National security suspect’s jury trial bid rejected

National security suspect Tong Ying-kit has lost his bid to overturn the decision to deny him a trial by jury, after a High Court judge on Thursday refused to grant him leave for a judicial review.

Tong, 24, is the first person in Hong Kong to face trial under the Beijing-imposed national security law.

The ruling by High Court judge Alex Lee – a designated national security judge – means Tong’s trial is set to be heard before three national security judges that have been handpicked by Chief Executive Carrie Lam.

It’s slated to begin on June 23.

Tong faces charges of terrorism and inciting secession for allegedly driving his motorbike into a crowd of police officers while flying a protest flag on July 1, 2020 – hours after the security law came into force.

Government prosecutors, in a notice to Tong’s lawyers, had said there cannot be a jury “for the protection of personal safety of jurors and their family members”, quoting one of the three reasons explicitly set out in the national security law for a case to be tried without a jury.

The defence argued that the government’s failure to accord procedural fairness made the decision unconstitutional, as protections offered by the Basic Law were removed when Tong wasn’t given adequate grounds for the decision or a chance to respond.

In his ruling, the judge agreed with prosecutors that an indictment doesn’t give defendants in Hong Kong the general or constitutional right to a jury trial, adding that this is still compatible with the Basic Law.

Though the Basic Law stated that the principle of trial by jury shall be maintained, Lee said that doesn’t entail the preservation of all elements of the system.

He also said given the security law’s special status and its unambiguous wording, it’s evident that its legislative intent is to abrogate any previous right to jury trial, if existed, for cases endangering national security.

The judge also agreed that there is no requirement for the Secretary for Justice to inform and hear from the defendant before the decision was made, noting that the security law didn’t provide any provisions on such requirement despite its “high human right content”.

“If one looks at the expressed grounds contained in Article 46 of the National Security Law for invoking the power, namely the protection of state secrets, involvement of foreign factors and jury protection… the express grounds given are those that it would neither be reasonable of appropriate for the Secretary for Justice to seek an accused’s views on them before trial,” he said.