On 1 July 2020, the first day that Beijing imposed the national security law in Hong Kong, and mere hours after the world had sight of the law – Tong was arrested. He was kept in detention until his trial, when he became the first person convicted under the same law. He was sentenced to nine years in prison for incitement to secession and terrorist activities, all for grazing a few police officers with a motorcycle while carrying a flag with a popular protest slogan.
In addition, Tong has now been slapped with court orders to pay HK$1.38m in costs to the Department of Justice, which may well bankrupt him. As per the analysis below, costs orders in this kind of situation are wrong in principle because the litigation involves issues of general public importance, and more importantly, because these costs orders punish those who try to avail themselves of basic human rights protections provided by the law.
In imposing the national security law, Beijing not only created new criminal offences, it also reversed well-established procedural safeguards in criminal procedure. It did so in a number of ways, two of which stand out in Tong’s case. First, while the common law provides for a presumption for bail for a defendant who has not yet been convicted, the national security law introduced a novel presumption against bail. A defendant now has prove they will no longer endanger national security in order to be granted bail. Second, while the common law provides for serious criminal cases to be tried before a jury, and indeed the Basic Law itself expressly recognizes the jury system, the national security law provides that the Secretary for Justice can override this by directing that a national security case be tried without a jury by a panel of three judges.
Before the trial of his case, Tong made applications for bail, a finding that his detention was without lawful authority (known as an application for a writ of habeas corpus), and for judicial review of the Secretary for Justice’s decision for his case to be tried without a jury.
The Hong Kong courts ruled against Tong on all these applications, and ordered that he pay costs to the Department of Justice for the habeas corpus application, and for his appeal on the judicial review.
Legal principles for costs orders
In civil cases, the general rule is that “costs follow the event”. This means that the losing party has to compensate the winning party for their legal costs. Given the scale of legal fees in Hong Kong, this can become a major consideration for litigants in whether to pursue a case. However, this rule has no application to criminal cases or habeas corpus applications, and is of only limited application to judicial reviews.
In criminal cases, the burden of proof lies on the prosecution. Costs orders against defendants are rare as defendants are entitled to put the prosecution to proof. Such orders are made in limited situations provided in the Costs in Criminal Case Ordinance (Cap. 492).
In the habeas corpus application, Tong’s lawyer noted that the national security law was novel, had been imposed without consultation, and was controversial. She argued that his proceedings provided a forum for the courts to clarify its application. The Department of Justice on the other hand was not satisfied with a costs order in their favour – but argued that Tong’s application for habeas corpus was an abuse of process, and that costs should be assessed at an even higher, punitive scale.
The court recognized that there is no general rule that a costs order should be made against an unsuccessful applicant. However, the court ultimately ordered that Tong had to pay the costs of the Department of Justice on a technicality (HCAL 1601/2020, 23 October 2020), which was that he should have brought a bail review rather than an application for habeas corpus. This was an unfortunate cop-out – the court had issued a lengthy judgment on the legality of Tong’s detention, as well as the interpretation and constitutionality of the national security law’s provisions on bail. The very fact that the court had found it necessary to do so points to the importance of the issues raised. Furthermore, the court expressly acknowledged that Tong’s application had raised issues of general public importance. Yet Tong alone had to bear the costs of bringing these issues before the court.
A judicial review is a class of civil litigation where an applicant challenges the constitutionality of a decision made by a public body. Here, Tong argued that he had a constitutional right to a jury trial, and that the Secretary of Justice’s decision to dispense with a jury was unlawful. The court refused Tong’s application for leave to judicial review, holding that the Secretary of Justice’s decision was a prosecutorial decision that could not be challenged unless it involved bad faith or dishonesty. Subsequently, the court also dismissed Tong’s appeal.
In judicial reviews, the general rule that costs follow the event is subject to a public interest exception. Where litigation is brought for the benefit of the community, the applicant should not be made to pay costs of the other party (Chu Hoi Dick v Secretary for Home Affairs, HCAL 87/2007, 6 September 2007). The court made no order as to costs of Tong’s application for leave to judicial review, but ordered that he pay the costs of the Department of Justice for the appeal. Yet again, the Department of Justice was not satisfied with a favourable costs order on the appeal, but sought additional costs.
Human rights protections in Hong Kong are mere window-dressing
Hong Kong’s Basic Law and Bill of Rights Ordinance provide for fundamental human rights. The national security law itself provides that human rights shall be “respected and protected”. Yet Tong’s case amply demonstrates how all of these “protections” ring hollow. Rights are only meaningful if they are given effect by the courts – and yet Hong Kong courts are continuously refusing bail, and condoning prolonged pre-trial detention, all the while asserting that the “everyone has the right to liberty and security of the person”, and “no one shall be subjected to arbitrary arrest or detention”. All of this no more than lip service.
And moreover: anyone who tries to vindicate their own legal rights, as Tong did, will be punished by costs. This means that in effect, nobody can avail themselves of the protections that the law provides on its face. Not only will the courts deny your rights, you will be punished for even trying. Not only will you be kept in prison for years on end, you will be bankrupt if you try to put up a fight.
Furthermore, the above account of how Tong became saddled with debilitating costs orders presents an illustration of how the Department of Justice has taken a vindictive approach towards dissidents and anyone who has expressed discontent against the regime. In both the habeas corpus and judicial review applications, the Department of Justice was not satisfied with the court’s order for Tong to pay their costs, but demanded even more than the usual assessment. In other cases, the Department of Justice has sought to review sentences handed down against protestors that it considered too lenient, twisted precedents from other jurisdictions to suit their own purposes, and pursued trumped-up charges that even a national security designated judge considered exaggerated.
The Department of Justice has evolved into a mere tool to carry out the regime’s political mission of bringing Hong Kong to heel. As the Congressional-Executive Commission on China put pithily in their new report, Hong Kong prosecutors play a key role in carrying out political prosecutions. While it is Beijing that seeks to force itself over Hong Kong, there are all too many in Hong Kong who are complicit in making it our new reality.