The Hong Kong Court of Final Appeal (CFA) in the case of Hong Kong vs Tang Ngok-kwan and others recently allowed an appeal against a conviction relating to three representatives of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKA), an organization which used to organize June 4 vigils in Victoria Park. 

Judging from the relatively muted response of the media, it seemed that many failed to see the significance of this landmark decision: Hong Kong’s top court confirmed and acted on the basic rule of law principle of fair trial in a national security case.

The facts of the case are relatively simple, but unfortunately marred by difficult technical points which most need not try to understand. The defendants were served with a notice under the implementation rules for the National Security Law (NSL) to disclose certain records and documents on the basis that the HKA was suspected of being a “foreign agent” within the meaning of the NSL.

The CFA ruled that if the prosecution was not actually accusing the HKA of being a foreign agent, as opposed to merely suspecting such, they should have issued the notice under a different schedule under the NSL, and hence the defendants were not guilty in failing to comply with the notice.

This is relatively straightforward. What complicated the case is that the prosecution failed to reveal to the defense the evidence they had as to why they alleged they reasonably believed the HKA was a foreign agent, relying on a principle called public interest immunity, which basically says that revelation of such material would be contrary to the public interest. It is in relation to this part of the case that the question of fair trial arose.

Although the court did not put it as such, it is essentially a contest of public interest against the right of a defendant to a fair trial. The fact that this conflict occurred in the context of national security makes the issue even more emotive. In dealing with this question, the court first referred to Articles 87 and 39 of the Basic Law to emphasize that the right to fair trial was constitutionally entrenched in the Basic Law. The court then referred to Articles 4 and 5 of the NSL, which reconfirmed that the rights of all residents as protected by the Basic Law and the International Covenant on Civil and Political Rights shall be protected by law and that the rule of law shall be adhered to, including that everyone is presumed to be innocent until proven guilty, and that “other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected”. In other words, the rights of a defendant in a national security case are no different from that of a defendant in any other criminal case and his or her rights will be equally protected.

The court went on to examine different relevant provisions of the NSL and concluded, “the fundamental principle mandating a fair trial, reflected in the presumption of innocence and the right to defend oneself, together with other established rules of criminal procedure, are adopted for the handling of offenses endangering national security”. Armed with this principle, the court went on to consider the prosecution’s alleged public interest and found that since the central issue was whether the HKA was a foreign agent, withholding all material on this point relied on by the prosecution not only was unfair to the defendants but such nondisclosure actually prevented the defendants from scrutinizing the case of the prosecution in order to defend the charge and prove their innocence. The defendants were hence deprived of their right to a fair trial and on this and other grounds the prosecution must fail.

Western government officials and media have long portrayed the NSL as draconian and prone to being misused as a tool to suppress dissenting views. Some critics even went so far as essentially accusing Hong Kong courts of dancing to the tune of the central government at the expense of the rule of law, and pressuring foreign judges to retreat from the CFA “so as not to give an appearance of legitimacy” to the Hong Kong Special Administrative Region government. In the face of all these negative allegations, the CFA has now given an emphatic answer: The rule of law prevails in Hong Kong, even in national security cases; and a defendant has a right to fair trial and will receive a fair trial in these and all other cases.

As some say, truth is always the weightiest answer to unfair accusations. The case of Hong Kong vs Tang Ngok-kwan and others is a timely reminder of the importance of the rule of law in Hong Kong.

The author is a former chairman of the Hong Kong Bar Association, a member of the Executive Council, and convener of the Path of Democracy.

The views do not necessarily reflect those of China Daily.