Written by 
A Hong Kong court has barred activist Chow Hang-tung from calling on overseas witnesses to testify virtually in her national security trial.
A three-judge panel at the High Court handed down the decision on Monday, around 15 minutes after hearing Chow’s arguments that a new rule barring overseas witnesses from giving evidence in national security trials appeared to target her.
The rule was enacted under Article 23, the city’s homegrown national security law which came into effect in March. In Hong Kong, the prosecution or defence can typically apply for a witness to give evidence via live broadcast. But per an amendment to the Criminal Procedure Ordinance, the court cannot allow this if the trial concerns national security.
Chow, who was the vice-chair of the group that used to organise the city’s annual Tiananmen crackdown vigils, stands accused of inciting subversion of state power under the Beijing-imposed national security law between July 1, 2020 and September 8, 2021.
She was charged in September 2021 alongside Lee Cheuk-yan and Albert Ho, as well as the group itself. Neither Lee nor Ho participated in Chow’s application for overseas witnesses to be allowed to testify, judge Alex Lee confirmed.
All three activists have been detained in the lead up to the trial, which is expected to begin next May and take 75 days.
Chow told the court she intended to summon five people to testify: American political science professor Larry Diamond; the artist behind a well-known Tiananmen crackdown statue Jens Galshiot; and Chinese activists Fang Zheng, Zhou Fengsuo, Wu’erkaixi. Except for Diamond, all had been denied entry to Hong Kong before, she said.
‘Differential treatment’
A barrister by training, Chow represented herself on Monday as she argued that denying defendants in national security cases the right to summon overseas witnesses to testify virtually amounted to a difference in treatment compared to defendants being tried in non-national security cases.
Chow said that according to consultation papers published before the passing of Article 23, authorities’ basis for the new rule was that allowing overseas witnesses to give evidence in national security cases could result in harassment of the witnesses or an “intervention” of their evidence.
But such harassment or intervention could occur in non-national security cases too, Chow said, adding that there was no evidence that the chance of harassment would be higher when the witness was testifying in a national security trial.
Chow gave the example that a witness testifying in a trial of a multinational criminal ring could be more susceptible to harassment than a witness giving evidence in a case involving the writing of political slogans on a bus seat. There was therefore “no legitimate aim” in the differing treatments between defendants in national security and non-national security cases, she said.
The activist also said she suspected that the authorities had enacted the new rule specifically to prevent her from being able to call overseas witnesses in her trial.
Chow said she first raised the matter of wanting to call on overseas witnesses to testify in mid-January, around two weeks before public consultation documents outlining the draft of the proposed law were published.
A reference to a proposed amendment regarding testifying in trials virtually was only made in early March, when the the draft of the new national security law was tabled to the Legislative Council, she said.
The “reasonable inference” is that before knowing of Chow’s intention, the authorities had no plan to make that amendment, and upon learning of it did not have time to include it in the consultation papers, Chow said.
In response, government prosecutor Ivan Cheung said the amendment was not targeted at her personally. Regarding Chow’s point that defendants in national security cases were being treated differently, Cheung said such a comparison did not stand.
Chow was comparing national security cases and non-national security cases, and such a comparison could not stand because they were not similar, Cheung said. He added that under the law, no defendant in a national security case was allowed to call overseas witnesses to testify virtually.
Inciting subversion
Chow, Lee and Ho were members of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China, which is also a defendant in the case. The group for decades organised mass vigils to commemorate the 1989 Tiananmen crackdown, until police banned it on Covid-19 grounds in 2020.
The activists were charged over three years ago. During a hearing in August, judge Alex Lee said the starting date of the trial – May 6 next year – was the earliest it could be given the other cases that the three judges are presiding over. The trial will be ruled on by a panel of national security judges instead of a jury, like other national security trials that have taken place.
In June, Chow applied to have one of the judges presiding over the trial – Anna Lai – removed from the case. She argued that Lai had been involved in an earlier case involving the Alliance, in which the group was charged with refusing to comply with a data request from national security police.
Lai had viewed materials such as a police investigation report and search warrants, Chow argued, which could result in prejudice against the defendants.
But the judges ruled against Chow in July, saying that the three-judge panel was confident that the defendants would receive a fair trial.
Chow and two former members of the Alliance Tang Ngok-kwan and Tsui Hon-kwong were jailed for four and a half months over their refusal to comply with the demand for data. They are challenging the verdict, with the Court of Final Appeal expected to hear the case in January.
Support HKFP | Policies & Ethics | Error/typo? | Contact Us | Newsletter | Transparency & Annual Report | Apps
Help safeguard press freedom & keep HKFP free for all readers by supporting our team
Source link