The Hong Kong 47 Committed No Crime...So Why Are So Many of Them Pleading Guilty?
The Hong Kong 47 Committed No Crime...So Why Are So Many of Them Pleading Guilty?
Endless pre-trial detention and unwinnable trials appear to have convinced many defendants to abandon their court battle
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On a cool morning in January 2021, Hong Kong’s national security police swept through the city, barged into the homes of virtually every member of the city’s democratic opposition—53 people in all—and hauled them all to jail. Not long after, the Department of Justice charged 47 of these politicians with subversion. The government alleged that they had subverted state power by attempting to “seize the ruling power of Hong Kong,” in the words of Beijing’s Liaison Office in the city.
What did this alleged coup consist of? Not much, it turned out. The 47 were accused of participating in a party-organized primary election and vowing, if elected to the Legislative Council, to veto the government’s budget—a right explicitly granted to the LegCo by Article 52 of the Basic Law (Hong Kong’s constitution).
Even by the standards of Beijing, which has long treated the Basic Law and the rights of Hongkongers with contempt, the charges against the 47 were absurd. How can exercising a right explicitly allowed by the city’s governing documents constitute an unlawful attempt to subvert the government? The arrests were a particularly brazen—and legally sloppy—move by Beijing to eliminate the remaining political opposition.
Since that shocking day more than a year and a half ago, specially-selected judges handpicked by Beijing have denied bail to 34 of the 47 defendants, 32 of whom have been detained since early last year and two more who, after obtaining bail, were later re-arrested for speaking out on political issues. The other 13 defendants remain on bail, with heavy restrictions placed on their speech and movement.
The court proceedings have been going on for some time, but until this week, the magistrate (without legal basis) had barred reporters in attendance from publishing the contents of those proceedings. Due to a court ruling last week in an appeal brought by another political prisoner, the indefatigable Chow Hang Tung, the reporting ban has been lifted. Thus, while word of events within the court had spread among journalist and activist networks for some time, the public has just learned the shocking news that 29 of the 47 defendants will plead guilty to subversion. Only 18 will go to trial.
Subsequent to the lifting of the reporting ban, InMedia published a detailed summary of the prosecution’s allegations against each defendant. While some had wondered if, perhaps, the DOJ would reveal during the proceedings previously-undisclosed evidence that would justify the charges, the InMedia article put any such suspicions to rest: The allegations are baseless. There is no evidence of an attempt to act beyond well-established basic law rights. There is no claim of a foreign-backed conspiracy, and no hidden plot.
Yet, despite the absurdity of the charges, nearly two thirds of the defendants are pleading guilty to a crime they plainly didn’t commit. Why?
I have not spoken to any of the 47 about it (they were segregated from the general population when I was in prison). But the evidence suggests there are a number of reasons, two of which I’ll discuss here. One of these is widely accepted and discussed among court watchers: That these defendants have realized the process is rigged and they will never be acquitted. The other may be less obvious, except to those who have spent time in Hong Kong’s prisons: attending court from prison is purposely designed to be so mentally taxing that it effectively deters detainees from fighting charges.
The trial will be rigged against the defendants
Beijing announced its National Security Law for Hong Kong only minutes before it took effect on July 1, 2020. Besides being plainly unconstitutional, the law’s scope was breathtaking. It didn’t just create a set of broad political crimes. The drafters in Beijing seemingly realized that if the goal was to eliminate all political dissent—and make no mistake, that was the goal—they would have to ensure the cases resulted in convictions. As such, they also created a new, parallel justice system that eliminated most of the rights and process protections traditionally afforded to defendants in Hong Kong’s common law system:
National security cases are heard by special judges handpicked by the Chief Executive (who is appointed by Beijing), rather than those assigned by the judiciary (NSL Article 44);
The Secretary of Justice—not the court—can simply order the court to deny defendants a jury trial (Article 46);
The presumption of bail—and thus the presumption of innocence—is reversed, as national security defendants must prove a negative: that if granted bail, they will not “continue to commit acts endangering national security” (Article 42);
Handpicked national security judges can order a trial to be closed to the public and the media (Article 41);
Beijing has the right to transfer national security defendants to Mainland China for a CCP-style “trial” if they wish (Article 55).
From the time of their arrest, the Hong Kong 47 knew the system was rigged. But many held out hope that the judiciary would fight to preserve rule of law.
Few still harbor any illusions that the courts will do so. On February 7, 2021, one month after the 47 were arrested, the Court of Final Appeal (Hong Kong’s highest court) ruled that it had no jurisdiction to review the NSL for constitutionality. Since then, while waiting for trial, the 47 have watched as every single national security ruling, both procedural and substantive, has been decided in favor of the government. The Georgetown Center for Asian Law recently reported to the UN Human Rights Committee that since July 2020, Hong Kong courts have issued 113 procedural rulings and four verdicts, with no apparent wins for defendants.
As for the Hong Kong 47, the judge has repeatedly denied applications from the defendants, and both the trial magistrate and high court national security judges have made prejudicial comments about the guilt of the defendants.
Most recently (and predictably), Justice Secretary Paul Lam ordered that the trial be held without a jury. The reasons given—that the “personal safety of jurors” would be at risk, and that there was “involvement of foreign elements”—are nonsense and wholly unsupported by even the prosecution’s allegations. The real reason is that Secretary Lam knows—just as Beijing does—that they cannot actually win a jury trial. So, they will not allow one to be held.
The government is a party to the criminal case. It is hard to overstate how offensive it is to principles of fairness and judicial independence that a party’s lawyers—the DOJ—can decide unilaterally that the case will not be decided by a jury, but rather by a panel of special judges appointed by that very same government party.
In these circumstances, many of the 47 no doubt feel that conviction is inevitable, and pleading guilty is the best chance they have at receiving a sentencing discount that will allow them to one day be released from prison.
Attending court while remanded to prison is exceptionally stressful and exhausting
A second likely reason for the spate of guilty pleas has to do with the actual process of going to trial. For defendants remanded to custody, the system is designed to break defendants by making every court appearance extremely burdensome. I’ve created a chart comparing each defendant’s plea to their bail status:
As the chart shows, there is a strong correlation between whether a defendant is currently detained and whether they are pleading guilty. 13 of the 47 defendants are currently out on bail, while the other 34 are remanded to pre-trial detention. While overall 62 percent of defendants (29 of 47) have decided to plead guilty, only 15 percent (2 of 13) of those currently on bail will do so. In other words, those who are currently in prison are much more likely to be pleading guilty, while those who are on bail almost uniformly have decided to fight the charges.
As I know from my own experience, the ordeal of attending court from prison is deliberately designed to be as burdensome as possible.
During my first stint in prison last summer, I attended court twice. The first time was two weeks after my conviction, when I was to return to court to receive my sentence. The second was a month later when I applied to the High Court for bail pending appeal.
Surviving in prison requires adapting to a daily routine where you take care of yourself, do your work, and try not to get noticed by officials. Anything that breaks that routine is a hassle and causes stress. And nothing causes more stress than attending court.
When you have a court hearing, the guards wake you up well before dawn. You’re given just a couple of minutes to get ready, while a guard shouts at you to hurry. You’re taken to the prison’s administration building, where you’re put in a room crammed in with the dozens of other people who have outside appointments that day (typically court hearings or medical appointments). At Lai Chi Kok Prison, even if the room isn’t full, prisoners must still sit crammed knee-to-knee on the smallest possible number of benches.
You wait in that position, staring ahead. No talking allowed. After an hour or so, processing begins. Each name is called one-by-one. You stand as an officer inputs information into the computer. Then you’re given breakfast, which you must eat in a small, narrow room with one bench. If there are more than three people (and there are always more than three people) you must stand or sit on the floor and hold your plate while you eat with one hand.
You’re given about five minutes to eat, while guards shout at you to hurry. Then, you’re taken to a cell for “processed” prisoners. It’s roughly 6 meters square and has about 8 benches. If you are one of the first prisoners processed, you might have a few minutes to stretch out in the space. But soon the room will be packed full. If you’re lucky, you have a bench to sit crammed in with others. If not, you stand. No talking, no walking around.
After about another hour, prisoners are lined up, and each one is handcuffed together with another prisoner going to the same place as you. You’re then marched out to the bus.
Upon reaching court, you’re escorted into cells below the court, where the handcuffs are removed and you’re locked inside. You then wait until your hearing time, which might be anywhere from a couple of hours to six hours (for afternoon hearings).
When you’re brought into the courtroom, you’re placed in a box where you can see your loved ones in the audience, but cannot speak to them. You wait. The judge arrives, and the hearing takes place. You remain silent and stare ahead.
After court, you go through the entire process again in reverse. You’re taken to the holding cells under the court, where you wait again, often for many more hours. You are handcuffed to another prisoner and get on the bus, which then makes several stops to pick up other prisoners and guards, and several stops to drop them off. When you finally reach your prison, you wait in the administration room for processing. Once processed, you’re placed in the smaller waiting cell.
By the time you get back to your own cell to sleep, it may be 10:00 in the evening or later. Your dinner will be waiting for you there, cold and often infested with bugs. You throw it away and go to bed hungry.
I went through this rigorous ordeal two weeks after entering prison. It was such a difficult day that, when it came time to apply for bail, I thought seriously about not applying just to avoid having to go through another day of court. Ultimately, I applied for bail, and it was granted, but I came very close to just not attempting it.
I almost gave up my bail application to avoid having to attend court for one day. The Hong Kong 47 trial is expected to last for at least six months, and perhaps over a year. Any defendant currently detained in jail who pleads not guilty will have to go through this process on every court day for that entire period.
In their own case, the 47 have already attended court multiple times. In particularly egregious incidents, they have attended court in marathon sessions lasting 14 hours or more, in which they were denied meals and several defendants fainted. One session went on until 3:00 a.m., after which prisoners were allowed to sleep for a couple of hours before returning to court.
Even the strongest people, faced with going through such a process for months, would begin to weigh whether it’s worth it.
***
It’s easy for people to say that if they were in the situation that the Hong Kong 47 find themselves in, they would fight. But I know from my own experience that it’s not that simple. Beijing has designed a system for Hong Kong in which pre-trial detentions are deliberately unjust, and cases are deliberately unwinnable. I have immense admiration for those who have nonetheless decided to fight, but I harbor just as much solidarity and sympathy for those who have decided to plead guilty, end the ordeal, and move on.
The Hong Kong 47 are heroes, and those of us abroad will continue to use their cases to raise awareness about Hong Kong’s dire situation. But they are also human beings. However they decided to plead, the best thing we can do is encourage them to make whatever choice they think is right, and assure them that we’ll be waiting for them in solidarity whenever they get out.
Thanks a lot again for your effort!
Well said Sam especially carrying a lot of weight from your own prison experience!