National Security Law Photo: VCG

In response to some media reports saying that the Hong Kong Department of Justice has ordered a non-jury trial for dozens of suspects who have been charged with conspiring to subvert state power, the department said on Wednesday that the decision of whether the jury is needed is based on provisions of the National Security Law (NSL) for Hong Kong. 

The AFP first reported that dozens of suspects including some who were involved in organizing and planning the so-called "35-plus" political strategy in 2020 would see a non-jury trial as the case involves foreign elements. Citing the relevant documents, the AFP also said the reason of departing from the tradition of jury trial is for the personal safety of jurors and their family members, and a risk of perverting the course of justice if the trial is conducted with a jury. 

47 anti-government figures in Hong Kong including local scholar Benny Tai Yiu-ting were formally charged with conspiring to subvert state power in February 2021. Besides Tai, those charged include anti-government group Civil Human Rights Front convener Jimmy Sham Tsz-kit, disqualified legislator Leung Kwok-hung, former lawmaker Lam Cheuk-ting and anti-government legislator Jeremy Tam Man-ho, according to local media reports.

The AFP's report caught the public's attention as trials with a jury are a feature in the common law legal system in Hong Kong. The local newspaper Ming Pao also reported on Wednesday that the case of Apple Daily founder Jimmy Lai will also be tried without a jury. 

When considering whether to issue a certificate under Article 46 of the NSL for a case to be tried without a jury, the Secretary for Justice would take into account the relevant provisions of the NSL and the individual circumstances of each case, the department said in a statement sent to the Global Times on Wednesday. 

The purpose of the relevant provisions that stipulate the arrangement for a case to be tried by a panel of three judges is precisely to ensure a fair trial and the due administration of justice. The arrangement does not undermine any legitimate rights and interests of the defendant, it said. 

The Hong Kong Bill of Rights Ordinance, which incorporated many of the International Covenant on Civil and Political Rights provisions, does not provide for a right to be tried by jury in Hong Kong, so a trial by jury is not a protected right or fundamental right or constitutional right in Hong Kong, Lawrence Ma, barrister and chairman of the Hong Kong Legal Exchange Foundation, told the Global Times on Wednesday. 

"Since it is not a fundamental and constitutional right, it can be reduced or curtailed," Ma said, noting that in practice, in highly emotional cases, some of the jurors convict based on personal feelings. 

If the jurors share the same or similar political belief as the 47 charged, these jurors might choose to acquit based on sympathy rather than evidence, he continued. 

"There is no opportunity to know or to discover a juror's political inclination or for the prosecution to challenge a politically bias juror; and as a result, an unchecked jury panel might simply acquit not based on evidence," Ma said. 

In criminal proceedings concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family member, according to the Article 46 of the NSL.