The Court of Final Appeal Must End Indefinite Pre-Trial Detentions

If multiyear pre-trial detentions are now the norm, how can the Court claim that defendants are still innocent until proven guilty?

A cell in Lai Chi Kok Reception Centre where I was imprisoned for three weeks

“You’re Samuel! We know you from the news. Is there anything you need?”

Those were the first words spoken to me by Jason¹, a political prisoner in his early 20’s at Lai Chi Kok Reception Centre, a rather deceptively-named prison in Hong Kong. I spent my first three weeks there after I was convicted in June 2021 and sentenced to 4½ months in prison for a crime I didn’t commit.

For my first two days, the guards isolated me in the medical ward without so much as a book to pass the time, much less anyone to talk to. Cut off from everyone and everything I cared about and still in shock from my unexpected conviction, those first two days were among the worst of my life.

On Day 3, worn down and despondent, I was finally brought to the “visit waiting room,” a large holding cell where prisoners wait for the chance to have a 15-minute visit with friends or family. Jason spotted me on the other side of the room and walked right over, bringing me back to where he was sitting.  There, he and a group of his friends introduced themselves.

Jason said he could tell I wasn’t doing well, and he knew why. “It’s really hard in here at first,” he told me. His friends agreed. They’d all been through it.

Lai Chi Kok’s official function is serve as a temporary holding location for remand prisoners, convicts whose cases are on appeal, and others whose cases aren’t yet fully resolved. Recently, however, it has become the long-term home of many political arrestees who have been denied bail and remanded to custody until trial.²

Jason and his friends were mostly in their early 20’s, college students whose lives had been interrupted. These kids—it is difficult for me to see them as anything but kids—were mostly imprisoned on national security charges and facing the prospect of decades in prison.

Part of my prison journal entry on the day I met Jason and his friends.

On that first day after my isolation ended, I had never been so grateful for a stranger’s kindness. As I was called to leave the room, Jason made a request. “Let’s exchange numbers,” he said.

He wasn’t asking for my phone number. Prisoner identification numbers are critical pieces of information for contacting each other. Remand prisoners receive a seven-digit number, with the final two digits ending in the year they entered prison.

When Jason gave me his number, it ended in “20.”

“You’ve been on remand here for a year?” I asked.

“Yes.”

“When will you have a trial?”

“I don’t know,” he explained. “I go to court sometimes, and the prosecution just asks for more time to prepare their allegations.”

“You mean more time to prepare for trial?”

“No, to prepare their allegations.”

A year in prison, and this young man hadn’t even been told the details of the crime he supposedly committed. As I soon learned, neither had many of the others I met in the waiting room that day.

Despite the horrifying situation they found themselves in, all they wanted to do that day, and every time I saw them after that, was find out how I was doing and what they could do help me. They offered me books. They connected me with pen pals outside the prison walls. They kept fighting for every moment of joy available to them despite the darkness hanging over their lives, and made sure I could share in that joy if I wanted to.

Jason and his friends were determined not to lose their own humanity. In that room, they had created a community for themselves, a support network, and they were going to hold onto it with every bit of strength they had.

But now that I am on the outside while they still languish behind those walls, seemingly no closer to trial, rarely a day that goes by that I don’t see their faces in my mind, and mourn over the cruel system of indefinite pre-trial detention that is stealing their best years out from under them.

Punishment without conviction isn’t a bug—it’s a feature

Before June 2020, Hong Kong law gave defendants a presumption that they would be granted bail. Courts could only deny bail if there were “substantial grounds for believing” that the accused would abscond, commit another offence, or pervert justice while on bail. The Criminal Procedure Ordinance Sections 9D and 9G codified the right.

The reason for this presumption, which exists in all common law systems, is obvious: Under Article 87 of the Basic Law, defendants are presumed innocent until proven guilty, and we don’t punish innocent people by imprisoning them before they’ve had their day in court.

But the National Security Law changed the rules. Under Article 42 of the NSL, instead of a presumption of bail, there is now a presumption that bail will not be granted for national security defendants “unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

The language poses a problem. If all defendants are innocent until proven guilty, then how can they be presumptively punished before trial?

The reason is that they’re no longer actually assumed to be innocent. Even though Article 5 of the NSL purports to uphold the presumption of innocence, the bail requirements of Article 42 make clear that unconvicted defendants are presumed guilty: to grant bail, a judge must be convinced that the Defendant “will not continue to commit acts endangering national security.” How can someone “not continue” to do something that they are not considered to have done in the first place? In order to even have a chance at bail, a NSL defendant’s counsel must begin their argument by presuming their client’s guilt.

When one accepts that the NSL turns the innocence presumption on its head and that its claims to uphold the Basic Law and other rights are little more than lip service, it becomes easier to understand why so many people like Jason have been condemned to languish in indefinite pre-trial detention.

“The court should set and enforce strict timetables…”

At first, there was hope that the NSL’s new rules stripping away bail and other rights would be restricted to the four offences under the NSL—secession, subversion, terrorism, and collusion with foreign forces. But last month, the Court of Final Appeal ruled in HKSAR v. Ng Hau Yi Sidney that defendants accused of any other “crimes endangering national security” must also be denied these rights. These laws include sedition and treason laws in place from the British colonial period, and could extend to other political and speech crimes like unlawful assembly if the Government deems them to affect national security.³

The noose grows ever-tighter.

The Court of Final Appeal

Yet, there was a glimmer of reason and empathy at the end of the Court’s ruling. In the very last paragraph, almost as an afterthought, the Court wrote:

With the full cooperation of the parties, magistrates and judges should proactively seek ways to bring NSL-related matters to trial expeditiously, consistently of course with the interests of justice.  There should be proactive case management and a monitoring of progress by the court rather than leaving all initiatives to the parties while the person remanded remains in pre-trial custody for lengthy periods.  The court should set and enforce strict timetables and should critically consider whether any prescribed procedural steps, properly construed, can be eliminated, re-sequenced, modified, split up or made to run concurrently to avoid delay and wasted effort, consistent always with a fair trial.

Now, while I am glad the CFA at least has noticed the epidemic of indefinite detentions, it’s unusual to see so much use of the word “should” by the highest court in the land. Isn’t the CFA’s core duty to instruct lower courts in what they must do under the law, not what they should do? Why the restraint?

In fact, where a defendant’s rights have been infringed so as to prejudice their rights, the Court has an obligation to declare an abuse of process and strike out the charges, or at least penalize the prosecution.

Such a remedy is well-established in Hong Kong and is set out in O18R19 of the High Court rules. In a 2011 case, Liquidator of Wing Fai Construction Co Ltd v. Yip Kwong Robert & Ors, the same CFA that issued the Ng Hau Yi Sidney bail ruling, while noting that there was a high bar for striking out cases due to abusive trial delays, affirmed that delays that abuse process can indeed be grounds for striking out a charge if the abuse causes unfair prejudice to the defendant:

Abuse can take many forms….[W]here a delay which is inordinate and inexcusable causes a substantial risk that a fair trial is not possible, this is perhaps the most compelling form of prejudice to a defendant. There may be other forms of prejudice, such as the prejudice caused by proceedings hanging over the head of a defendant, causing undue anxiety. Another form of prejudice might be that caused by the existence of an interim injunction…pending trial; in such cases, undue delay might aggravate that prejudice.

If a defendant’s “undue anxiety” or a mere injunction that restrains a defendant from taking a certain action are sufficient prejudice to warrant a dismissal, then surely the act of physically locking up unconvicted defendants in a prison for years while the prosecution refuses to prepare even the most basic allegations and evidence for trial is sufficient abuse, and sufficient prejudice, to warrant striking out.

Yet, last month in Ng Hau Yi Sidney, after an opinion in which the CFA ordered lower courts to lock up defendants without trial, the best the CFA could muster on the alarming length of these pre-trial detentions was a timid paragraph that amounted to “We think lower courts ought to move faster.”

The Government’s real goal is to render the courts irrelevant

Even now, more than six months after I met them, none of the remand NSL prisoners I met in Lai Chi Kok have gone to trial, and the prospect that they will go to trial in 2022 is slim. At court hearing after court hearing, the DOJ simply announces that they are not yet ready for trial, and a new date is set for another “mention hearing.” Rinse and repeat ad infinitum.

At the same time, the DOJ has fought against bail for every single one of the men and women accused under the NSL, appealing repeatedly if necessary until they get the result they want. And in most cases, Beijing-appointed special “national security judges” have gamely discarded all precedent and agreed to the lock-up.

These prisoners are not terrorists or violent criminals. They are students like Jason, politicians, journalists, and other ordinary members of society. Most have been charged based on little more than their use of protest slogans, running for office on a platform of supporting democracy, or joining groups that supported more autonomy for Hong Kong. There is simply no chance whatsoever that most of these individuals would pose a danger to the public while on bail.

The Government surely knows these defendants pose no danger. So why fight their bail?  There are two reasons.

First, denying bail is part of a wide-ranging effort to marginalize the courts and shift the power to set the law’s boundaries to the Police. Traditionally, courts decide whether to convict, and thus whether to punish. But now, the punishment for these defendants can begin before they ever set foot in a courtroom, much less face a trial. Whether the court ultimately convicts them, or whether a trial ever takes place at all, becomes irrelevant when they have already been punished for years beforehand.

By taking this approach—long perfected by the mainland—the Government ensures it is Beijing, via its proxies in the Police, who ultimately decide what is a crime and who is a criminal.

Second, it is increasingly clear that the long pre-trial detentions will in most cases allow the Government to avoid trials entirely. The government, in its mistrust of Hong Kong’s courts and the free press that cover those courts, would rather avoid ever having to try these political defendants. So instead, taking another cue from the Mainland’s longstanding approach, they intend to simply imprison these innocent people for as long as it takes to break them down so that they plead guilty.

The strategy is working. In a sign of things to come, many of the political leaders arrested in January 2021 and charged with subversion simply for running for election and seeking to defeat the establishment have, according to sources, decided to plead guilty after a year in pretrial detention. More NSL defendants are reported to be considering a plea as well.

The CFA must strike out charges where abusive delays lead to long pre-trial detentions

The CFA has made it clear that it is unwilling to toss out the National Security Law, despite its irreconcilable conflicts with the Basic Law and Hong Kong’s international treaty commitments. But its expressions of concern in the Ng Hau Yi Sidney ruling, while remarkably weak considering the authority held by Hong Kong’s highest court, suggest the Court is at least disturbed by the mass indefinite detentions. Perhaps the judges even want to do their duty and begin striking out charges where these abuses have taken place—if only they had a bit more courage.

Perhaps justices of the CFA, as well as lower court judges, have allowed themselves to become too disconnected from the realities of the prisoners they so regularly condemn. In one recent case, for example, a magistrate indicated that she thought an activist representing herself while locked up in pre-trial detention could simply “access the internet” from her prison cell to prepare for her case, suggesting she has given little thought in her career to what happens to defendants after they leave her courtroom.

So I’d like to make a modest proposal to the justices of the CFA: Go to Lai Chi Kok. Take a tour. Meet the prisoners locked up there without trial. Talk to them about their lives, and their experience. And imagine how it would feel if it was your own child whose constitutional rights were being so casually disregarded.

Perhaps if the justices are forced to put a face to the indefinite detentions taking place on their watch, they will begin to think a bit harder about the lives being destroyed by their unwillingness to stand up for the rights of defendants. Maybe then they’ll begin to muster up a bit more courage to uphold the law.

Of course, we know this is unlikely to ever happen. While the CFA has not shown itself to be as dismissive of law and factual realities as many lower courts, its courage to stand up for legal rights is in short supply—and actively avoiding thinking too much about the people who are harmed as a result probably makes it a bit easier to sleep at night.

***

As for Jason, he was back in court recently. At the hearing, Jason’s counsel reported to the judge that after 18 months in prison, his client has decided to plead guilty at his next hearing.

Eventually, even the brightest fires burn out.

1. Name and other details changed to protect my friend’s anonymity.

2. So many remand prisoners have been detained in Lai Chi Kok that it has run out of space, and remand prisoners are now being sent to other prisons as well. At my second prison, Stanley Prison, a number of remand prisoners including Apple Daily founder Jimmy Lai were held there and kept separate from convicted prisoners.

3. The government has announced that it will, via the rubber-stamp Legislative Council, soon put forward yet another round of national security offences. Thanks to the CFA’s ruling, defendants charged under these new offenses will also be denied the traditional presumption of bail.