What’s occurring in Hong Kong’s courts?

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Thousands of individuals in Hong Kong are dealing with court docket motion for participating in 2019’s mass protests, which grew out of opposition to a mainland extradition invoice into wider requires democracy.

While some are well-known names from town’s political opposition, many others are widespread residents who determined to affix the months-long demonstrations.

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More than 10,000 folks have been arrested up to now three years for his or her alleged involvement within the protests, authorities criticism and pro-democracy political actions, in keeping with Hong Kong authorities information. Of these dealing with prices, the overwhelming majority are folks under the age of 30, though additionally they embrace a few of the metropolis’s veteran opposition leaders.

On Friday, two youngsters have been sentenced to 5 and a half years in jail every for rioting, after being cleared of an earlier cost of manslaughter over the dying of a 70-year-old man who was hit within the head by a brick thrown in a confrontation between rival teams of protesters.

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With the territory’s vibrant custom of civil disobedience, Hong Kong folks weren’t unfamiliar with the chance of arrest, however infractions that have been as soon as thought-about minor offences at the moment are ending up in jail time.

Many of town’s pro-democracy politicians have been arrested underneath nationwide safety laws that was imposed by Beijing in 2020, and have been languishing in jail for months in pre-trial detention.

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Based on British widespread legislation, Hong Kong’s justice system was as soon as thought to be probably the most unbiased and sturdy in Asia, however has been thrust into the highlight for the reason that nationwide safety legislation was put in place.

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Foreign judges have left town, in addition to rank and file legal professionals, whereas US lawmakers might quickly sanction Hong Kong prosecutors for offences like “arbitrary detention of individuals for exercising universally recognised human rights”.

Chinese “mainland-style criminal justice” and “lawfare” techniques have discovered their method into Hong Kong, mentioned William Nee, analysis and advocacy coordinator at Chinese Human Rights Defenders.

“The volume of cases is part of it, and part of it is the lengthy legal process that people face – and we’re only two years into it,” he instructed Al Jazeera. “We predict it could go on for many, many years where people are unable to travel, unable to leave Hong Kong, unable to speak to the media, and unable to participate in public life,” he mentioned.

Who are on trial and why

More than 1,000 trials are underneath method and extra are resulting from start in 2023, in keeping with information compiled by the Hong Kong Democracy Council (HKDC), a US-based advocacy group.

While there are other ways to depend the info, the advocacy group estimates that Hong Kong is now home to 432 “political prisoners” – folks arrested for his or her political views or actions – who’ve accomplished sentences, with 582 folks nonetheless in custody or awaiting trial.

Many of the arrests over the previous three years are linked to the 2019 protests, though not all.

Common prices associated to the protests embrace collaborating in an illegal meeting and rioting, whereas these accused of being “leaders” face prices like incitement and organising an illegal meeting. More than three-quarters of Hong Kong’s “political prisoners” are younger folks under the age of 30, in keeping with the HKDC. More than half are under 25.

Beijing imposed the nationwide safety legislation in 2020.

The fallout has been felt among the many political opposition, civil society leaders, journalists, and “almost all non-violent pro-democracy activities in Hong Kong”, in keeping with Eric Lai, a Hong Kong legislation fellow on the Georgetown Center for Asian Law.

Media mogul Jimmy Lai Chee-ying, founder of Apple Daily, walks to a prison van to head to court.
Media mogul Jimmy Lai, the founding father of Apple Daily, has been in jail pending trial underneath the nationwide safety legislation for the reason that finish of December 2020 after a decide revoked his bail [File: Tyrone Siu/Reuters]

Between July 2020 and June 2022, 203 folks have been arrested underneath the legislation and 123 charged, in keeping with information compiled by Lai. Many defendants face further prices underneath Hong Kong’s peculiar felony statutes.

While the safety legislation particularly refers to crimes of subversion, sedition, “terrorism” and “collusion with foreign forces”, greater than 50 folks have been arrested for “seditious” or “secessionist” speech underneath just lately revived sedition legal guidelines that date from the British colonial period.

So far solely 10 folks have been convicted underneath the brand new legislation, however many circumstances have been delayed by Hong Kong’s strict COVID-19 insurance policies, in keeping with Lai.

National safety police have focused folks like Jimmy Lai, the previous writer of Apple Daily and longtime critic of the Communist Party, in addition to 47 activists and opposition leaders charged and arrested for organising an unofficial main election for the pro-democracy camp in 2019.

They have additionally arrested leaders of the protest umbrella group Hong Kong Alliance in Support of Patriotic Democratic Movements in China for failing to submit proof to police, whereas scholar teams have been charged with “terrorism”.

Sedition legal guidelines have shut down a lot of Hong Kong’s unbiased press as information shops have folded after workers have been both charged or feared being charged underneath the sedition legislation.

A brand new class of criminals

The nationwide safety legislation has created a brand new felony process in Hong Kong that strays from its widespread legislation custom.

National safety defendants are heard earlier than a panel of three judges handpicked for phrases of 1 yr by town’s chief government, mentioned Nee, which implies the justices can simply be eliminated.

Unlike different felony circumstances, there isn’t any jury and defendants are almost solely denied bail whereas authorized proceedings proceed – usually for months.

Defendants in these circumstances are tasked with proving they won’t “continue to endanger national security” along with assembly peculiar bail situations, in keeping with a Hong Kong defence lawyer and rule of legislation monitor who spoke on situation of anonymity.

Judges wearing robes and horsehair wigs attend a ceremony to mark the opening of the legal year in Hong Kong
Hong Kong’s judicial system relies on British widespread legislation and was as soon as thought to be probably the most unbiased within the area [File: Philip Fong/AFP]

Some of probably the most high-profile circumstances embrace the 47 individuals who have been picked up over the first and have already spent greater than a yr in detention after the prosecutors appealed their preliminary proper to submit bail.

Bail hearings themselves have develop into a nearly not possible activity as, underneath the brand new legislation, defendants have misplaced the presumption of innocence – a elementary proper within the widespread legislation system.

Guilty till confirmed harmless

Cases heard within the peculiar felony system, which usually concern rank and file protesters, have additionally modified dramatically over the previous three years.

The first main change has been the place they’re heard.

Where circumstances of civil disobedience have been as soon as referred to the Justice of the Peace’s court docket – the bottom rung of the felony justice system – they’re now usually despatched as much as the district court docket or High Court, in keeping with the defence lawyer. Magistrates are restricted to two-year sentences, however the district and High Court can impose phrases of so long as seven years and life imprisonment, respectively.

The defence lawyer mentioned in lots of circumstances, even rank and file protesters shifting by means of the peculiar felony justice system have misplaced the presumption of innocence.

Typical circumstances concern prices like rioting, though many defendants weren’t caught within the act however as an alternative close by the scene or carrying tools like goggles or masks. Both gadgets have been utilized by protesters and journalists to guard themselves from tear gasoline and pepper spray, which turned an indicator of the protests within the late summer time of 2019 and was even fired at bystanders.

The lawyer mentioned they felt that in lots of circumstances protesters had misplaced the presumption of innocence as judges would situation contradictory verdicts relying on the case.

“In a system where the same facts can lead to different outcomes before different judges, when judges consistently disregard defence testimony and choose to rely on police testimony even when incredible – those are not fair trials, that’s not the rule of law,” the lawyer mentioned.

From left, Hong Kong scholar Hui Po-keung, Catholic Cardinal Joseph Zen, barrister Margaret Ng and singer Denise Ho arrive for an appearance at a court in Hong Kong
More than 1,000 trials are at present underneath method in Hong Kong because of 2019’s protests and the imposition of the nationwide safety legislation. Those dealing with prices vary from widespread residents to a few of Hong Kong’s most well-known faces together with scholar Hui Po-keung (left), Cardinal Joseph Zen, barrister Margaret Ng and singer Denise Ho (proper) [File: Kin Cheung/AP Photo]
A person standing outside a court in Hong Kong carries a poster showing the 47 pro-democracy politicians and activists arrested for organising a primary to choose their own candidates for an election that was then postponed
The case of the 47 pro-democracy politicians and activists arrested for organising their very own main to decide on their candidates for the Legislative Council election that was then postponed, is likely one of the most high-profile circumstances at present within the Hong Kong courts [File: Kin Cheung/AP Photo]

Slow wheels of justice

Criminal procedures have additionally taken longer, partly resulting from COVID-19, mentioned Samuel Bickett, a lawyer and Hong Kong legislation fellow on the Georgetown University Law Centre who served 4 and a half months in jail for a 2019 altercation with an off-duty Hong Kong police officer.

While Hong Kong legislation doesn’t assure the fitting to a speedy trial, critics say the delays are disproportionate to the crime.

“The average time from arrest to sentencing through mid-2021 is 380 days, that’s extraordinarily long. I mean we’re not talking about a murder case here. This is more than a year to get through an unlawful assembly case or mostly very simple cases,” Bickett instructed Al Jazeera primarily based on information he’s compiling for an upcoming Georgetown Law report.

Bickett’s felony case took a yr and a half from begin to end, he mentioned.

Bail has additionally develop into tougher to safe even for these charged for offences that don’t contain the safety legislation, and may include onerous situations comparable to curfews, or rules associated to highschool for younger defendants.

Longer and harsher sentencing

Sentencing has additionally develop into harsher no matter age or previous felony file, mentioned Steven Vines, a veteran Hong Kong journalist who left town in 2021. Public order circumstances that after may need led to fines or neighborhood service now entice jail time.

HKDC information discovered that of nearly 3,000 folks prosecuted, 67 p.c had been convicted, receiving a mean jail sentence of 1.6 years. Sentences for suspected protest “leaders” and folks charged underneath the nationwide safety legislation are even longer, and lots of face a number of prices.

“People with no criminal convictions whatsoever are being given custodial sentences for things like unlawful assembly, which in the past would’ve incurred a fine, nothing more. People who are being convicted of more serious offences are getting sentences which are akin to armed robbers with a criminal record,” Vines instructed Al Jazeera.

Georgetown’s Lai, nonetheless, says this isn’t fully sudden.

Hong Kong has lengthy used public order legal guidelines towards protesters, even earlier than the 1997 handover to China.

But lately, Hong Kong’s courts have indicated that they’d come down more durable on non-violent protesters amid prolonged circumstances surrounding the protest leaders of 2014’s Umbrella Movement. Another case across the identical indicated that rioting offences would even be met with harsher phrases.

John Lee (on left) stands om a stage with Chinese president Xi Jinping
John Lee (left), with China’s President Xi Jinping, has made safety his precedence and is planning a Hong Kong model of Beijing’s safety legislation [File: Selim Chtayti/Reuters]

Hong Kong’s authorities has mentioned the prosecutions and nationwide safety legislation are essential to revive order after 2019’s protracted protests introduced the territory to a standstill.

The metropolis’s new chief government John Lee, a former police officer who was safety chief in the course of the protests, plans to enact a native model of Beijing’s safety legislation. Hong Kong may quickly see further legal guidelines governing on-line information and web posts, just like legal guidelines handed by Singapore.

For now, prosecutions of 2019 protesters are anticipated to proceed over the following two years because of the prolonged backlog – the nationwide safety circumstances might take even longer because of the quantity of proof compiled by prosecutors and successive delays. In the meantime, a lot of Hong Kong’s opposition and civil society will stay silenced, exiled or in jail.

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