Elsa, they said that you dashed out of the magistrate’s court in tears the other day because you could not withstand those four days of torture in court. Eventually Hendrick Lui, your adopted son, was granted bail by the court, and yet his freedom was immediately taken away by the prosecution who requested a review of the court’s decision. You love Hendricks deeply, telling people he is a kind-hearted man. But he is more than kind-hearted. He is also a righteous person. I am aware that he previously challenged the joint checkpoint arrangement at the West Kowloon railway terminal and he requested a review of the inadequate investigations of the Independent Police Complaints Council. He did his best despite all the difficulties he faced, demonstrating his intelligence, benevolence and courage, which are grounded on his sense of justice. He believes in the rule of law, and yet this is what has betrayed him today. Your sadness and his suffering all stem from love.

All 47 people packed inside the dock have lost their freedom for the sake of Hong Kong, a place they love, and for the sake of their ideals and justice. The four-day bail hearing was a torture to them, their families and loved ones, and their defense lawyers. What heinous crime have these people committed to have to be tried in the court? I listened and listened, and all I got was that their sin was their participation in the pro-democracy camp’s unofficial primary. They hoped to challenge the regime by winning seats at the Legislative Council. In any civilized society, matters surrounding a candidate’s participation in a poll should be resolved via a fair election. The biggest price to pay for a candidate is merely time, efforts and money spent on his campaign. Only in a totalitarian society can criminal laws and imprisonment be used as tools against political rivals. Most miserable of all, the whole thing is like an endless nightmare. All the things in Hong Kong that we used to know have changed abruptly. The defense lawyers who have handled cases at local courts many times could not recognize the place they were in and the procedure they had to follow.

If running in a primary is not a crime but an act to serve society and create a better future, how are the “defendants” to defend themselves? To be granted bail under the national security law, they need to convince the judge that there are sufficient grounds that they will not “continue” to endanger the state if released. If participating in a primary is a matter of serving society, not endangering it, let alone the state, how are the defense lawyers to convince the court that their clients will not “continue” doing such things? Based on the logic of nightmare, are they to only argue that their clients will never in a million years, and have no intention or the ability to, do such things? Even if that is the case, how are these eloquent lawyers to convince the court that the pro-democracy advocates will never contribute to society via other means if getting into politics is a crime? How are they to make the court believe that the activists will close their eyes and block their ears and their heart? Does that mean the judge will not be relieved enough to grant them bail unless they guarantee they will be isolated from the world? Or that they have to give up the right to free thought in exchange for personal freedom for a short period of time?

I can’t figure out on what basis the court decides who can be granted bail and who cannot. Under the principles of the common law, it is not difficult to identify ordinary crimes. But under the national security law, it is a crime to take part in an election. For the defendants to be granted bail, does it depend on their determination to quit politics? Or do those with less influence and whose political performance has not been that impressive stand a higher chance of being released on bail? Details of the bail submissions are not allowed to be reported, and we will never know the rationale behind the result.

Over the four days, the most infuriating thing was that the defendants were deprived of their dignity, and so was the court. Why couldn’t the court make sure that everyone brought before the judge could sport a clean look, have enough time to rest and eat, and be given a fair hearing? If an arrestee is interrogated for four days in a row in a police station, the testimony he gives will be deemed invalid. So how come a pre-trial hearing worse than that is not considered unfair? Why could the court not instruct officers of the Correctional Service Department or even the prosecution to adjust the arrangement and let the defendants put on clothes brought by the families? Why were the defendants and their families placed in different courtrooms and brought to tears?

Hendrick and the other 14 people granted bail lost their freedom as soon as they were granted bail. According to the magistrate, the law stipulates that if the Department of Justice applies for a remand review, the court “must” approve it. But the law is not totally rigid. Does the court not even have the power to demand the prosecution to provide a convincing reason for remanding the 15 in custody? Or was the court simply unwilling to exercise such power?

Elsa, the defense lawyers in the court were also in tears, because they care about the rule of law and do not want to see it collapse. I am on the same page. Last March, I wrote an article reminding my fellow lawyers of the words of a judge that I have cherished all these years. I was such a nag. The article was written in English and it went something along the line that one prerequisite for judicial independence was that the court must have the power to safeguard people’s freedom, and that if courts’ power was too narrowly defined and was therefore unable to protect people’s freedom, the legal sector must strive for expanding courts’ power, because one could not make sure that judicial institutions with no power to safeguard people’s freedom would not become, or give the impression that it was, part of the machine depriving people’s freedom.

Elsa, wipe off your tears, just as we and all our comrades must. For we have to work for what we love.

(Margaret Ng Ngoi-yee is a barrister, writer and columnist in Hong Kong. She was a member of the Legislative Council of Hong Kong from 1995-1997; 1998-2012.)

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