Hong Kong’s top judge has questioned whether a rule that allowed certain information to be kept from three Tiananmen vigil activists throughout their national security trial made a fair hearing an “impossible task.”
Chow Hang-tung, former leader of the group that organised Hong Kong’s annual Tiananmen vigils, was escorted to Court of Final Appeal on June 8, 2023. File photo: Lea Mok/HKFP.
Chow, Tang, and Tsui – who were members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China before it disbanded in September 2021 – were sentenced to four and a half months in jail in 2023 for failing to comply with the police request.
During the trial and appeals at lower courts, heavily redacted information was presented as evidence that the Alliance had acted as a “foreign agent.” The trio rejected the categorisation and argued that the withholding of such information had denied them a fair trial.
Ivan Cheung, assistant director of public prosecutions, told the top court on Wednesday that the redactions were not unfair as the commissioner of the police had “reasonable grounds” to believe the Alliance was a foreign agent.
“To support a reasonable belief… the source needs not to be very detailed, the source needs not be named,” Ivan Cheung said. “Sometimes, limited source [of information] can also be sufficient.”
He also defended a lower court’s decision to allow a police witness to refuse to answer certain questions from the defence, saying it was “entirely proper” and citing a UK appeals case from 1994 that allowed for similar practice.
The judges, however, asked the prosecutor to explain how the defence could have challenged the commissioner’s belief on such limited information.
Hong Kong’s Court of Final Appeal, in Central, on August 12, 2024. Photo: Kyle Lam/HKFP.
Judge Roberto Ribeiro asked Ivan Cheung to explain the evidential value of the redacted documents, saying the court also found it hard to judge the basis of the commissioner’s belief based on the information available.
Judge Johnson Lam asked if the prosecutor was suggesting that the defence could challenge the commissioner’s categorisation based on inference.
Chief Justice Cheung added: “How could the court decide whether those missing paragraphs… provide [the commissioner] with reasonable grounds to believe [the Alliance] is a foreign agent? It’s an impossible task.”
Responding to the prosecution’s argument, Robert Pang, the lawyer representing Tang and Tsui, said it was “extraordinary” that the police witness had been allowed to answer questions at his discretion.
Chow, who is a barrister and represented herself, said the claim that the Alliance was a foreign agent “had been difficult to prove… because it’s not true.”
“It involves at the minimum telling us whose agent we are… they just cannot answer that,” she said. “The prosecution’s case [and] this conviction must be doomed to fail.”
According to the implementation rules of the Beijing-imposed security law, the commissioner of police can request a foreign agent to provide information if they “reasonably believe” such a move “is necessary… for the prevention and investigation of an offence endangering national security.”
Tsui Hon-kwong (left) and Tang Ngok-kwan (right) outside Hong Kong’s Court of Final Appeal. Photo: Hans Tse/HKFP.
Chow maintained that the Alliance had been wrongfully accused of being a foreign agent and therefore the information request had not been justified.
“A deer cannot become a horse just because someone believes it to be,” she told the judges.
She also criticised the court for endorsing what she called a “police state.”
“A police state is where the police is free to accuse anyone to be a foreign agent and the court is obliged to defer to that judgement even if it is clearly wrong,” Chow said. “A police state is created by the complicity of the court in endorsing such abuses, this kind of complicity must stop now.”
The prosecution argued that it was the “legislative intent” to grant police “full efficacy” in the prevention and investigation of national security offences, and that the legislation allowed the commissioner to request information from an entity suspected of being a foreign agent.
The judges, however, pointed to how the law was worded, noting that it stated that the commissioner may, “by written notice served on a foreign agent… require the agent to provide” information. The law does not provide for the commissioner to issue a request to any entity they merely suspected of being an agent, they said.
Judge Lam also raised concerns that the prosecutor argument may create a “considerable inroad” into a person’s right to refuse to assist a police investigation without criminal liability.
The judges will hand down their ruling at a later date.
