and thereby relieve the others from guilt. YC Leung, a moderate, may have hoped for a lenient sentence by not contesting the charges. But breaking with the other 7 seemed puzzling. The judge did continue to grant him bail, together with most of the others, pending completion of the mitigation hearing that will give them a chance to obtain lenient sentences on April 16.

The maximum sentence will be five years, which no one will receive, I believe. But sentencing will challenge the judge to distinguish among varied cases. One pro-Beijing supporter has voiced support for giving Jimmy Lai a life sentence, impossible in this case but not at all impossible, given his age and the accumulated prosecutions to which he is being subjected.

The granting of bail between now and April 16 was certainly the right choice. But it makes one wonder why Joshua Wong and Agnes Chow were not also granted bail before their mitigation hearings in a previous, similar case. The court this time wisely rejected bail denial but did amend the terms to prevent legal fleeing of the jurisdiction.

It is notable that Paul Harris, the new president of the Bar Association who is under vicious attack from Beijing forces, represented YC Leung and managed to get in a plea for leniency before the mitigation hearing was postponed until April 16. I do not know who is representing Martin Lee, Jimmy Lai, Margaret NG, Albert Ho and the others. It will be interesting to see the arguments made on behalf of leniency for each of them, given differing circumstances. Martin Lee is 82. I think he deserves a suspended sentence of some sort, and not only because of age. Albert Ho is also a respected friend and distinguished civil rights campaigner, as is Margaret Ng, not to mention the other ex-legislators. These lawyers will also face collateral non-criminal sanctions that often follow criminal conviction.

I wonder how they will deal with prospects for appealing the convictions. Appeal is unlikely to be successful in view of a previous decision of the Court of Final Appeal, but the defense has access to able counsel, and appeal, while very expensive for the defendants, may give them further time to be free on bail and to mobilize further public support.  The constitutional questions involved may benefit from updated consideration by the CFA, although prospects for modification or reversal in the current political climate seem grim.

Bail Decisions Must Give Reasons

By Jerome A. Cohen

Here is a report on the outcome of the three days of most recent bail hearings involving the HK 47. Only 11 have been granted bail. Because of the unfairly restrictive HK rules against media reporting and commenting, we know little about the crucial details.

Why have some been granted bail and most others denied? In democratic systems judicial decisions must be based on reasons. Presumably the judge will give her reasons in a written opinion to be delivered in a few days. One hopes her opinion will really do so rather than merely list factors to be considered and then simply announce the individual decisions without explaining why the application of the various factors has led to the various outcomes. 

Moreover, why did the Government give up its opposition to bail for four of the suspects? That would be very important to know for purposes of dealing with the many other cases.

Note that those granted bail “are banned from making any speech or committing any act that MAY BE SEEN as breaching the security legislation”. “May be seen”? By whom? Police or prosecutors? Eventually the courts? The NSL is so expansive and hopelessly vague that this is an impossible standard. Moreover, does this restriction include not only “subversion” and all other possible violations of the NSL but also possible violations of Hong Kong’s pre-NSL security legislation ban such as that on “sedition”?

The result thus far in this most recent NSL prosecution is that 36 democratic activists will continue to be imprisoned for many months and perhaps years while awaiting the conclusion of their cases, even though it is quite possible, if HK judges and defense lawyers can maintain their independence, that they will eventually be acquitted! Moreover, all those who have been granted bail have been silenced and neutered for this entire period even though they too may be acquitted. 

Is it any wonder that those Hong Kongers opposed to the NSL who have not yet been prosecuted have in many – not all – cases been silenced too? Unless, of course, they have managed to flee abroad.

Some Hong Kong National Security Bail Decisions Are Delayed

By Jerome A. Cohen

Here is an SCMP report on this morning’s bail hearing before the Hong Kong High Court. Several items are worth noting.

In rejecting the request of one defense lawyer to grant interim bail to his client pending conclusion of the Court’s week-long review of the Chief Magistrate’s decision to grant bail to a minority of the 47 detained democratic figures, Judge Toh is quoted as saying: “This has to be done properly. Things done in haste are sometimes when mistakes are made.” Was this not a so subtle criticism of the lower court’s handling of the original applications of the entire 47 suspects? Or simply the statement of a truism that should obviously have been recognized by the lower court before deciding to inflict a black eye on Hong Kong justice?

Did the prosecution offer any clues about why it decided, sua sponte, not to pursue its appeal of the granting of bail to four of the fifteen suspects by the lower court? This is an essential point if the public is to glean any guidance from these events about the government’s interpretation of how the National Security Law is to be applied. Why were these four suspects belatedly favored by the prosecution? If defendants and their lawyers can know this, then they will be better able to argue for bail in other cases.

And what about the appeals from denial of bail by the twenty-five suspects whose cases the media seems to ignore?

I hope that, after taking a week to consider the arguments on both sides and conducting further hearings, Judge Toh will not only issue written decisions but also detail her reasoning and how it applies to her decision in each case. This would improve upon the performance of Judge Pang in denying Jimmy Lai’s most recent request for bail review.

Bail for Some, Denial for Most

By Jerome A. Cohen

Only 15 out of 47 Hong Kong opposition figures were granted bail after a marathon hearing lasting four days. As one protester observed, this decision could be characterized as “sheer political calculation,” something for everybody. Bail for roughly one-third of this extraordinary pack – throwing a bone to the democracy campaigners ­­– and denial for roughly two-thirds, which should keep the Beijing forces from running amok against the courts.

But what was the basis for the judge’s decisions? Why did some defendants win bail, but most did not? Will the public ever know? Why has it been denied this critical knowledge? The judge’s explanation of why he rejected defendants’ request to suspend the usual prohibition against media reporting is ludicrous. He told the defendants he was rejecting their request in order to safeguard the defendants’ interests! How thoughtful! I wonder why the defendants’ able lawyers did not think of this before making their request!!

This SCMP report is faulty in failing to state that the usual prohibition is permitted to be suspended whenever the court believes that it is in the interests of public justice to do so. This is what Judge Anthea Pang decided in the most recent Jimmy Lai bail case. Why did Chief Magistrate So not make the same decision in a case that involves not merely one person but 47? Again, the public is not allowed to know how he differentiated all these cases from Lai’s.

There are many things still unknown about this weird prosecution. For example, we know the government appealed the granting of bail. Did none of those denied bail appeal? If not, why not? Apparently some 25 have appealed.

In the meantime, the bail appeals will now be heard in the next day or two. Will the public also be denied knowledge of the reasons for the outcome?

What a great charade this is for the government! In the name of protecting the rule of law it prosecutes a huge number of democratic politicians for exercising the political rights that the Basic Law system prescribed for conducting LegCo affairs and free elections. Eventually, if the courts have any backbone left, the government may lose its case. But in the interim the government can inflict horrendous punishment on these democratic politicians, silencing even those who may be allowed to remain on bail for the next three months while the government completes its investigation before trial and probably for the years required for completing the judicial process.

Neither these unfortunate 47 nor Jimmy Lai will be able to protest this week’s NPC transformation of Hong Kong’s electoral system. And have we heard from Martin Lee, Margaret Ng and the many other lawyers and democrats who would normally be playing an active role in opposing this oppression? What bail restrictions are they suffering?

My Thoughts on the Proposed HK Electoral Reforms

By Jerome A. Cohen

It has recently been reported that Beijing plans to “reform” Hong Kong’s election system, expanding the membership in the local legislature and the Election Committee that selects the Chief Executive in order to assure its control. This is obviously the end of the political democracy envisioned by One Country Two Systems as agreed in the Joint Declaration and the Basic Law. It is the comprehensive culmination of a piecemeal process that has been under way for some time. Hong Kong will still have a governmental system called 1C2S, but its content has now dramatically changed. The forms of government in HK will continue to be distinct from those on the Mainland but the substance will plainly be the same – the Chinese Communist Party will call the shots and its minions in HK will loyally implement this new manifestation of socialist democracy with Chinese characteristics and be rewarded as “patriots”.

This is not only a huge defeat for the people of HK but also a huge embarrassment to Xi Jinping and the CCP before the world. It is also implicit disrespect for one of Deng Xiaoping’s landmark achievements, which is consistent with other efforts by the Xi regime to downgrade Deng’s status.

Moreover, the Xi regime will not stop at transformation of the electoral system. It will next accelerate the efforts it has been making to rein in the courts and the legal profession. All branches of government must be brought to heel in a totalitarian system. And these “reforms”, of course, are only part of the broader effort to transform Hong Kong society through reshaping education from kindergarten through university, from dominating the media and via other means.

Hong Kong Makes a Farce of Procedural Fairness

By Jerome A. Cohen

What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.

The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.

The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.

And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.

It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.

The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!

Pressure Mounts on the Hong Kong Bar Association

By Jerome A. Cohen

Here is an important report summarizing the many efforts being made by Beijing and its Hong Kong minions to press Paul Harris into resigning from his new post as chairman of the Hong Kong Bar Association. This is only part of the broader campaign to try to neuter the Bar Association. If that proves successful, it will limit the capacity of independent courts to fulfill their duties. Judges need the help of good litigating lawyers in all controversies.

I don’t know Mr. Harris, but by all accounts, he is a very able lawyer, a dedicated law reformer, and a vigorous proponent of human rights. Beijing and the Hong Kong  government see him as a force to be crushed, especially after he began his tenure as Bar chairman by suggesting that certain provisions of the new National Security Law for Hong Kong be amended in order to make them consistent with Hong Kong’s constitutional values, the Basic Law, and the International Covenant on Civil and Political Rights that the Basic Law makes applicable to Hong Kong.

Harris, as the article points out, has the confidence of most members of the Bar Association. No one ran against him in the chairmanship election. One has to ask, however, why once again is the Bar chair not a local ethnic Chinese, as so often was the case in earlier years?  Is it because the Bar is already feeling intimidated by Beijing’s political pressures and abilities to restrict the professional prospects and even the personal freedom of even the ablest barristers in the city? We should note that the great legal light Martin Lee and Margaret Ng, another able lawyer and liberal political leader, stood trial today on charges of organizing and participating in unauthorized assembly. Both pleaded not guilty, and the trial has been adjourned until next month. At least they, unlike Jimmy Lai, are out on bail.

Fight or Flight? Hong Kongers Debate Whether to Leave for the UK

By Jerome A. Cohen

Here is an important and largely encouraging story. A Perfect Storm is brewing in both Hong Kong and the UK over emigration to the UK, and it has major lessons for all other liberal democracies that are, rightly, concerned about Beijing’s oppression and the plight of Hong Kong people. 

This is Boris Johnson’s finest hour, and I hope that he and his Cabinet can follow through on not only welcoming people who wish to flee PRC dictatorship but also working hard to resolve the many challenges these newcomers face in a UK beset by the pandemic and its long-existing economic and sociological problems in dealing with racial minorities.

The US should immediately follow suit, as should the other obvious preferred destinations of self-exiling Hong Kongers. Here is a huge potential role not just for governments but for charitable foundations like Ford and Rockefeller and the newer ones spawned by immense wealth in America and elsewhere.

Here is also a great opportunity for the many foreign observers of the tragedies being inflicted by Xi Jinping who feel frustrated by their apparent inability to respond in opposition. We can reach out in our own communities to facilitate the arrival and assimilation of the newcomers. This will also belatedly sensitize us to the need to reach out to immigrants from other countries who have done so much to contribute to our domestic welfare.

Perhaps the most encouraging recent report from the UK is the one that demonstrates the net economic and talent benefits that Hong Kong arrivals will contribute to Britain’s struggling economy.

Free Speech in Hong Kong is Further Eroded

By Jerome A. Cohen

Activist Tam Tak-chi was arrested in September of this year

Here is an important Hong Kong Free Press essay on the case of activist Tam Tak-chi who was arrested in September of this year on a sedition charge. It is by Tom Kellogg and a Georgetown colleague who feels the need to adopt a pen name. Several points strike me as worth emphasizing.

One is how difficult it will be to maintain public attention and understanding as these HK prosecutions proliferate. Publicity about one case obscures developments in others. Joshua Wong, Agnes Chow, and Ivan Lam were sentenced the same week that information about Tam’s case came out, and those cases drew attention away from Tam’s. 

Moreover, as the Kellogg essay points out, it is increasingly difficult in practice to observe a distinction between prosecutions brought under regular Hong Kong laws and those now emerging under the new National Security Law. The Tam case is shocking in this respect. Tam is not being tried under the NSL. Yet the judge assigned to try his case is one of those judges on the tiny list of those sufficiently government-minded to be eligible to try NSL cases.

The denial of bail to Tam for the eight months before his scheduled trial means that he is already being severely punished for “crimes” for which he has not been convicted. Even the judge who inspires government confidence will have to contend with the presumption of innocence at trial and the further requirement that proof of conviction must be “beyond a reasonable doubt”.

It is troubling that Hong Kong criminal trials have distant trial dates while the accused are required to remain in jail. Jimmy Lai is also surely being punished during the long period before his trial, even though he too, at least in principle, may not be found guilty.

It is encouraging to see that some Hong Kong magistrates, despite the immense pressures that now descend on them, are still strictly putting the prosecution to its proof in accordance with the law. They undoubtedly will not be added to the list of approved national security judges.

Sadly, it is pathetic that pure speech, unlinked to acts or threats of violence, is now being punished in the name of “national security”, even if the speech is on college campuses. A Communist Party that used to preach the virtues of “criticism and self-criticism” is ridiculously fragile.

Simon Young Response Regarding Freezing Assets in Hong Kong

Here is an informed expert analysis by Associate Dean Simon Young of the HKU Faculty of Law. He said that I can make it available to interested parties.

Under our anti-money laundering laws, the police have a wide power to effectively freeze funds in bank accounts by writing a letter to the bank.  The letter will normally state the police reasonably suspect the funds to be proceeds of an indictable offence and, unless the police grant the bank consent, the bank may be guilty of money laundering if they allow the customer to deal with the funds.  This effectively freezes the funds and the bank cannot tell the customer why (as there is a tipping off offence in the legislation).  One might think this is a police power that could be abused especially since there is also a power for prosecutors to apply to a court to restrain property reasonably believed to be proceeds of crime.  However, our Court of Appeal has upheld the constitutionality of this ‘no consent’ police power so long as it applies only during the investigatory stage, which must proceed without unreasonable delay and only on the basis of reasonable suspicion.  Here is the link to the decision: https://www.hklii.org/eng/hk/cases/hkca/2019/70.html