A dozen world legal experts have released an open letter saying the imprisonment of student activists Joshua Wong, Alex Chow and Nathan Law is “a serious threat to the rule of law” and violates the principle of “double jeopardy”.
The lawyers come from Britain, Canada, the United States, Australia, South Africa and Malaysia. They include Lord Charles Falconer, Britain’s Secretary of State for Justice; Kirsty Brimelow, chair of the Bar Human Rights Committee of England and Wales; and Jared Genser, who represented the late Chinese dissident Liu Xiaobo.
The letter was posted on the Hong Kong Cultural and Political Forum’s Facebook page. It stated that Hong Kong’s public order ordinance violated the international covenant on civil and political rights.
The page was created by a group of overseas Hong Kong students based in Toronto and London to discuss political issues in Hong Kong.
The letter quoted former Permanent Judge of the Court of Final Appeal Kemal Bokhary as saying that “Hong Kong’s judges try to protect its judicial independence but face great pressure from Beijing”.
The letter also said that Beijing’s White Paper on Hong Kong is a threat to the independence of the judiciary, which “risks becoming a charade” as Hong Kong’s rulers are commanded to be patriotic “at the beck and call of the Chinese Communist Party”.
The letter ended by saying that “one country, two systems” remains the most important factor of Hong Kong’s judicial independence and faces a precarious and unprecedented challenge.
The Department of Justice (DOJ) responded with a long article to rebut each of the points, claiming that the letter had blatantly ignored the legal standpoints that had been presented in the Court of Appeal, such as the fact that the defendants where not jailed for their political views but for their violent actions.
Based on the fact that the Court of Appeal had deducted jail time after considering that the trio had finished their community service orders, there was no such thing as “double jeopardy” in the case, the DOJ said.
The DOJ said it had followed the procedures of requesting an appeal of the sentence within 14 days after the defendant’s verdict was announced and not after the original penalty was carried out.
It also wrote that the case had nothing to do with the White Paper or Bokhary’s opinions.
The DOJ said Hong Kong’s judicial independence has been “truly functional” and efficient, adding the open letter had obvious misunderstandings of Hong Kong’s laws.
Barrister and Legislator Alvin Yeung Ngok-kiu said that the trust that Hong Kong’s judicial system has tried to establish has been shaken by the fact that the DOJ’s appeal had looked more like a political maneuver than a fair trial.
The move will ultimately affect Hong Kong’s interests as investors decide to go elsewhere due to political and judicial instability.
He urged the DOJ to give up its power to prosecute criminals to an independent Prosecutions Division or reform its current policies in order to restore people’s faith in Hong Kong’s system.
Kevin Yam Kin-fung of the Progressive Lawyers Group said that he welcomed the global attention to Hong Kong’s political situation.
However, he does agree that the “double jeopardy” theory raised by the lawyers’ letter is not a valid point as the DOJ had followed proper procedures.
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