The first defendant to face prosecution under Hong Kong’s national security law has challenged the government’s decision to try him without a jury, arguing that the decision was “procedurally unfair” as it was reached without consulting or notifying him.

Tong Ying-kit, 24, is accused of driving his motorbike into a crowd of police officers while flying a protest flag last July. He is charged with terrorism and inciting secession under the national security law, which carries a maximum penalty of life in prison.

Tong earlier filed a judicial review against the prosecutor’s decision to deny him a jury trial.

His lawyer, Philip Dykes, argued on Monday that the secretary for justice did not notify Tong about the jury decision, and that the defendant was given no explanation or opportunity to respond.

“The failure of [the justice secretary] to accord procedural fairness makes the decision unconstitutional,” Dykes said.

Trial by jury is a constitutional right enshrined in Hong Kong’s Basic Law, and should not be taken away at the whims of the justice secretary, Dykes argued. Prosecutors must justify their decision by explaining why a jury trial would lead to unfairness, he added.

Article 46 of Hong Kong’s national security law states that the secretary for justice may order a national security case to be tried without a jury for a range of reasons, including protection of state secrets, the involvement of foreign factors and jurors’ safety concerns.

Dykes said he was not challenging the constitutionality of Article 46 itself, but said the justice secretary acted unconstitutionally in her application of that law.

Barrister Jenkin Suen, representing the government, argued that trial by jury was not a constitutional right and the justice secretary was under no obligation to explain her decision.

Prosecutorial decisions – including that of denying a jury trial – are protected under Article 63 of the Basic Law, and were not open to judicial review save for exceptional circumstances, Suen argued.

The Basic Law states that the “principle of trial by jury previously practised in Hong Kong shall be maintained,” but that does not mean the jury system could never be changed, Suen said. The national security law only changed the rules on jury trial for a narrow set of cases, and did not alter the system in a major way, he added.

Judge Alex Lee said he will hand down his ruling next week.

Prosecutors on Monday also applied to add a charge of “dangerous driving causing grievous bodily harm” against Tong, which was opposed by the defense. The issue will be addressed in a hearing scheduled for June 7.

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