Criminal injustice — Hong Kong adopting Communist China’s legal tyranny

Patrick Poon

Board Member, Asian Lawyers Network (ALN)

The heavy sentence of 20 years’ imprisonment laid against the 78-year-old Jimmy Lai, a media tycoon and founder of the now-defunct popular Chinese Hong Kong news outlet Apple Daily, might surprise many people, but the level of suppression on freedom of expression in Hong Kong has been more severe than most people could believe. After the outrageous and tragic political trial against Lai, all eyes are back on the leaders of the defunct Hong Kong Alliance of Democratic Movements of China. The trial will resume in March 2026.

During the trial, Chow Hang Tung, a barrister and a former vice-chairperson of the now disbanded Alliance which used to organized the annual candle-light vigil at Victoria Park in Hong Kong to commemorate the bloody crackdown of the pro-democracy movement in China in June 1989, requested the judges to invite a sociology professor, Ho Ming-sho of the National University of Taiwan who has done extensive research on social movements including the concepts of democracy and authoritarianism, to testify as an expert witness. But the trial judges simply bluntly said that his expertise was not relevant to the case.

Without the chance to thoroughly present their own arguments, Chow and the other defendant Lee Cheuk-yan, a former chairman of the Alliance who also pleaded not guilty to the charge, were not given a genuinely fair trial, let alone not protected from suffering several years of pre-trial detention since 2021 that has already deprived them of their freedom without bail.

It is easy for authoritarian regimes to claim that activists like Chow and Lee, who led public assemblies and demonstrations to call for the government’s accountability over mass crackdowns like the Tiananmen movements in 1989, are “inciting” others to take part in the actions. What defines “incitement” is something never clearly defined by the Chinese government and so the Hong Kong government.

Unfortunately, the courts in Hong Kong, which used to adopt the common law tradition and follow case law practice, now no longer apply the legal principles of the rule of law. In recent cases, like that of detained media tycoon Jimmy Lai’s trial and sentencing of 20 years imprisonment, the trial judges were not able to establish a valid basis for their verdict and sentencing through legal reasoning, but they were just like the judges in mainland China who only follow the Communist Chinese government’s political accusation of “collusion with foreign forces” instead of relying on evidence law and genuine legal arguments.

What is worrying is that such regressive developments in trials and legal reasoning is becoming a norm among the trial judges in Hong Kong, in particular the judges appointed by the Hong Kong government to hear national security cases. The arbitrary definition of offences and the unfair trial proceedings with no protection of the rights of the defendants, in particular no clear standards on rejecting bails, effectively legitimizing unreasonable prolonged pre-trial detention, in effect deprives the accused of freedom for years awaiting trial with no sound legal reason given by the trial judges.

Just like what we saw in the trials of late Nobel Peace Prize laureate Liu Xiaobo and many other political dissidents and human rights defenders in China in recent years, we simply can’t talk about any kind of criminal justice from the procedures of arrest, detention, and trial proceedings. Like how Chow Hang-tung wrote in her written speech entitled “On Rule-based Order” accepting the human rights award of the Council of Bars and Law Societies of Europe: “As lawyers, we were trained on law as it should be—as an impartial guardian of justice and freedom, grounded in truth and equality, enacted in a democratic spirit.” Yet, ironically, in her trial and other trials of national security cases, we simply cannot see any of these principles being observed by the trial judges in Hong Kong nowadays. The current state in Hong Kong and China is what Hang Tung has rightly observed: “For the real world is a much less happy place; most of humanity do not live under conditions of justice or anywhere near it. They must live with laws that oppress, not protect. They are exploited by laws that they have no say in making or shaping. Laws that suffocate them never touch the elites.”