Judicial review application to revoke decision not to set up a jury trial filed by first defendant charged under National Security Law

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8th April 2021 – (Hong Kong) 23-year-old Tong Ying Kit was involved in the first case under the National Security Law. During the afternoon of 1st July 2020, Tong was seen riding his motorcycle in the Wan Chai area at speed. He was carrying a backpack, from which a flag containing certain anti-government slogans was hoisted upwards and displayed to the public as he was driving. The police officers formed a number of checklines with a view to stopping him and, at the third checkline, he ignored their warning and rammed his motorcycle into the group of police officers, seriously injuring three of them. Tong was subsequently charged with offences contrary to Articles 20 & 21 and 24 under the National Security Law. On 6th July 2020, Tong’s application for bail was refused by Chief Magistrate So for reasons including “Article 42 of the [National] Security Law”.

The case has been scheduled for trial in the High Court on 23rd June. Tong yesterday (7th) filed a judicial review filed with the High Court, asking the court to revoke the decision not to set up a jury trial, and request the court to start the trial as soon as possible to decide whether to allow a judicial review.

The applicant was Tong, and the respondent was Teresa Cheng, the Secretary for Justice. In February 2021, Cheng cited Article 46 of the National Security Law to protect the safety of the jury and their family members and issued a statement instructing that the case should not be tried by a jury and be tried by three judges. Tong’s filing stated that this time he is not going to challenge Article 46, that is, the Attorney General may instruct the trial not to have a jury in special circumstances, but to explore whether Cheng’s decision would harm Tong’s personal rights.

Tong believes that the jury system has its value, including the defendant’s right to choose jurors, and it can ensure that criminal law conforms to ordinary people’s understanding of fairness and justice. However, after Cheng expressed her concern about the establishment of a jury panel and she did not give Tong a chance to respond, which violated procedural justice. The petition also stated that Cheng misinterpreted Article 46 and that she failed to provide a reasonable basis to prove that the jury had a chance to be intimidated. Her decision was illegal and unreasonable and the court should revoke it.

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