Hong Kong's New Secret Police "Hotline"

By Jerome A. Cohen

This article helps put flesh on the bare bones of the initial announcement of the unprecedented secret, anonymous HK “hotline” for reporting suspected NSL violations to Hong Kong’s new secret police. For the first week of implementation, harvesting an average of 1,400 pieces of information per day seems to be a promising start for the Mainland-dominated national security unit.

There is evident Hong Kong Government interest in seeing whether this local equivalent of the former East German “Stasi” secret police “hotline” might soon equal or surpass the “hotline” HK police established last year for tips concerning alleged acts of violence, which is now up to 3,000 tips per day!

Yet this HK secret police innovation need not look to the practice of the discredited and overthrown East German regime. As the report points out, the PRC’s Ministry of State Security (MSS), which controls the new HK unit, has been successfully running a similar operation throughout the Mainland since 2017. However, that institution has apparently been so troubled by the receipt of many “malicious reports” that it issued a warning in April that such anonymous accusations could result in “legal consequences”. Nevertheless, the MSS does not want to discourage would-be tipsters and has begun to pay cash rewards to reliable informers. It would be good to know the criteria for compensating informers.

I wonder how long it will be before the HK counterpart offers similar cash rewards and follows another MSS precedent by establishing “a reporting platform” like the one the MSS established in the Mainland soon after it began operating the national “hotline”.

The Party Central Political-Legal Affairs Commission’s comments on Hong Kong

By Jerome A. Cohen

Following the surprise public pledge of China’s Ministry of Public Security (MPS) to “fully direct and support Hong Kong police” to stop violence and chaos, which I commented on earlier in my blog, the Party Central Political-Legal Affairs Commission (Party PLC) announced that it’s very necessary for national security agencies to establish institutions in Hong Kong.

I was asked why the Party PLC makes a statement on Hong Kong. The Party PLC controls the MPS, the Ministry of State Security (MSS) and other government security agencies. Since the MPS has announced that it will “direct” the Hong Kong police, the Party PLC will in fact be indirectly directing the Hong Kong police, if it does not already do so.

The Central Party authorities undoubtedly also influence the Hong Kong Government in other respects, not only via the Central Government Liaison Office and the Ministry of Foreign Affairs Office in Hong Kong but also through less public and official channels, including Party channels.

This influence inevitably reaches the Department of Justice and its Director of Public Prosecutions, which is where the decisions are made to prosecute alleged offenders on the basis of evidence produced by the police. This evidence will soon openly include information produced by the national security agencies, which have until now been quietly cooperating with the Hong Kong police.

This in no way formally impinges upon the independence or jurisdiction of the Hong Kong courts. I have seen no evidence of Party infiltration of the Hong Kong courts or Hong Kong Government interference with the courts. Of course, there is need for further investigation and analysis of the meaning of “interference”. In every legal system, and that of Colonial Hong Kong was no exception as I know from personal experience dating from 1963, courts operate within their particular political, social and economic as well as legal contexts, and judges, individually and collectively, are not unaware of the local context or devoid of personal relationships and ambitions. In particular, it will be interesting to learn, if we can, whether MPS or MSS agents or, much more likely their intermediaries, will attempt to contact Hong Kong judges. Representatives of the security agencies are not likely to issue Hong Kong judges the “invitations to tea” so dreaded on the Mainland, but don’t rule out amiable dinners with mutual friends!  

China’s Ministry of Public Security to “fully direct and support Hong Kong police”

By Jerome A. Cohen

Here’s a statement on May 29 by the Ministry of Public Security (MPS) vowing to “fully direct and support Hong Kong police” to stop violence and chaos. The timing is fascinating. At a time when some pro-Beijing elite in Hong Kong are seeking to assure the public that the establishment of national security organs in Hong Kong has minimal significance and that their offices there will only play a modest, quiet role similar to that of the Ministry of Foreign Affairs office, why does the MPS make a statement that, at least in the minds of millions, will maximize anxiety about the forthcoming national security legislation by the National People’s Congress Standing Committee?

To be sure, other millions in Hong Kong may feel greater comfort at the prospect of the notoriously efficient MPS directing the Hong Kong police and thereby enhancing prospects for suppressing violence, vandalism and even peaceful mass protests, but they are not the ones raising international alarms in opposition to the forthcoming legislation.

At a time when the forthcoming legislation is being finalized, is this a move by the MPS to assert its preeminent role in controlling Hong Kong’s security, upstaging the Ministry of State Security (MSS) that the non-Mainland media often assumes will play a dominant role? The two major PRC secret police institutions often have had difficulties sorting out their respective responsibilities on the Mainland where foreign and HK elements are involved. Although generally receiving less media attention, the “guobao”, national security division, of the MPS has seemed ever present in restricting and punishing the human rights activists and lawyers I have been involved with over the years, not the MSS. But perhaps that is because the MSS usually operates more unobtrusively.

Can the people of Hong Kong gain comfort from this MPS announcement?

Some proposals for resolving the government crisis in Hong Kong

By Jerome A. Cohen

Given the way things have now turned in Hong Kong, there will be no need for PRC intervention via the People’s Liberation Army and People’s Armed Police so long as momentum will develop toward an apparent improvement in the situation.

If the Hong Kong Government comes forth with a plausible platform for independently reviewing allegations of police misconduct, that will be a start. It could be accompanied by or followed by withdrawal of the extradition proposal and the retirement of Carrie Lam. If the courts begin to exercise more leniency in evaluating and sentencing cases brought before them, soon reversing the conviction or reducing the sentences of Benny Tai and others, for example, and if the Secretary for Justice becomes less zealous in pursuing new cases, that will help.

Further peaceful and massive demonstrations will be desirable to keep the pressure on. But still necessary, besides the newly-formed Neutral Legal Observers Group, will be establishment of an independent Citizens Reconciliation Group or similar institution to move the process forward to achieve the positive reforms required.

Of course, we cannot naively expect the Hong Kong Government not to investigate, identify and perhaps informally seek to intimidate and even punish people it labels organizers. That would be a setback, if not a disaster. And Beijing’s barrage of fake news is surely likely to continue.

China’s kidnap attempt in Hong Kong and harassment of overseas Chinese

By Jerome A. Cohen

Here’s an account by a Hong Kong media owner of a cross-border kidnap attempt by China, “How I Escaped a Kidnap Attempt by Chinese Agents in Hong Kong.” This account, which appears to be accurate, describes the most brazen PRC attempted kidnapping in Hong Kong yet reported.

It is good to know that the HK police prevented it from being successful, although whether they would have done so had they known at the outset that the kidnappers were PRC security police rather than conventional gangsters is a question. How Mr. Gu managed to resist long enough the extraordinary armed show of force by the PRC agents is a mystery. Apparently, when the local police discovered the men they detained were PRC agents, they initiated the cover-up that led to muffling of the event. Other, successful kidnappings have left me with the strong belief that the PRC agents could not have been successful in spiriting those victims to the mainland without the acquiescence of the HK police and immigration authorities.

Also of great interest in Mr. Gu’s report is his claim that very high-level representatives of the PRC State Security and Public Security ministries have often “interviewed” him in the U.S. “Household names” — in what households??

There have been similar reports of such missions in other cases of Chinese who have sought refuge in the U.S. (and Canada). It would be interesting to know how such visits are managed. How do such visitors get visas? To what extent are their activities monitored by our own security agencies? What understandings have been reached between American and Chinese security agencies concerning the rules that each side will respect when conducting undercover operations in the other side’s jurisdiction? I wonder what the rules in HK now are restraining PRC secret police since the publicity that has accompanied PRC kidnappings there since 2015. These incidents cry out for investigative reporting.

Finally, it is pathetic to see some HK and PRC officials and observers simply parrot the tired phrase “interference in internal affairs” in response to foreign warnings that an increasing number of official HK and PRC actions will adversely affect international business. Are the interests of foreigners and the adverse effect on their interests purely domestic questions?

Lawyer-client meeting in “national security” cases in China

My colleague Yu-Jie Chen has just sent around her comments below on the police’s written decision to reject the lawyer-client meeting (“不准予会见犯罪嫌疑人决定书”) in recent cases related to the oppression of lawyers and other human rights advocates since July 9 last year (“709”). With her permission, I’m pasting her comment below, followed by my response.

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“This kind of decision to reject the lawyer’s request to meet with the criminal suspect seems to have been standardized into a form and used in several cases of the 709 activists and lawyers, including lawyer Wang Yu (here), Li Heping’s 24-year-old assistant Zhao Wei (here), law scholar Liu Sishin (here), and activist Wu Gan (the latest 不准予会见 decision in his case was issued on Feb. 6). All these decisions have been issued by Tianjin City public security authorities (including its Hexi branch), which has been in charge of the 709 crackdown as far as I know. In addition, the case of lawyer Zhang Kai, who has been detained in Wenzhou, also saw such a document issued by the Wenzhou police (here). I’m sure there are many others that I haven’t seen.

The basis invoked by the police is Article 37 (3) of the Criminal Procedure Law, which, in cases involving crimes endangering State security, terrorist activities or significant amount of bribes, asks defense lawyers to obtain the approval of investigating agencies before meeting with their clients.

However, we should note that in the September 2015 regulation issued by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice to protect lawyer’s rights to practice (“关于依法保障律师执业权利的规定”), the police are required to provide reasons (说明理由) in rejecting the lawyer-client meeting. I don’t think simply producing a form as a formality meets this standard. But in reality, I wonder if there is any remedy for such a violation.” 

Written notice rejecting the request of ZHAO Wei's defense lawyer to meet with Zhao

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 Written notice in WANG Yu's case

The use of such a form reveals the cavalier manner in which the police violate their nation’s Criminal Procedure Law by arbitrarily denying the right to counsel in their attack on rights lawyers and other human rights advocates whom they have detained. Indeed, the police are doing exactly what Article 9 of the major September 2015 Five-Institution Regulation interpreting the 2012 Criminal Procedure Law explicitly forbids. They are failing to give lawyers requesting a meeting with their detained clients the reasons for rejecting the meeting.

They simply fill in the bare details identifying the case on a printed police form that claims the requested meeting would interfere with their “national security” investigation OR reveal state secrets, without giving any facts or justification of such alternative claims. This flies in the face of Article 9’s stern admonition that investigating agencies may not interpret “as they wish” the “national security” and other exceptional provisions authorizing them to deny counsel their right to meet detained clients in certain circumstances. This admonition, based on decades of experience demonstrating how in practice the police always turn narrow legislative exceptions into broad arbitrary rules, is specifically designed to prevent the police from arbitrarily restricting the right of lawyers to meet their detained clients.

According to the law, lawyers should be able to vindicate their rights by seeking administrative review of the police refusal at the next higher police level and by asking the local procuracy to investigate the arbitrary police refusal. Such efforts are apparently being made but no one is holding his breath in the expectation that this will bring relief. For example, over 15 years later I am still waiting for the office of the Supreme People’s Procuracy in Beijing to send me its promised report reviewing the lawless detention of a Sino-American joint venture’s Chinese CFO by the city of Jining in Shandong Province.

In most cases, initially and repeatedly, police denial of lawyer access to detained clients seems to be orally communicated. Issuance of a written form seems to be done belatedly and reluctantly as part of a customary effort to block or at least delay any review of the decision.

The Hexi District Sub-Bureau of the Tianjin Public Security Bureau seems to have attracted a very large number of detention cases related to the 709 crackdown. I note that the September 18, 2015 Decision denying her lawyer’s access to young Ms. ZHAO Wei is numbered 1,082 for the year!!! That does not mean that the huge number of such cases that preceded it last year were all 709 cases but it seems likely that many of them were such supposed “national security” cases. And we do not yet know how many more such cases occurred last year after September 18. Moreover, there may be some double counting since defense counsel sometimes try a second time later in their client’s detention. The Five-Institution Regulation authorizes the meeting of lawyer with client in alleged “national security” cases once the meeting will no longer prove an obstacle to investigation or the risk of revealing state secrets is gone.