The well-respected common law system ensures that its laws of evidence are based upon deeply “interrogated values”, which have been scrutinized and litigated in the courts over many years. Sometimes other professional bodies may challenge the rationality of some of the basic legal principles entrenched in the common law system. For example, the principle of mens rea (guilty mind) was unexpectedly challenged by the National Association for Mental Health of the United Kingdom in the early 1970s. The association wanted the requirement of mens rea as an essential ingredient of a crime to be replaced by a system of strict accountability for actions committed, alongside a professional investigation into the defendant’s state of mind at the time of sentencing (Anthony Kenny, The Mind and the Deed, in Larry May & Jeff Brown, Philosophy of Law).

The looming threat posed by the association was swept away by a wave of highly persuasive and strong counterarguments put forward by common law scholars and lawyers. Dispelling the skepticism of the association, common law scholars have reaffirmed the principle of mens rea. Prosecutors need to adduce sufficient evidence to prove guilty acts and the guilty mind of the defendant. The stringent evidential rules of the common law system have an outstanding record in administering justice.

This article is our response to the groundless allegation made by the United States that the trial of the landmark national security case against 47 individuals is a “political persecution”, and the European Union’s claim that the ruling is politically motivated. Ted Hui Chi-fung, a Hong Kong fugitive who has called for foreign entities to impose sanctions on Hong Kong judges, prosecutors, law enforcement officers and other public officials, alleged that the acquittal of two defendants, Lawrence Lau Wai-chung and Lee Yue-shun, was a political ploy to protect the reputation of the judiciary of the city. Our think tank would like to state in no uncertain terms that the court has complied with the strict laws of evidence of the common law system.

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According to the prosecutors, the 47 defendants had conspired to win control of the Legislative Council and paralyze the Hong Kong Special Administrative Region government by indiscriminately vetoing the government budget. The three-judge panel snubbed a defense interpretation that any “unlawful means” adopted to commit a subversive act against Article 22 of the National Security Law for Hong Kong (NSL) must involve violence. Since the dispute over “unlawful means” is, to be sure, an appeal point in the future, we will not comment on this issue.

To strengthen the contention that the panel has complied with the strict evidential rules anchored in the common law system, we would like to draw the attention of the public to the roles played by these procedural safeguards in ensuring that a fair trial was conducted. First, in criminal cases, the burden of proof is on the prosecution; it is the duty of the prosecution to prove the charge against the defendant, which may also involve disproving any defense the defendant raises: Woolmington v DPP (1935) Ac 462. The prosecution must also prove beyond reasonable doubt.

Concerning Lau’s acquittal, the court has difficulty in determining whether there is sufficient evidence upon which the prosecution is entitled to hold that he has subscribed to the conspiracy of vetoing the budget and toppling the government. Though Lau was a signatory of an “Inked without Regret” declaration, the court was unable to determine whether it was signed by Lau himself.

As for Lee, the prosecution has failed to prove that he has knowingly signed the declaration. During the “primary election” forum, Lee did not mention the use of veto power to force the government to respond to the “five demands” put forward by rioters during the “black-clad” riots of 2019-20. The court noted that Lee was only conscripted at a later stage in the run-up to the “primary election”. Lee did not say anything about “vetoing” or “five demands” on his Facebook account.

Strict adherence to the “co-conspirators rule” by the court has also brought about the prosecution case of complicity against the defendants. Although most of the defendants did not directly join the conspiracy, they would still be prosecuted under the above rule. That means the 25-page documents and Facebook posts written or uploaded by Benny Tai Yiu-ting and Au Nok-hin outside the court could be admitted as evidence against all defendants in the trial. But Justice Lee Wan-tang reminded the prosecution that the NSL was not in effect when the conspiracy was formed and such conspiracy was not illegal then (Jane Cheung, “Co-conspirators Rule” Sought, in The Standard). Finally, it was held that the words and deeds of Tai and Au could only be used to testify against these two organizers.

Finally, and most importantly, the balance of gradations of mens rea has been tilted in favor of the 47 defendants. While intent-waived strict liability favors the prosecution in an overwhelming manner, the requirement to prove specific intent, at the other end of spectrum, is in favor of the defendants. A specific intent is one where the definition of the mens rea requires additional proof of an intention to bring about a consequence beyond the guilty act of the offense (Michael Allen & Ian Edwards, Criminal Law (Oxford: OUP, 2017)).

In this case, the panel ruled that a successful conviction would require proof of basic intent and specific intent. The basic intent is to participate in unlawful acts, and it has to be accompanied by a specific intent to subvert State power. As Senior Counsel Ronny Tong Ka-wah has correctly pointed out, the court had set an unprecedentedly high threshold for the conviction of subversion under the NSL (Hans Tse, Verdict in Landmark Hong Kong National Security Trial Shows Common Law System Intact, Government Advisor Says, in Hong Kong Free Press).

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The above analysis shows that the three-judge panel has strictly applied common law principles to conduct a fair trial. The trial has demonstrated that the entrenched evidential rules of our common law system have been implemented to the last comma. In the interest of justice, the panel has held an extraordinarily firm line against malicious intervention by external forces, and therefore the principle of judicial independence is working well in the city. The judiciary deserves our deepest respect.

Ng Tsz-hin is a coordinator of the Chinese Dream Think Tank’s Rainbow Pair mentorship program, and an LLB student of the University of Hong Kong.

Kacee Ting Wong is a barrister, part-time researcher at the Shenzhen University Hong Kong and Macao Basic Law Research Center, district councilor, and the chairman of Chinese Dream Think Tank.

The views do not necessarily reflect those of China Daily.