Hong Kong prosecutors will be allowed to appeal against acquittals in some national security cases in Court of First Instance under proposed change

Defendant has right to appeal but under current practice the prosecution does not, according to Department of Justice

Proposal will fill gap in law created by imposition of national security law which allows cases to be tried by panels of judges without juries

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Hong Kong authorities have mooted a proposal that will fill a gap in the law created by the imposition of the national security law. Photo: Warton Li

Published: 10:38pm, 21 Apr 2023Updated: 1:49am, 22 Apr 2023

Hong Kong prosecutors will be allowed to appeal against an acquittal by High Court judges over their understanding of the law concerning national security cases which were tried without a jury under a proposal by authorities.

The Department of Justice, in a consultation paper, argued the present practice, which does not allow the prosecution to appeal against an acquittal by a panel of judges trying a national security case in the Court of First Instance, was a “legal lacuna” – a gap in the law –, which had given rise to an “anomaly”.

The secretary for justice may appeal against an acquittal by a magistrate or the District Court under existing legislation “by way of case stated” – centring on judges’ understanding of the law rather than their findings of the facts – or ask for a review of any sentence passed.

Two women look at a banner advertising the National Security Law. Photo: Felix Wong

But the prosecution does not enjoy such a right against an acquittal of a defendant after a full trial in the Court of Final Instance. It is also barred from taking the case to the Court of Final Appeal if a jury reached the decision in the Court of Final Instance.

While most cases in the Court of First Instance are tried by a jury, the Department of Justice said that cases involving national security offences could also be heard before a panel of three judges, as stipulated in the 2020 Beijing-imposed legislation.

“Just as there is a legitimate public interest in allowing the prosecution to appeal against an erroneous verdict of acquittal by a magistrate or the District Court by way of cases stated, there is no reason why the prosecution should not, in similar circumstances, be allowed to appeal against an erroneous verdict of acquittal by a panel,” the department said in the paper.

“This appeal mechanism is especially important in the context of handling cases concerning offences endangering national security. It is necessary to ensure proper discharge of the judicial authorities’ duty under the Hong Kong national security law to effectively prevent, suppress and impose punishment for acts and activities endangering national security.”