Hong Kong's criminal justice system plays a pivotal role in maintaining the social order by ensuring that crimes are effectively detected and investigated, and criminal cases are handled impartially and efficiently while protecting the rights of all parties involved in the process.

Offenses endanger national security

Baseless allegations of "vague charges" of offenses under the National Security Law or other offenses endangering national security under local laws have been made. As pointed out on various occasions, the National Security Law clearly specifies the elements of every offense, including the requisite acts (actus reus) and intent (mens rea).

Under the common law system, the courts may further clarify the elements of an offense in adjudicating cases. For instance, in the Tong Ying-kit case (the first criminal case under the National Security Law), the Court of First Instance has explained the elements of the offenses of incitement to secession and terrorist activities.

Besides, in our criminal justice system, there are avenues for defendants to request further and better particulars of a charge and to complain about defects of a charge. All procedural challenges will be duly considered and adjudicated fairly by the court.

Reporting restrictions in respect of pre-trial proceedings such as bail proceedings and committal proceedings are in place under existing laws (such as the Criminal Procedure Ordinance and the Magistrates Ordinance) to safeguard the fairness and integrity of the eventual trial.

Notwithstanding the reporting restrictions, the relevant proceedings are conducted in open court which members of the public and the media may attend and observe. Defendants may apply to the court for lifting of the reporting restrictions, which will be considered and adjudicated by the court, striking a balance between the defendants' rights and other aspects of the public interest including that of a fair trial.

Bail applications handled fairly

The Court of Final Appeal in the Lai Chee Ying case explains why there are more stringent conditions to the grant of bail in relation to offences endangering national security. The court also took the view that decisions as to whether or not to grant bail are a "juridical exercise carried out by the court as an exercise in judgment or evaluation, not the application of a burden of proof".

There are other common law jurisdictions (such as Canada, South Africa and Australia) where, in respect of certain classes of offences, not only is there no burden of proof on the prosecution to establish grounds for refusing bail, but a burden is placed on the accused to establish why continued detention, rather than release on bail, is not justified.

Contrary to the misinformation that defendants charged with offences endangering national security are all denied bail, it is a matter of fact that a number of defendants, including former legislators, have been released on bail after the courts duly considered the requirements stipulated in the NSL and relevant local laws.

Law enforcement powers legitimate

In discharging duties, law enforcement officials are authorized to exercise certain powers in order to facilitate their investigations. For example, they may apply to the court to obtain production orders or restraint orders under the Organized and Serious Crimes Ordinance for the purpose of investigating an organized crime or preventing dissipation of property by criminal suspects.

Such orders may be made on an ex parte application to a judge in chambers. The ex parte procedure for authorization of investigatory powers is necessary, so as to prevent suspects from destroying evidence, dissipating proceeds of crime or committing other acts to obstruct investigation or pervert the course of justice, and is a common practice in many jurisdictions. There are provisions in the Implementation Rules for Article 43 of the National Security Law to enable the law enforcement authorities to take similar measures when handling cases concerning offenses endangering national security.

Nonetheless, Hong Kong's criminal justice system allows a party that is affected by the court order to apply to have it set aside or varied. The court, having reviewed all evidence, will adjudicate strictly in accordance with the applicable law in an impartial manner.

Trials held in timely manner

Hong Kong's Department of Justice maintains close contact with the law enforcement authorities to ensure that cases are handled expeditiously and effectively. We will proactively explore and follow up on ways to expedite case management, such as seeking consolidation of cases where facts and evidence permit, agreeing on facts and evidence with the defense before trial as far as possible to reduce the number of witnesses to be called and hence the length of trial.

However, the time taken between the institution of prosecution and the trial of each case depends on a multitude of factors, including whether further investigation is required, whether the defendant needs time to obtain legal advice for consideration of his/her plea and to engage in plea negotiation with the prosecution, whether the defense requires certification of translated documents or makes any pre-trial application such as applications for further and better particulars, disclosure, lifting of reporting restrictions, severance of case with multiple defendants, preliminary inquiry and discharge.

It must be stressed here that all applications are handled in accordance with established procedures and due process fully observed. If a defendant, upon legal advice or otherwise, decides to make every possible procedural application irrespective of merits, he/she cannot at the same time conjure any complaint about "delay" which is only the natural consequence of exercising his/her entitlements to the fullest possible extent in a fair criminal justice system.

Duty of counsel very important

Our legal fraternity (including overseas individuals admitted to full practice in Hong Kong) shoulders the primary responsibility for upholding the rule of law, by performing their duty professionally whilst observing the rules of professional conduct.

In carrying out their duty, the personal safety of legal practitioners, like all other individuals, is well protected by law. This fundamental safeguard ensures that they act professionally without fear or favor. A party to a litigation or their legal representatives, in the event of being intimidated, should report to the police with all the available evidence. Needless to say, one must refrain from knowingly deceiving or misleading the court or the police or indeed the public by making false accusations, as such conduct not only harms the reputation of the legal profession the individual belongs to, but may risk breaching the law.

Hong Kong is renowned for having a fair and mature criminal justice system. The principle of prosecutorial independence by the DoJ is constitutionally guaranteed. Not only our prosecutors act independently, I trust all members of the legal fraternity would discharge their duties professionally and honestly without fear or favour, and to uphold the fair and independent criminal justice system.

The author is the secretary for justice of the Hong Kong Special Administrative Region.

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