Court refuses DOJ attempt to re-arrest acquitted protestors

In January 2023, the DOJ applied to court to re-arrest nine individuals who had already been tried and acquitted of unlawful assembly and riot charges. DOJ prosecutor Ivan Cheung sought the arrest warrants to prevent those individuals from leaving Hong Kong pending the prosecution’s appeal. The judge refused the warrants as these individuals had already been under stringent bail conditions while their cases progressed, and he was not convinced of the strength of the prosecution’s intended appeal.

Cheung also asked that, if the warrants were refused, the court should not publicize its decision, as otherwise there was allegedly a risk that the individuals would leave Hong Kong. The judge refused this application, emphasizing that justice must be administered in public.

It seems to us that the judge’s decision is correct. The public pronouncement of court decisions and their reasoning is a fundamental requirement of the just and efficient administration of the criminal justice system. The proceedings for these individuals had ended and they ought to have been entitled to leave Hong Kong at any time. In a recent civil case, the court stated that natural justice requires all parties to be heard, save in the most exceptional circumstances. This is all the more so in criminal cases, where the personal liberties are at risk.

More generally, we are concerned about increased secrecy surrounding cases deemed by the government to be “politically sensitive”, and the DOJ’s evolution towards an executioner of oppression rather than acting as a minister of justice. It is alarming to note how vindictive the government has been against those previously arrested. This included changing charges in order to secure a conviction, and re-arresting protestors years after their release. In December 2022, the police re-arrested Democratic Party chairperson Lo Kin-hei to prevent him from leaving Hong Kong, even though he had already been acquitted of unlawful assembly charges.

(This article originally appeared as an item in the Jan-Feb 2023 edition of our newsletter.)

%d bloggers like this: