Tong Ying Kit v Secretary for Justice [2021] 2 HKLRD 1036, [2021] HKCFI 1397

Philip Dykes SC appeared for the applicant in the Court of First Instance in Tong Ying Kit v Secretary for Justice [2021] 2 HKLRD 1036, [2021] HKCFI 1397.

X had been committed for trial in the Court of First Instance (the CFI) on two counts of offences under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the NSL), namely “incitement to secession” and “terrorist activities”. After the indictment was preferred, in the exercise of the power conferred on her by art.46(1) of the NSL, the Secretary for Justice (the SJ) issued a certificate directing X’s criminal case be tried without a jury, relying on the following grounds: (i) protection of personal safety of jurors and their family members; and/or (ii) if the trial was to be conducted with a jury, there was a real risk that the due administration of justice might be impaired (the Decision). As a result, the criminal case was listed to be tried by a panel of three CFI judges sitting without a jury. X applied for leave to apply for judicial review against the Decision arguing in particular that he had a constitutional right to trial by jury once the SJ had preferred an indictment.

Held, refusing to grant leave to apply for judicial review, that:

Whether right to trial by jury

(1) There was no general right to a jury trial in the criminal justice system in Hong Kong. An accused may have a fair trial without a jury (Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208, Twomey v United Kingdom (Admissibility) (67318/09) (2013) 57 EHRR SE15, Re Hutchings’ Application for Judicial Review [2020] NI 801 applied). (See paras.7(1), 7(3), 40.)

(2) Whilst before the enactment of the NSL, the only mode of trial in the CFI was before a judge and a jury by virtue of s.41(2) of the Criminal Procedure Ordinance (Cap.221), NSL 46 created a new mode of having a trial before a panel of three judges for dealing with criminal proceedings concerning offences endangering national security. It was for the SJ alone to decide whether the new mode of trial should be adopted in a particular case. The express grounds for the exercise of that power, namely: (i) the protection of State secrets; (ii) involvement of foreign factors; and (iii) the protection of personal safety of jurors and their family members, were non-exhaustive. The new mode could be used if and only if the SJ genuinely believed that the grounds stated in the certificate existed. The direction of the SJ was mandatory. (See paras.13, 22 – 23, 26.)

(3) Having considered the pre-existing legal context and the relevant articles of the NSL, it was not accepted that a right to jury trial, let alone constitutional right, as contended by X, existed. Even if the Court was wrong in this regard, such a right would have been abrogated by the combined operation of arts.46(1) and 62 of the NSL (which gave priority to the NSL over inconsistent local laws) as a matter of necessary implication, and taking away such a right was not incompatible with the requirement to preserve the continuity of the jury system under art.86 of the Basic Law (the BL) (Secretary for Justice v Lau Kwok Fai (2005) 8 HKCFAR 304, Catholic Diocese of Hong Kong v Secretary for Justice (2011) 14 HKCFAR 754 applied). (See paras.8, 26 – 28, 40.)

Whether Decision within art.63 of BL/amenability to judicial review

(4) The Decision was a prosecutorial decision which was covered and protected by art.63 of the BL (Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208, Re Hutchings’ Application for Judicial Review [2020] NI 801 applied). (See paras.30 – 33.)

(5) Prosecutorial independence of the SJ should not be put on the same footing as an ordinary exercise of discretion by an administrator, and thus her prosecutorial decision could not be reviewed by the court based on ordinary judicial review grounds, unless she was regarded as having acted outside the constitutional limits when making a prosecutorial decision (Re Leung Lai Fun [2018] 1 HKLRD 523, Kwok Cheuk Kin v 梁卓然 [2019] HKCFI 2215 applied). (See paras.34 – 35.)

Grounds of challenge

(6) As regards the ground of procedural impropriety, there was no requirement for the SJ to hear from or inform X before the Decision was made. There was no such express requirement under the NSL. Further, the express grounds in art.46(1) of the NSL were matters on which the SJ would reasonably be expected not to engage in discussion with the accused before trial (David Lam Shu Tsang v Attorney General (CACV 42 and 43/1977, [1977] HKEC 140), Re Shuker’s Application for Judicial Review [2004] NI 367, Re Arthurs’ Application for Judicial Review [2010] NIQB 75, Re Hutchings’ Application for Judicial Review [2020] NI 801 applied). (See paras.22(v), 26(c), 31, 41.)

(7) In respect of X’s ground of illegality, absent any allegations of “bad faith” or “dishonesty”, there was no basis for the Court to interfere with the Decision. The mere absence of any or any detailed reasons given in the certificate was plainly insufficient to meet the very high evidential threshold for reviewing a prosecutorial decision (Re Hutchings’ Application for Judicial Review [2020] NI 801 applied). (See paras.43 – 44.)

(8) As regards X’s ground of “Wednesbury unreasonableness”, there was nothing inherently unreasonable in directing a trialby a panel of three judges sitting without a jury, when there was a perceived risk of the personal safety of jurors and their family members or that due administration of justice may be impaired (Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208 applied). (See para.45.)

[The above is excerpted from the headnote to the report in HKLRD.]