Fears turn into reality
Hong Kong Freedom of Expression Report 2022
Chapter 1
The UN Human Rights Committee this year urged the Hong Kong government to repeal the National Security Law and the sedition provisions of the Crimes Ordinance and to “refrain from using them to suppress the expression of critical and dissenting opinions”. The remarks were contained in the committee’s findings on Hong Kong’s implementation of the International Covenant on Civil and Political Rights (ICCPR), released on July 27, 2022.
It is unfortunately true that the Hong Kong Journalists Association (HKJA) made a similar call regarding the sedition offence 30 years ago because of the grave threats it poses to freedom of expression and of the press.
Back in 1993, the HKJA and Article 19, a London-based group that advocates for freedom of expression, urged the government to repeal or liberalise the sedition provisions. The law was one of 17 that were seen as incompatible with Article 16 of the Hong Kong Bill of Rights, which mirrors Article 19 of the International Covenant on Civil and Political Rights. HKJA argued that these laws – and in particular the security-related legislation – posed a threat to freedom of expression.
Regrettably, little has been achieved in three decades, and the situation the HKJA pointed out in its 1994 annual report remains largely true. It reads:
“The lack of significant progress over the past 18 months on the amendment of legislation which is threatening to freedom of expression is a cause now of deepening concern … the effective admission by the British administration that it is not prepared to engage China in further disruptive political conflicts over what it appears to believe are issues best left alone, may mean that the remaining laws under review will be amended only superficially or possibly not at all … certain laws, including contentious security-related laws – may carry over into the post-1997 SAR in their existing form, and present an open invitation to abuse.”
The current situation proves that these fears have become reality.
Current Chief Executive of Hong Kong John Lee speaks at a press conference in the Central Government Office in June 2020. Vetted by Beijing, John Lee was the only candidate in Hong Kong’s 2022 election in May. Credit: Vernon Yuen / NurPhoto via AFP
Unamended laws abused, society suffers
Among the 17 laws that the HKJA wanted reviewed in 1993, only eight – all carrying less weight – were amended before Hong Kong was handed over to Beijing in 1997. This means the majority of the laws targeted by the HKJA remain on the statute books. The most notable are the sedition offences in the Crimes Ordinance and the Emergency Regulations Ordinance. The sedition law has been used to arrest or prosecute 43 people and four companies in 20 cases over a period of 2.5 years. The Emergency Regulations Ordinance was used to prohibit the use of face coverings during the 2019 protests against a controversial extradition amendment bill that would have allowed Hong Kong citizens to be sent to mainland China for trial.
In the 1993 report, the HKJA and Article 19 proposed amendments to the sedition and treason offences in the Crimes Ordinance. The HKJA pointed out that “these (offences) pose grave threats to freedom of expression and of the press in that they provide for the prosecution of publications of an allegedly treasonable or seditious nature”. It also questioned whether the offence of sedition should continue to exist in any democratic society.
When the Crimes (Amendment) (No. 2) Bill 1996 was tabled, the HKJA and two legal professional bodies supported the repeal of sections 9 and 10 covering seditious intention and offences because they contravened the basic rights enshrined in the ICCPR. Moreover, according to the bills committee report tabled in the Legislative Council House Committee on June 13, 1997, the Law Society and JUSTICE (the Hong Kong section of the International Commission of Jurist, which advocates for human rights and the rule of law), considered that the offence of sedition was archaic, had notorious colonial connotations and was contrary to the development of democracy.
Then legislator Emily Lau Wai-hing proposed to repeal these provisions. She reasoned that the offences criminalised expression and that the provision on seditious intention could be interpreted so broadly that it threatened human rights. The legislature passed the amendment bill without Ms Lau’s changes a week before Hong Kong was handed over to China on July 1, 1997. The bill did contain Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which meant that an intention to cause violence was necessary for a prosecution to succeed. However, the last British governor, Chris Patten, did not sign the amendment into law, so the changes were not implemented after the handover. This meant the sedition offence, along with its shortcomings, remained unchanged.
“Among the 17 laws that the HKJA wanted reviewed in 1993, only eight – all carrying less weight – were amended before Hong Kong was handed over to Beijing in 1997. This means the majority of the laws targeted by the HKJA remain on the statute books.”
Sedition revived, arrests follow
The offence, which was first enacted through the Sedition Ordinance in 1938, was used during the 1967 pro-Communist riots. It then lay dormant until March 26, 2020, when Cheng Lai-king, a Democratic Party district council chairperson, was arrested for seditious intent. The arrest was said to be related to posts she forwarded on Facebook. However, Ms Cheng was not formally charged.
Since then, the police have used sedition offences widely against the peaceful exercise of freedom of expression. The situation grew worse, especially after the top court, namely the Court of Final Appeal, in 2021 raised the threshold for bail applications for sedition offences by applying the same stringent standard that was already used for national security legislation.
Among those arrested were activists chanting slogans while campaigning on the street, journalists compiling news reports, students protesting on campus and professionals publishing children's books with political references. The arrests even affected ordinary citizens administering their own social media accounts, sharing criticism against government policy, reminding people of special dates during the 2019 protest movement, delivering promotional flyers or posters to the public or clapping their hands and shouting in court.
Steve Li, senior superintendent of Hong Kong’s new National Security Police unit holds an allegedly seditious children’s book at a police press conference in Hong Kong on July 22, 2021. The book was published by five speech therapists, all of whom were convicted of spreading sedition in early September 2022. Credit: Daniel Suen / AFP
“The arrests even affected ordinary citizens administering their own social media accounts, sharing criticism against government policy, reminding people of special dates during the 2019 protest movement, delivering promotional flyers or posters to the public or clapping their hands and shouting in court.”
Criminalising free speech
More disturbing is the fact that Hong Kong’s courts upheld the criminalisation of speech (see chapter 4). While convicting five speech therapists who published picture books for children to 19 months’ imprisonment, District Court judge Kwok Wai-kin concluded that the use of force or a threat to use force was not necessary to secure a conviction for sedition. He even stated that the threat posed by words might be more damaging and could bring down a government or cripple its running.
Scholars and human rights advocates disagreed vociferously with the Hong Kong ruling. Eric Lai Yan-ho, a Hong Kong law fellow at the Center for Asian Law at Georgetown University in Washington D.C., said the picture book judgement signalled that the court had retrogressed to the early colonial stage when it came to cases of freedom of speech, expression and publication. The chilling effect deepened by the court’s ruling had the greatest impact on the publication and creative industry, he said.
In the children’s book case, the prosecutors contended that a book portraying the Chinese government as a “brutal, authoritarian, surveillance state” could “weaken” the Chinese government’s sovereignty over Hong Kong. Human Rights Watch described the prosecution as “without basis” and described the sedition offence as an archaic, overly broad crime used to clamp down on peaceful dissent.
The Law Society and JUSTICE argued to the Hong Kong legislature in 1997 that the sedition law was contrary to the development of democracy. This was echoed in a report in India Today, the most widely circulated magazine in India, which described the anti-sedition movement as an overwhelmingly global phenomenon. It stated: “Many democratic countries, including the United Kingdom, Ireland, Australia, Canada, Ghana, Nigeria and Uganda, have held sedition law as undemocratic, undesirable and unnecessary.” It went on to cite how sedition laws had been repealed or made a dead letter in South Korea in 1988 and the US, New Zealand, Scotland, Indonesia and Singapore in 2021.
Indeed, the Supreme Court of India issued an interim ruling in May 2022 effectively halting all use of the country's sedition law. It argued that the law was "not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime". The Indian government has agreed to reconsider the law.
The Hong Kong government is following a completely different and regressive path, turning a deaf ear to civic groups, including the HKJA and the International Federation of Journalists, as well as bodies such the UN Human Rights Committee, which has called for the repeal of sedition laws. In the words of Indian independence activist Mahatma Gandhi, sedition laws are the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. This is as true for Hong Kong’s citizens as it is for India’s.
“The picture book judgement signalled that the court had retrogressed to the early colonial stage when it came to cases of freedom of speech, expression and publication.”
Emergency Regulations Ordinance abused
The HKJA 1994 annual report assessed the government's slow progress in reviewing problematic laws, concluding that the potentially most dangerous was the Emergency Regulations Ordinance. This ordinance allows the Governor in Council to “make any regulations whatsoever which he may consider desirable in the public interest” during ill-defined conditions of emergency.
The ordinance has not been amended since the HKJA published that report. Rather, its dangers lay dormant for 46 years, only to surface during the 2019 protests against the extradition bill. The government abused the ordinance, bypassing the legislature to enact contentious regulations infringing free expression and voting.
It attributed to the failure of the ordinance to recognise the limits placed on the declaration of emergencies in section 5 of the Hong Kong Bill of Rights Ordinance, which mirrors article 4 of the International Convention on Civil and Political Rights.
The government led by the last British governor of Hong Kong, Chris Patten, agreed to review the ordinance, and in particular to study whether it was necessary to introduce more defined legislative controls on the exercise of emergency powers. In 1994, the HKJA noted its concern that these changes were “unlikely to be substantive” and, in the end, none were made. As a result, the extremely wide powers originally conferred on the Governor in Council are now available to the Chief Executive in Council.
The very wide powers conferred on the Chief Executive in Council are stated in 14 subsections. They include censorship; arrest, detention, exclusion and deportation; a requirement for persons to perform service; requisition of property; amending any enactment; and “such incidental and supplementary provisions as appear to the Chief Executive to be necessary or expedient for the purposes of the regulations”. These were the unrestricted powers that enabled the then Hong Kong chief executive, Carrie Lam Cheng Yuet-ngor, to enact the Prohibition on Face Covering Regulation on October 4, 2019, without referring the matter to the Legislative Council.
The law prohibits people in unauthorised assemblies or public meetings and processions to use any face covering that is likely to prevent identification. Further, police can ask people to remove their face coverings in all situations. Ms Lam did not declare a state of emergency, yet she claimed it was necessary to use the emergency law so the authorities could restore public order. Her aim was to quell the city’s escalating unrest, which was fuelled by growing public anger towards perceived police brutality.
Graduating university students from the Hong Kong Polytechnic University wear Guy Fawkes masks in protest of the colonial-era Emergency Regulations Ordinance which prohibited the use of face coverings at protests. Credit: Noel Celis / AFP
Human rights abuses amid pandemic
Critics pointed at the infringement of human rights that the face-covering regulation entailed. Pan-democratic legislators and freedom advocacy groups complained that the law deprived residents of their human rights, especially freedom of expression. Then Democratic Party chairman Wu Chi-wai said Ms Lam had opened Pandora's box by enacting the new law and he expected the government to use the emergencies law to enact more rules to suppress the public's political will.
Lawmaker Claudio Mo Man-ching accused the government of clamping down on protests seeking the repeal of an evil law by using a law that was yet more evil. Dennis Kwok of the Civic Party challenged the constitutionality of the chief executive's act in bypassing the legislature, given that legislative power was conferred on the Legislative Council by the Basic Law, Hong Kong's mini-constitution.
Pan-democrats took legal action on the matter, but Hong Kong’s top court rejected their appeal. One of the reasons the Court of Final Appeal upheld the constitutionality of the law was that the Emergency Regulations Ordinance had survived two judicial reviews in the colonial era and there was no mention of any conflict between the ordinance and the Basic Law when the mini-constitution was being drafted in the early 1990s.
In the first four days after the anti-mask regulation became effective, officers arrested 91 people. No figures were released after that. Those arrested usually faced other charges, including rioting and unlawful assembly. It is difficult to tell how many people fell foul of the law. According to news reports, 12 defendants in two cases were sentenced in early 2022 to community service orders or jail terms of up to three months for breaching the anti-mask regulation. The maximum penalty is one year in prison and a fine of HK$25,000.
During her time as chief executive, Ms Lam also used the Emergency Regulations Ordinance to deprive millions of Hong Kong residents of their voting rights in two important elections, the legislative council election in 2020 and the chief executive election in 2022. In late July 2020, Ms Lam enacted the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation to postpone the legislative council election for one year, citing the Covid-19 pandemic.
The election was scheduled for September 6, 2020, and there were widespread expectations that the pan-democrats could win a majority in the legislature. However, new rules stipulating that only patriots could run meant that pan-democrats had almost no chance of even qualifying as candidates.
In the end, no traditionally defined democrats stood for election and many of their supporters abstained from voting in the rescheduled polls on December 19, 2021. The voter turnout rate for geographical constituencies tumbled to a historic low of 30.2 per cent, or 1.35 million people. This was a significant 850,000 voters fewer than in the previous poll in 2016. Those who voted were choosing 20 legislators, down from 35 in the 2016 poll.
There were also considerable reductions in the number of voters in the functional constituencies, which represent professional interest groups such as accountancy, finance, social welfare and tourism. Likewise, there was a reduction in the number of voters for the Election Committee, which chooses the chief executive and 40 out of 90 seats in the revamped and much less democratic Legislative Council.
In February 2022, Ms Lam once again used the powers conferred by the emergency ordinance to postpone the chief executive election by six weeks to May 8, 2022. She again cited the pandemic as the reason for the delay, but critics suggested it may have been ordered because Beijing had not yet decided who should be the next chief executive.
A perhaps less controversial use of the emergency ordinance was the enactment of the Emergency (Exemption from Statutory Requirements) (COVID-19) Regulation in February 2022. This allowed the chief secretary to waive certain licensing or registration requirements to bring in medical workers to deal with the pandemic.
Pro-democracy legislator Claudia Mo holds her resignation letter and a yellow umbrella at Hong Kong’s Legislative Council on November 12, 2020. The council’s pro-democracy bloc had said they would resigned en masse after the ousting of four legislative council members by Pro-Beijing authorities under the 2020 National Security Law. Credit: Peter Parks / AFP
Official Secrets Law threatens freedoms
The 1989 Official Secrets Act was another area of “intense concern” noted in the HKJA's 1993 list of laws that should be reviewed. This was a British law extended to Hong Kong and later localised. The localized ordinance remained in place when China resumed sovereignty over the territory in 1997. The law aimed to control the unauthorised obtaining or disclosure of official information. The HKJA called for the law to be localised and liberalised through the introduction of defences based on public interest and prior publication.
The act was localised as the Official Secrets Ordinance four days before the handover on July 1, 1997, but it was not liberalised. Such liberalisation would have needed consultation with Beijing if it were to survive beyond 1997, and may have pre-empted the need for the new Hong Kong Special Administrative Region to enact a law on the theft of state secrets, which was required by Article 23 of the Basic Law.
The issue of theft of state secrets was somewhat unfamiliar in the context of Hong Kong law, but gained weight after the arrest in Beijing in 1993 of Ming Pao reporter Xi Yang for allegedly stealing state secrets. The move prompted the HKJA to call for official secrets legislation to include the public interest and prior publication defences.
The issue re-emerged in 2003 with the publication of proposed national security legislation in the form of the National Security (Legislative Provisions) Bill 2003. The government made some concessions during its public consultation, but withdrew the bill later in the year after 500,000 people took to the streets on July 1 to condemn it.
The issue of theft of state secrets is looming again because the current government is seriously considering the enactment of legislation under Article 23 of the Basic Law. Secretary for Security Chris Tang Ping-keung highlighted the need to combat espionage. He told lawmakers that the provisions in the Official Secrets Ordinance were not wide enough to tackle espionage and needed to be amended. "We feel that these definitions are not enough for us to combat all manners of espionage activities and risks arising from these," Mr Tang said.
Public consultation on the proposal is yet to start, and it is therefore difficult to foresee how press freedom will be affected. However, given the oppressive nature of the National Security Law imposed by Beijing on Hong Kong in June 2020, liberalisation of the official secrets law is unlikely, if not impossible. Disturbingly, the government is considering whether a new law is needed to deal with “fake information” or “fake news”.
A number of foreign correspondents privately expressed worries about the enactment of Article 23 legislation after Mr Tang’s remarks. They are afraid that they will become targets of the new law, which could easily be abused. This author has learned from anonymous sources that the Hong Kong bureaus of some Western media outlets have been scaled down and one news agency has even sold its premises to allow greater flexibility over any decision to leave.
Hong Kong's international status will be weakened without the presence of foreign media outlets, especially those from the West. Their departure will most certainly affect Beijing’s stated aim of maintaining the city’s international status, not least by undermining the enjoyment of press freedom in particular, and freedom of expression in general.
“A number of foreign correspondents privately expressed worries about the enactment of Article 23 legislation . . . afraid that they will become targets of the new law, which could easily be abused.”
Legal protection for journalistic material declines
In 1993, the HKJA called for a review of the search and seizure powers contained in the Police Force Ordinance as they pertain to journalistic material. These efforts resulted in the introduction in 1995 of special procedures in the Interpretation and General Clauses Ordinance to limit the powers of the police to search and seize journalistic material. Sections 81 to 89 of the law set up a three-tier mechanism for the disciplinary forces to apply to the District or High Court for search warrants if journalistic material is involved. The provisions are important to maintain the independence of news media and to protect confidential sources, which helps maintain public trust in journalistic work.
The enforcement of the law was imperfect, but it did give protection to media outlets in certain cases. For example, the police failed to secure production orders from the High Court in an inter partes application involving five media outlets that filmed a deliberate attack by seven police officers during the Occupy protest movement in 2014. However, the anti-corruption agency succeeded in several ex parte applications to secure search warrants which allowed the authorities to examine journalistic material, prompting uproar in the news industry in 2004 when the authorities carried out searches involving seven media outlets.
The application of the National Security Law changed all that when the police National Security Department searched the offices of Apple Daily in mid-June 2021. Department head Steve Li Kwai-wah legitimised their action by getting a warrant under article 43(1) of the law and its Implementation Rules. The provision empowers the police to apply under the laws in force to search premises and electronic devices that may contain evidence of an offence endangering national security, including that contained in journalistic material.
Apple Daily’s founder, Jimmy Lai Chee-ying, whose mobile phones and other journalistic material had been seized in an earlier operation in August 2020, objected to the unsealing of the seized journalistic material, including his mobile phones. Mr Lai took the case to the High Court, which held in late August 2022 that the phrase “any material” in the National Security Law referred to all sorts of materials, meaning it would be unreasonable to exclude journalistic material. Mr Lai is appealing to the Court of Appeal, with a hearing date yet to be fixed.
Media Tycoon and Apple Daily founder Jimmy Lai appears before Hong Kong’s Court of Final Appeal to hear a decision on whether he would be granted bail in February 2021. Lai was ultimately sentenced to 14 months in prison in April 2021 for his role in 2019 pro-democracy protests. Credit: Isaac Lawrence / AFP
Access to information law a no-go area?
Another partial, but far from satisfactory, success of the HKJA's law reform effort in 1993 was the introduction of a non-binding government Code on Access to Information. The administrative code was implemented in March 1995 after the colonial government rejected the call for the enactment of access to information legislation, which would give individuals the right to seek and obtain government documents.
The campaign alliance, including the HKJA and legislators, argued that the government’s approach was “fundamentally inadequate” and worried that an administrative code of practice could be scrapped or ignored at will. Moreover, the ombudsman, the Commissioner for Administrative Complaints, has no powers to force the government or public bodies to release documents or information.
This did not stem Beijing’s objection, saying even such a timid proposal violated the Sino-British Joint Declaration of 1984 that paved the way for Hong Kong's return to China in 1997. The then spokesman of China’s Foreign Ministry, Shen Guofang, complained that the unilateral move by the British Hong Kong Government was “unacceptable to the Chinese side (of the Joint Liaison Group)”.
Shen added that the proposals involved “major changes” to the operation of the government, and hinted strongly that the measure might be rescinded after 1997. China did not scrap the code after 1997 and ironically enacted its own law, the Open Government Information Regulation, to protect people’s access to government information in 2019, although that measure's viability is open to debate.
Indeed, the question of whether to enact a freedom of information law in Hong Kong was referred to the Law Reform Commission. In December 2018, a sub-committee recommended that the government should enact such a law. Its chairman, Russell Coleman, said such a law "should be introduced to implement an access to information regime" so that Hong Kong would be in line with the practices of other developed countries.
However, there are serious doubts over whether the government will act on the recommendation, given its poor record in this area and the fact that it has been moving in the opposite direction, limiting access to information contained in databases held by the likes of the land and companies registries.
The free flow of information, sometimes mentioned alongside freedom of expression and a free and open news industry, used to be cited as one of the four pillars of Hong Kong’s success. Donald Tsang Yam-kuen, in his roles as financial secretary, chief secretary and finally chief executive from 2005 to 2012, repeatedly made such statements.
Tsang proudly told legislators in 2003 that “the four pillars of Hong Kong's success are still intact and as sturdy as ever”. He further spoke about “a high degree of freedom in the flow of information" being "essential not just to journalistic communication but also indispensable to Hong Kong as an international finance and business centre”.
The Hong Kong government needs to put words into deeds and should think twice about enacting any legislation hampering the free flow of information. This is particularly important if the Hong Kong government is serious about completing the task set by Beijing of keeping the city’s international status intact.
To better achieve this task, the government should seriously consider enacting a freedom of information law. It is the best way to demonstrate to the world its determination to uphold press freedom as well as freedom of expression. It is also the best way to enable officials to tell “good stories” about Hong Kong, as Chief Executive John Lee Ka-chiu encourages journalists to do.