A jailed activist linked to the now-dissolved alliance behind Hong Kong’s Tiananmen Square vigil has argued in court that a presiding judge should step down from the case because of the justice’s previous knowledge of police allegations which could undermine her right to a fair trial.
Chow Hang-tung, 39, on Monday asked for the recusal of Madam Justice Anna Lai Yuen-kee, one of the judges hand-picked to hear national security cases.
Chow, a barrister who represented herself in the High Court in front of the three-judge panel, the court to decide whether Lai should step away from the trial.
The defendant and two other members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China face subversion charges.
She asked the court to consider the “real possibility” of Lai being biased based on the police’s investigation report the judge had access to when handling an appeal against a previous conviction.
The report, however, was never fully disclosed to Chow or her defence team, because of a “public interest immunity” exemption granted by the court to spare the prosecution from having to reveal evidence related to continuing national security investigations.
The report, with many sections blacked out, was made available to the public when now-retired Principal Magistrate Peter Law Tak-chuen delivered his verdict when he convicted Chow and the others in another case in 2021.
“[The report] involved a lot of serious allegations [against the alliance], but the paragraphs pointing to those allegations were covered,” Chow told the court. “We are not sure what these devastating allegations are.”
“It would be far from ideal if the court had received extremely serious allegations before, that were not presented to the trial judge.”
Chow stressed that her application for the removal of Lai was not personal and that it did not mean the judge had done anything wrong by having access to the information that she did not have.
But she pointed out that as Lai had read the full investigation report submitted to her by the prosecution, it was arguable that extra information could affect her.
Lai, on the bench along with Justice Alex Lee Wan-tang and Justice Johnny Chan Jong-herng, did not respond to Chow or ask questions during the submission.
Lee said judges often had to hear submissions and evidence during a long trial, including what was said in the prosecution’s opening and cautioned statements, but some of them could be proven wrong or were not admissible at a later point in the trial.
Lee asked Chow whether she would argue judges had to be recused every time these situations came up because their minds were “polluted”.
Chow underlined that the report was never presented in open court, and that had deprived her of the chance to respond to any allegations about individuals or organisations that were under suspicion.
She added that she assumed her name was mentioned in the redacted paragraphs, which could also involve allegations against her, but she had no way of knowing.
“It is quite challenging, as we [he and Justice Chan] also do not know the text being covered,” Lee said.
“Madam Justice Lai said the content was unrelated to you personally, but you are making assumptions that it is.”
“This is exactly the predicament we find ourselves in,” Chow replied.
She added it was difficult for the defence to determine if Lai would be impartial given that the judge had seen allegations police used against her and the other defendants.
Deputy Director of Public Prosecutions William Tam Yiu-ho said a professional judge – who had taken the judicial oath – should be capable of “putting allegations behind her”.
A written ruling on Chow’s application will be delivered on July 5.
