THE ADVOCATE 191
VOL. 80 PART 2 MARCH 2022
The objective perception that NSL judges are not independent is not
rebutted by the fact that they are members of the judiciary appointed by the
CE pursuant to a transparent process, have taken a judicial oath and are of
the highest integrity,42 nor that they were always seen to act independently
in their other judicial duties.43 Courts have rejected those arguments.
In summary, the CE’s designation of judges for only one-year terms, with
discretion to renew the designation for another one-year term and discretion
to remove a judge from the designation list, fails the objective perception
test for judicial independence. Independence of the judiciary must
exist all the time and for all judicial business, not most of the time and for
most of the business.
To answer the question posed earlier: Will the NSL affect common law
judicial independence in the HKSAR? Yes.
Trials of NSL Offences
In Hong Kong, the prosecution decides whether an indictable offence is to
be tried in the Court of First Instance of the High Court before a judge and
jury, or in the District Court before a judge alone. Serious indictable
offences for which a sentence in excess of seven years’ imprisonment is
likely to be imposed on conviction are customarily tried in the Court of First
Instance.
If an NSL case is to be tried in the Court of First Instance, the Secretary
for Justice may issue a certificate directing the NSL case to be tried without
a jury. The grounds are (among others): protection of state secrets, involvement
of foreign factors or protection of the personal safety of jurors and
their family members.44 However, issuance of a certificate is not limited to
these three grounds. Although the Secretary’s decision to issue a certificate
is subject to judicial review on limited grounds of dishonesty, bad faith or
other exceptional circumstances,45 a successful judicial review would have
as much chance as an iceberg in Hong Kong’s Victoria Harbour.
What is the perception of the person in the dock accused of an NSL
offence? The offence has been investigated a special department of the
Hong Kong Police Force and advised upon by prosecutors in a special division
of the Prosecutions Division. They are tried by a judge from the CE’s
designation list, and if the trial is in the Court of First Instance, the Secretary
for Justice may issue a certificate for them to be tried by three designated
judges without a jury. An objective observer could perceive that the
trial judges are not independent and, consequently, the person is not guaranteed
a fair trial. However, since the NSL is a PRC law having special constitutional
status, the person cannot challenge the independence of the
judges as being incompatible with the Basic Law or Bill of Rights before the