Report from Hong Kong

What's going on with law and justice in Hong Kong ... Large number of accused in democracy clamp-down ... Special judges who accept subservient role ... Preliminary election regarded as subversion ... Legislative Council expected to be "patriotic" ... Newspaper proprietor in prison ... Text books being re-written ... Exodus accelerates ... From Our Man Clinging On In Hong Kong

Claudia Mo: former member of the HK Legislative Council, now in prisonFormer Hong Kong legislator, journalist and lecturer Claudia Mo Man-ching appeared numerous times on Australian media in 2019 and 2020, putting across the perceptions of a popularly elected democratic politician on what was behind Hong Kong's mass demonstrations and street battles.  

No longer. 

She is one of 47 charged on February 28 with an identical charge of Conspiracy to Commit Subversion. This is under the National Security Law  (NSL), a law imposed by Beijing on Hong Kong in June 2020 which carries heavy penalties for subversion, secession, collusion with foreign forces etc. etc. 

These concepts are not defined, there is no case law and the ultimate interpretation lies with the National People's Congress.

Mo, like most of the others charged with the same offence, has been refused bail on the grounds that if released she would likely re-offend. They are all due back in court on May 31, but the government is understood to have applied for another delay, at which point it will ask for the case to be transferred to the High Court, ensuring there will be further set-backs. 

The number of defendants likely ensures that the trial and sentencing will be a very long drawn-out affair with neither timing nor outcome predictable. 

Punishments - few, if any, not guilty verdicts are expected - are likely to be very varied. 

Mo was among the most moderate of the democrats and had never previously been arrested but had been interviewed frequently, especially by foreign media, because of her presentational and English-speaking abilities. 

Like other prominent democrats she is vulnerable to what is clearly an exercise in punishment for their past roles as legislators and peaceful advocates of democracy. 

The notion that as individuals they a real threat to the Chinese state requires singular imagination, unless any opposition to Communist absolutism is so defined.

Under the NSL, the government appoints special judges to hear these cases - i.e. those who are assumed to accept that the judiciary is subservient to the executive, a core Communist Party tenet. The court proceedings have the form but not substance of common law jurisdictions.

The various bail hearings in the High Court were especially instructive. The court was open, attended by journalists and independent legal observers but the details cannot be reported. 

One described statements and interventions by the judge as a highly prejudicial. Legal arguments and facts cut little ice in what appeared a political judgment, as to be expected of an NSL appointee. 

The specific charge against the 47 accused relates to the holding last July by pro-democracy hopefuls of a primary election to decide on who should be chosen to run in Legislative Council elections due to take place in September. 

The idea was for diverse democrats to have a united front to maximise the number of seats they could win and perhaps - an unlikely prospect - even get a majority in the legislature, though half of its seats were elected by business and professional groups mostly aligned with the government. 

Democratic lawmakers all participated in this primary even though it was not necessary to do so other than to show solidarity. Democrats' hopes were high because they had trounced the government in elections to District Councils in 2019, an indication that the silent majority blamed the government more than the demonstrators for the mass protests and violent events of that year. 

Protestors storm the Legislative Council in 2019

The charges brought seven months later under the NSL is that the primary election, conducted by an independent pollster, was a conspiracy to subvert the government. 

Between those dates the government announced a one-year postponement of the September election giving the Covid situation as an excuse. All democrats elected in 2016 were invited to continue to serve for one more year. All but one agreed.

However, on November 2020, following a critique of HK democrats from the National People's Congress in Beijing, the HK government summarily disbarred four of these elected legislators. (Others had previously been removed via dubious judicial and administrative means). At this point all the others resigned.

After being briefly detained in January and released on bail pending investigation but prior to charge, the 47 were then re-arrested and charged on February 28. A few were given bail, most not. The government appealed against some being allowed bail and won most of those appeals.

Subsequently, on March 30 the Standing Committee of the NPC announced a law imposing "reform" of Hong Kong's legislative system in a way which further marginalises directly elected members. 

The number of indirectly elected members from new small "functional" constituencies is greatly increased. The new "patriotic" legislature will be "elected" in September. 

Meanwhile, the existing legislature is already just a rubber stamp for an executive which does what it is told by Beijing. The irony is that while Beijing insists that HK be run by "patriots", the senior officials and legislators who do its bidding almost all have close relatives - sons, daughters, husbands, wives - with passports from western countries, and multiple overseas properties. 

The owner of the popular anti-government newspaper Apple Daily, is in jail on multiple charges. All his assets have been frozen which will probably mean the closure of the paper and its online sites. 

School textbooks are being re-written and senior academics in social science-related subjects are finding their contracts not being renewed. 

The exodus of educated young people has accelerated dramatically. The same is true with expats other than those in financial services who cannot bear living anywhere they might be taxed.

In addition to the 47, and several other cases under the NSL, courts have taken to handing out severe sentences for what in other jurisdictions would at worst be misdemeanours. 

In particular, attendance at or encouragement of demonstrations by prominent democrats is being severely punished even though freedom of assembly is a right under Hong Kong's Basic Law. 

Long before the advent of Covid, the police routinely refused permissions for demonstrations attended by hundreds of thousands. 

Martin Lee: suspended sentence

Recently, Martin Lee, the 82-year-old eminent barrister who headed Hong Kong's democracy quest for many years, was given a suspended sentence for illegal assembly in 2019 and others including Jimmy Lai jailed. 

Judges comments and sentencing suggest that the whole judicial system, not merely cases under the NSL, is being perverted by pressure from a Beijing that has always opposed the concept of an independent judiciary. 

Some UK judges still cling to being occasional members of Hong Kong's Court of Final Appeal, apparently vainly believing they help uphold common law. However, Australia's James Spigelman quit in September, apparently because of the NSL. 

See Justinian's report: Appeal judges - the boiling frogs of Hong Kong