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April 21 (Reuters) - On March 23, a Hong Kong High Court judge denied former Democratic Party lawmaker Andrew Wan’s bail appeal and sent him back to Lai Chi Kok prison.
“Keep going!” Wan shouted as he was led away by guards. “The Department of Justice will be judged by heaven.”
Wan is one of 36 pro-democracy activists denied bail and being kept in custody more than a month after being arraigned on charges of conspiracy to commit subversion for organizing an unofficial primary election. Forty-seven activists were charged overall, in the biggest crackdown on the city’s opposition since a national security law was imposed by China last June. Only 11 have been granted bail. The next appearance in court for all the defendants is scheduled for May 31.
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The legal saga has stunned many in Hong Kong, who say it is a dramatic display of how the national security law is radically altering the city. The sweeping law punishes acts of subversion, secession, terrorism or colluding with foreign forces by up to life in prison.
The bail process is ongoing. In a hearing on April 14, Claudia Mo, a former journalist and democratic lawmaker, was denied in her second attempt to seek bail.
The hearings started at West Kowloon Magistrates' Courts on March 1. Over the next four days, the defendants were subjected to more than 40 hours of hearings, denied a change of clothes throughout and initially denied a shower. Ten were taken to hospital, some suffering from physical exhaustion.
At least 12 of the 47 announced on social media that they would no longer be involved in politics and some resigned their positions. Some deleted their Facebook pages, including four members of the pro-democracy Civic Party.
In an open letter published April 16, the four called for the party to disband. “Please forgive us for our withdrawal from the party and our proposal for dissolution,” they wrote in the letter. “Everyone’s peace and safety is what we care about deeply in our hearts.”
Several district councillors, who deal with local issues like public transport links and garbage collection, also said publicly they would quit. They include Gary Fan, who said on his Facebook page that he was in remand and could no longer “perform my district councillor duties.” In a March 17 post, Fan added that it was his “lifetime aspiration” to participate in politics and “improve people’s livelihoods, strive for democracy, speak up for social justice.”
In the courtroom next door to the marathon hearings, at times some of the defendants’ families and supporters wept as they watched the proceedings via live video link.
Legal experts and government critics say the arduous proceedings are part of a campaign to crush Hong Kong’s democracy movement after the protests in 2019, which shook the city and presented China’s Communist Party rulers with the most serious popular challenge since the Tiananmen uprising in 1989.
Leaders in Beijing and Hong Kong have said the protests plunged the city into an unprecedented crisis and posed a grave security risk. Hong Kong Chief Executive Carrie Lam said on April 15 that the national security law “has effectively restored stability in our society and helped Hong Kong get out of the shadow of violence.”
The defendants’ ordeal is highly unusual in Hong Kong, one active judge and two retired judges told Reuters. The city long took pride in the independence of its British-style judicial system. Now, the current and former judges said, the bail proceedings – herding opposition figures into a single courtroom for days, and depriving them of sleep and other basic rights - have marked a dramatic departure from the common law tradition of Hong Kong, developed over 156 years of British rule.
“I think what has happened is most unsatisfactory in terms of both the treatment of the defendants and the efficiency of the process,” said Simon Young, a barrister and law professor at the University of Hong Kong. “We can ask whether it was necessary to charge everyone at the same time and process them all together.”
One of the retired Hong Kong judges told Reuters: “It was appalling what went on. A judge is a master of his courtroom. He has full discretion on sensible timing and the right to request the people appearing before him are being properly looked after. I just cannot fathom how this was allowed to go so terribly wrong."
Some in the territory supported the way the case was handled and backed the denial of bail for many of the defendants.
“It is enshrined in Article 42 of the national security law that defendants shall not be granted bail unless the court is convinced that they will not continue to commit offences against the national security law,” pro-Beijing lawmaker Holden Chow told Reuters. “The court rightly handled the entire legal procedure and the bail arrangement for these accused, in accordance with the law.”
Article 42 of the security law states: “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security."
That provision establishes a high threshold for defendants to demonstrate they will not break the law in order to be granted bail. It is a departure from the Hong Kong Bill of Rights Ordinance, which states that detaining defendants should not be the general rule, except where there are clear risks of a defendant committing further offences or absconding. Where there is a conflict, the national security law supersedes all local laws in effect in Hong Kong.
The application of the new law means defendants could spend months in custody before trials begin. One active judge told Reuters the bail hearings were reminiscent of “show trials” used by China and other autocracies to publicly humiliate and ultimately break political opponents. The judge, who sits in the magistrates court, spoke on condition of anonymity.
“In China, it’s far worse. But worse is coming in Hong Kong,” said Jerome Cohen, a professor at New York University and expert in Chinese law.
Over the past year, Hong Kong authorities have disqualified democrats from public office and snuffed out protests. And they have jailed prominent activists such as Joshua Wong and media tycoon Jimmy Lai. On April 16, Lai was sentenced to a total of 14 months in prison for two separate charges of unauthorised assembly. China’s leaders are also now overhauling the city’s electoral system to ensure only people it deems "patriots" can govern Hong Kong.
The Chinese government did not respond to questions from Reuters.
The Hong Kong Department of Justice, which decides who will be prosecuted, said in a statement to Reuters that as a general principle, “prosecutions would only be commenced if there is sufficient admissible evidence to support a reasonable prospect of conviction and if it is in the public interest to do so.”
The conduct of the bail hearing drew an unusual response from the Judiciary, the independent institution responsible for upholding the rule of law. In comments to Reuters, the Judiciary said it was “reviewing the overall arrangements of handling cases involving a large number of litigants and observers at all levels of courts.” It directed Reuters to a statement it made on March 5, released the day after the four-day bail proceedings, in which the Judiciary said Chief Justice Andrew Cheung had ordered the review.
The appraisal, the Judiciary said, was being done “with a view to adopting improvement measures,” including with regard to scheduling of hearings and court sitting hours.
Cohen said the Judiciary’s March 5 statement revealed “the enormous, unprecedented challenges that the prosecution inflicted on the courts in this case.”
The 47 face charges of conspiracy to commit subversion for organizing and taking part in a primary vote in July last year to select the pro-democracy candidates most likely to win a seat in Hong Kong’s Legislative Council in an election scheduled for September. The charge sheet alleges that the defendants tried to bring about the dissolution of the Legislative Council “so as to paralyse the operations of the government,” and ultimately force the city’s leader - the chief executive - to resign.
Beijing and Hong Kong authorities regarded the democracy movement’s primary-election strategy as unacceptable. The city’s security chief, John Lee, called it a “premeditated plan to sink Hong Kong into an abyss.”
In July last year, the government announced it was postponing the election because of the pandemic. Last week, it set the election for Dec. 19.
The courtroom ordeal started around noon on March 1, as the 47 defendants were brought into court by about a dozen officers in olive-green uniforms, and seated on plastic chairs inside a glass dock, and two long wooden benches just outside it.
The long rectangular room - with beige wood paneling, high ceilings and Hong Kong’s red bauhinia flower emblem - was packed with the defendants and their lawyers. Relatives of the defendants, journalists and some foreign diplomats watched a live video link from the courtroom next door.
Victor So, the chief magistrate, sat in black robes behind a desk.
Before proceedings started, some were jovial. Defendant Gwyneth Ho, a journalist-turned-activist, sang a few notes of a Cantopop song when a microphone was passed around to be tested. Another defendant, Lam Cheuk-ting, a senior Democratic Party member, said: “Wife, I love you.”
The mood changed quickly. Almost immediately, the prosecution requested an adjournment of three months to allow for further investigations. Lead prosecutor Maggie Yang, the acting director of public prosecutions at the Department of Justice, asked that the defendants be held in custody during that time.
The defendants, initially arrested in January and released on bail, were originally scheduled to report to police in early April. Instead, they were summoned a month early. Paul Harris, a senior lawyer and head of the Hong Kong Bar Association, who was representing a former lawmaker, asked the judge why the defendants had been charged if investigations were so far from completion. That was unusual, legal experts told Reuters.
Yang said more time was required to examine evidence. This included further investigation of 400 digital devices, among them computers and mobile phones, according to local media. Stand News, a local news website, reported that Yang said police had finished inspecting just 130 of the devices.
Judge So granted the request for a three-month adjournment, and began the slow process of hearing defendants’ pleas for bail.
By 10 p.m., 10 hours after proceedings started, bail applications for only six of the defendants had been heard. Prince Wong, 23, one of the youngest defendants, was slumped in her seat. Claudia Mo, one of the oldest at 64, had her head on her lap.
The submissions went deep into the night. At 1:44 a.m. everyone in the court was startled by a loud bang. Defendant Clarisse Yeung, a pro-democracy district councillor, was sprawled on the floor after fainting. Medics were called in. Judge So adjourned the hearing as Yeung was taken on a stretcher to an ambulance and the hospital. According to a post on her Facebook page later, she was found to have low blood pressure and vomited, but otherwise was fine.
Soon afterwards, three other defendants, Mike Lam, Roy Tam and Leung Kwok-hung, were also taken to hospital, although it was not clear for what. Each was later discharged.
At about 2:45 a.m., the judge finally ended proceedings for the day. The defendants were taken to various detention centers across the city. But just hours later, starting at 8 a.m., they were taken in handcuffs back to the court building in batches, wearing the same clothes. Some pumped their fists and gave “V for Victory” salutes.
The bail submissions continued at a slow pace. Twelve hours later, at around 8 p.m., the judge allowed some defendants who had already made their submissions to leave the court early to rest.
Some time after 10 p.m., Judge So rejected a request that families be allowed to bring a change of clothes for the defendants. Granting such a request was “a bit difficult,” he said, as it would have to go through established procedures for those in detention.
The Judiciary said in its statement that it wasn’t in a position to comment on “the arrangements for defendants while remanded in custody as they do not fall within the purview of the Judiciary.”
The court finally adjourned at around 10:35 p.m., with the judge allowing the defendants to shower in the morning.
Judge So did not respond to questions sent to the Judiciary.
In the past, say jurists, bail hearings in Hong Kong have tended to be swift, with defendants, other than those facing serious crimes like murder, usually granted bail on the presumption of innocence.
'LIFE WITHIN THE WALLS'
After another night in lock-up, the defendants were brought back to the court on Wednesday morning for a third day.
Jeremy Tam, a former Civic Party lawmaker who has deleted his Facebook page, made a tearful plea for bail. Some relatives and journalists wiped their eyes with tissues.
In an audio message recorded before the bail hearings, Tam sounded wistful. “Everyone, please don’t worry about me. I will get used to life within the walls,” he said. His comments were posted on March 14 on the Facebook page of a diner he runs.
“I hope everyone will continue to support Three Meals Hong Kong,” Tam posted, referring to the Hong Kong-style diner, which opened in December. “I will deliver takeaway meals to you all again soon.”
Tam’s lawyer did not respond to questions from Reuters.
Outside, on the eighth floor of the courthouse, veteran democrat Lee Cheuk-yan sat dejected. “It’s very sad,” he said of his colleagues facing charges. “They’ve given up everything they’ve fought for,” he told Reuters.
Lee was himself in court that week in a separate case in which he was charged with unauthorised assembly stemming from a protest in 2019. On April 16, he was sentenced in that case and for a second charge of unauthorised assembly, and given a total of 14 months in jail.
Back in the courtroom, during the recess, some of the defendants seemed dazed.
Former Democratic Party chairman Wu Chi-wai sat, head in hands, in a corner. Others flipped despondently through the pages of pro-democracy newspaper Apple Daily, in which they were the headline. Joshua Wong, one of Hong Kong’s most prominent young activists, moved about whispering in the ears of lawyers and other democrats.
Two other defendants, Owen Chow and Lester Shum, were taken to hospital later that night. Reuters could not obtain details about their medical conditions.
Some Hong Kong activists say they fear the city's legal system is beginning to resemble the administration of justice on the mainland, where the ruling Communist Party controls the courts and forces some high-profile defendants to read out public confessions. This tactic was used in Mao Zedong’s purges and more recently during Xi Jinping’s anti-corruption campaign.
One of the senior leaders ensnared in the anti-graft drive was a former People’s Liberation Army general, Guo Boxiong, who was jailed for life in 2016 on charges of taking bribes from people seeking promotions. Footage of the trial that was later released showed him reading out a confession saying his case had been dealt with “completely correctly.”
International rights groups say dissidents on the mainland are regularly jailed on national security grounds including subversion. They have little legal recourse in the courts, and are sometimes subjected to ill treatment and torture during detention, these groups say.
Chinese authorities have denied accusations of torture and say they abide by the rule of law.
Closed courts have been commonplace for politically sensitive cases in China, including in the aftermath of the 1989 Tiananmen crackdown. The trials last month of Canadians Michael Kovrig and Michael Spavor, who were charged with spying for overseas interests after being arrested in 2018, were held behind closed doors. The trials lasted a matter of hours. No verdict has been handed down in either case.
Kovrig and Spavor were arrested in China soon after Canadian police detained Meng Wanzhou, the chief financial officer of Chinese tech company Huawei Technologies Co, on a U.S. warrant. Diplomats from 26 countries were prevented from attending the Kovrig trial in Beijing. Canada and the United States have criticised the proceedings as lacking transparency, and have called for an immediate end to their detention.
In the aftermath of the Hong Kong bail hearing, some of the defendants remained defiant. “I have become a prisoner sitting in the dock of this political case under the national security law,” Gwyneth Ho wrote in a post on her blog, called “Note from prison – how do I view myself in my current position?”
“Freedom of speech is the most important thing, and I will persist with it,” wrote Ho, who noted that she was not able to change her clothes for five days.
Under the new national security law, Hong Kong’s leader effectively has the power to appoint judges to hear security cases, while trials for “complex” cases can be moved to the mainland, although that has not happened so far. Security officials can also now search premises, seize electronic devices, conduct surveillance and freeze assets without court authorisation, significantly expanding police powers.
“You see the sword of Damocles” that the mainland government “has over courts in Hong Kong,” said Cohen, the legal scholar. “If they don’t like the way these cases are handled, they’ll just take them into China.”
At 1 p.m. on Thursday, March 4, the fourth day of hearings, the bail submissions were finally completed. Outside the courtroom, supporters began chanting “release all political prisoners.”
It had been the longest bail hearing since Hong Kong’s handover from Britain to China in 1997. Just before 8 p.m., the judge delivered his decision.
Judge So granted bail to 15 of the 47 defendants. Yang, the public prosecutor, immediately appealed the decision to release some of the defendants.
Judge So granted Yang’s appeal - and ordered all the defendants back into custody.
There were gasps in the adjacent court, where the relatives sat. Some started crying, others shouted.
Elsa, the foster mother of one of the defendants, social worker Hendrick Lui, knelt on the floor outside the court and wailed after hearing that Lui had been granted bail, only for it to be immediately revoked and for him to be taken back into custody.
“The rule of law is dead!” she screamed.
Wong and Mo, the youngest and eldest women defendants, were both denied bail. So was Gwyneth Ho.
The next day, the public prosecution dropped its objections to bail for four defendants, Clarisse Yeung, Lawrence Lau, Hendrick Lui and Mike Lam, and they were released on bail. Hong Kong’s Department of Justice did not say why the objections were dropped.
But the bail hearings are still continuing.
On March 13, Jeremy Tam appeared in Hong Kong’s High Court for another bail hearing. The judge, Esther Toh, overturned a decision by the lower court to grant him bail.
After the ruling, Tam looked towards his wife in the gallery and made a heart shape with his hands, then shook his head slowly. He is now one of the 36 defendants who will remain behind bars until their next scheduled court appearance on May 31, with no indication of when their trial might start.
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