National security trumps free speech in courts
Hong Kong Freedom of Expression Report 2022
Chapter 4
Days after he was elected Hong Kong’s leader, John Lee Ka-chiu assured reporters that in his city there was no such thing as a speech crime. “People are brought to court because it is [suspected] that their actions are contravening the law. It is their action,” Lee said.
But since China began tightening its grip on Hong Kong, local courts have criminalised a wide range of public expression. Authorities have used offences under the National Security Law, which was imposed by Beijing in late June 2020, as well as the colonial-era offence of sedition, to target dissent. Despite Lee’s claims, the mere expression of political opinion – without the use or threat of force – can land a person in jail in Hong Kong today.
“Authorities have used offences under the National Security Law, which was imposed by Beijing in late June 2020, as well as the colonial-era offence of sedition, to target dissent.”
Deviation from international standards
When balancing national security and free expression, countries around the world can refer to the 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which were compiled by experts in international law, national security and human rights. The Johannesburg Principles balance national security and Article 19 of the International Covenant on Civil and Political Rights, which is applicable to Hong Kong and has been enshrined in local law.
As a result, the principles have been cited by Hong Kong courts, though they are not binding. When Hong Kong first contemplated passing national security legislation in 2003, the Security Bureau said the Johannesburg Principles were a “useful benchmark against which the proposals may be judged”.
Yet the National Security Law explicitly deviates from the principles. More worrisome, the application of local Hong Kong law that is regarded as relevant to national security also deviates from the principles.
The Johannesburg Principles begin by stating that countries may not restrict free expression on the grounds of national security “unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest”. The government has the burden of justifying why such restrictions are valid. The principles also propose a three-step test for what sort of expression may be punished as a threat to national security, namely: 1) the expression is intended to incite imminent violence; 2) it is likely to incite such violence; and 3) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
However, violence is not a necessary element of the crimes established by the National Security Law in Hong Kong. There are four categories of crime: subversion, terrorism, foreign collusion and secession. Among these, the subversion offence states that threat of force is needed for a conviction. No mention of force is made in the terrorism and foreign collusion offences. The most problematic offence is that of secession.
In prohibiting secession – that is, altering Hong Kong’s legal status or separating the city from China – the National Security Law penalises anyone who “organises, plans, commits or participates… whether or not by force or threat of force” (emphasis added). It goes on to criminalise anyone who “incites, assists in, abets or provides pecuniary or other financial assistance or property” for secession. These provisions are in clear conflict with the free speech protections in both the Johannesburg Principles and the International Covenant on Civil and Political Rights.
Those who champion the National Security Law argue that it still includes human rights safeguards. Article 4 states that “human rights shall be respected and protected” and that rights under the International Covenant on Civil and Political Rights remain valid and applicable. However, the National Security Law enjoys supreme legal status in Hong Kong on a par with the Basic Law, the city’s constitutional text, meaning that National Security Law provisions are immune from judicial review. Hence, local courts lack authority to fix the law even in cases where it is found to excessively limit free speech.
Chinese President XI Jinping and Hong Kong Chief Executive John Lee stand together at a swearing-in ceremony on the 25th anniversary of Hong Kong’s handover from the United Kingdom to the PRC. Press freedom and independent media in Hong Kong have faced increasing challenges since the passing of authority. Credit: Selim Chtayti / Pool / AFP
National Security Law threshold applied in sedition
Hong Kong authorities have also come to rely on the “revived” offence of sedition under the Crimes Ordinance, which was enacted during British colonial rule and had not been used for more than 50 years. The law targets “seditious intention” manifested in various ways, including by uttering words and distributing publications. In addition, the law catches those who “attempt” and “make preparations for” these acts.
“Seditious intention” is defined widely in a string of sub-clauses, which include an intention to “bring into hatred or contempt or to excite disaffection against” the government, to “raise discontent or disaffection” among the public, and to “promote feelings of ill-will and enmity between different classes of the population”.
In a district court judgement delivered in September 2022, Judge Kwok Wai-kin concluded that the offence of secession in the National Security Law can be committed whether or not force or threat of force is used. Further, he said the offence of sedition, which usually occurs as a prelude to secession, does not require the use or threat force.
Judge Kwok substantiated his argument by stating that the world has changed and threat of words might be more damaging than violence. This interpretation can easily make free speech a crime:
Violence is not the only means to bring down a government or cripple its running. Spreading rumour, hatred and disinformation is clearly a readily available and may even be a more effective weapon without the need to incite people to violence. Since the common law is always developing, there is no reason now to stick to the Common Law Intention formulated decades ago to make incitement to violence a prerequisite component of a seditious intention.
Such interpretation towards seditious intent may weaken people’s trust in the statutory defences, which waive criminal liability for people who, for example, point out problems with the government “with a view to the remedying of such errors and defects”.
Hong Kong authorities have used both National Security Law offences and sedition to target dissent, and sometimes deploy both against the same defendant. It is important, however, to note that the two have separate origins and contrasting features. The National Security Law is considered to be more specialised, comes with heavier penalties with life imprisonment as the maximum penalty, and is potentially trickier for the prosecution to prove in court. Sedition is seen as having a broader scope and a lower threshold for laying charges, but comes with comparatively lighter punishments. People convicted of sedition for the first time can be jailed for up to two years and fined HK$5,000.
“Hong Kong authorities have used both National Security Law offences and sedition to target dissent, and sometimes deploy both against the same defendant.”
Slogans criminalised by National Security Law
Even though many national security cases have yet to complete their legal process, the handful of concluded trials have already had a profound effect on Hong Kong’s political climate and narrowed the room for free speech.
In HKSAR v Tong Ying Kit, Hong Kong’s first-ever national security trial, former restaurant worker Tong was accused of driving a motorcycle with a flag bearing the protest slogan “光復香港, 時代革命” (“Liberate Hong Kong, revolution of our times”), which crashed into police officers. He was convicted of inciting secession and terrorism, and in July 2021 was sentenced to nine years in jail.
The three judges, who were among a pool of jurists chosen by Hong Kong’s leader to hear national security cases, approached the issue of secession in two stages. First, they had to determine whether the slogan was capable of bearing a secessionist meaning. If the answer was yes, they next had to decide whether Tong intended to use that slogan to convey a secessionist meaning.
The “Liberate Hong Kong” slogan was created by pro-independence activist Edward Leung Tin-kei for his 2016 Legislative Council election campaign, and became widely adopted in the 2019 citywide democracy protest. On the first point, the government’s position was that the “Liberate Hong Kong” slogan connoted Hong Kong independence, separatism, altering the legal status of Hong Kong or subverting state power. After hearing expert evidence from three academics, the judges sided with the government.
The court then analysed Tong’s behaviour, saying that he planned to “attract public attention” and leave a strong impression. As Tong did not testify, the judges inferred his motive from factors such as the prominent placement of the flag, his driving route, chat logs between him and a friend, and his decision to ride past multiple police checkpoints. The judges concluded:
We are sure that, as evidenced by the convoluted route he chose, the defendant was out there deliberately displaying the flag. We are also sure that the defendant fully understood the slogan to bear the meaning of Hong Kong Independence and by displaying, in the manner he did, the flag bearing the slogan, the defendant intended to convey the secessionist meaning of the slogan as understood by him to others and he intended to incite others to commit acts separating [Hong Kong] from [China].
Legal scholars Thomas Kellogg and Eric Lai have criticised the court’s reasoning as “remarkably weak” in assessing Tong’s intent. “The court was unable to demonstrate any particular specific effort by Tong to spur others to any specific action, much less acts of secessionary violence,” they wrote in a research paper. “Tong was engaged in provocative political sloganeering, which, by itself, should not be criminally actionable.”
Following Tong’s case, the “Liberate Hong Kong” slogan has all but vanished from Hong Kong’s public discourse both online and offline. The case also set a precedent for local courts to extend the slogan’s interpretation to other cases, such as Hong Kong’s second national security trial, HKSAR v Ma Chun Man.
“The government’s position was that the “Liberate Hong Kong” slogan connoted Hong Kong independence, separatism, altering the legal status of Hong Kong or subverting state power.”
Former food-delivery worker Ma Chun Man was nicknamed “Captain America 2.0” as he carried a replica of the comic book character’s shield at protest rallies. Prosecutors said that, on 20 separate occasions, Ma incited secession by chanting slogans, displaying placards and taking part in interviews with the media at public rallies. Ma was accused of using slogans such as “Liberate Hong Kong, revolution of our times”, “Hong Kong independence, the only way out”, and other slogans promoting nation-building and armed resistance. His lawyers argued that Ma had no public following and his antics drew little attention.
Neither public following nor the possible impact the slogans concerned the judges. They ruled that Ma “seemed to believe he had a political mission” to promote Hong Kong independence, adding that his criminal intent was “clear for all to see”. One judge wrote:
The defendant believed his own words, and sincerely hoped that Hong Kongers should not be hypocritical or selfish, and instead work together to promote independence and foster the next revolution, in order to build a Hong Kong republic and to seize sovereignty from China. The court believes that such a clear political stance leads to a belief beyond doubt that the defendant had the intent to incite secession and the requisite criminal act. In 20 incidents within three months of 2020, the defendant repeatedly and unreservedly incited and promoted matters banned under NSL Article 20 (1) and (2), namely separating Hong Kong from China and unlawfully altering Hong Kong’s legal status.
Ma was sentenced to five years and nine months in prison, though the penalty was later reduced to five years. His case was legally significant as – unlike Tong’s case – it involved no element of violence. The judgement in Ma’s case reinforced the public perception that pro-independence slogans, which were part of the life of Hong Kong people not long before the judgement was made, were taboo per se and could not be expressed in public. As legal scholars Thomas Kellogg and Eric Lai pointed out in another article: “(Ma’s) imprisonment will serve as a signal of free speech’s end in Hong Kong.”
Pro-democracy activists hold a yellow umbrella and flags that read "Free Hong Kong, Revolution Now" outside a train station in Shinjuku district of Tokyo on June 4, 2022, to mark the 33rd anniversary of the 1989 Tiananmen Square crackdown in Beijing. Tong Ying Kit was sentenced to nine years imprisonment after being accused of driving a motorcycle into police officers while bearing this flag. Credit: Philip Fong / AFP
“Since the national security police unit was established, one out of five arrests by its officers was carried out on the grounds of sedition, according to a tally by the South China Morning Post.”
Non-violent protesters deemed seditious
Hong Kong courts have demonstrated their willingness to criminalise non-violent protest of various kinds. As well as in trials under the National Security Law, this can be seen in the recent spate of sedition trials, in which the authorities take advantage of the colonial-era law’s wider ambit and lower the threshold for conviction. Since the national security police unit was established, one out of five arrests by its officers was carried out on the grounds of sedition, according to a tally by the South China Morning Post.
HKSAR v Tam Tak Chi was the first sedition case prosecuted after Hong Kong was handed over to Beijing in 1997. It is also the first such prosecution in more than half a century under a law that had not been used since 1967. In March 2022, Tam Tak-Chi, a long-time activist and radio host known as “Fast Beat”, was sentenced to 21 months in jail on seven counts of sedition, among other convictions.
For decades, it has been common for Hong Kong political figures to campaign on the streets, setting up booths and handing out flyers, and Tam was no exception. Prosecutors accused him of chanting provocative phrases, including the “Liberate Hong Kong” slogan as well as insults against the police and the Chinese Communist Party.
In his judgement District Court Judge Stanley Chan Kwong-chi upheld the constitutionality of the sedition offence and said Tam was a man of “political ambition and calculation”. Analysing words uttered by Tam on two occasions in July 2020, the judge said:
[Tam’s] motives are clear for all to see. The defendant clearly had a seditious intent, and did his utmost to inflame others’ disdain and resistance toward the police, the government and the National Security Law. [...] This is a serious betrayal of the so-called freedom of speech that the Defendant purported to champion.
The judge further implied that Tam’s criticism of the Hong Kong government was an attack on the central government.
Chapter Two of the Basic Law states [...] the Hong Kong Special Administrative Region comes directly under the Central People’s Government. The HKSAR government is formed by the Central People’s Government in accordance with China’s constitution and the Basic Law. [...] Even disregarding the words related to the Chinese Communist Party, this court believes that the Defendant still has a seditious intent to attack the HKSAR government. Because the HKSAR government is authorised by the central authorities, this is also an attack on them.
In July 2022, in the case of HKSAR v Koo Sze Yiu, a Hong Kong court jailed a veteran activist with terminal cancer for attempted sedition. The activist was arrested hours before a planned protest against Beijing’s Winter Olympics, having prepared a prop coffin and cloth strips with the words “Down with the Chinese Communist Party, end one-party rule”. Koo was planning to take the protest props to Beijing’s top office in Hong Kong, a location where he had held many rallies previously. The magistrate sentenced Koo to nine months in jail, saying:
Without doubt, the ultimate aim of [Koo’s] words was to change or even overthrow the arrangement in China’s constitution. This can be seen clearly from the words “Down with” and “end”. He was not just criticising or expressing dissatisfaction. [...] Looking back on the past few years, there were a series of large-scale incidents of collective lawbreaking, and there were feelings of discontent among the public. During those events, many people directed blame toward the Chinese Communist Party, and despite the movement ending, many have not yet recovered emotionally. Putting out such messages in this environment will once again provoke feelings of discontent.
“The activist was arrested hours before a planned protest against Beijing’s Winter Olympics, having prepared a prop coffin and cloth strips with the words “Down with the Chinese Communist Party, end one-party rule”.
Opposing government policy ends in jail
Ordinary Hong Kong residents expressing their political views have also been prosecuted under the sedition law. In HKSAR v Cho Suet-sum Chloe and Wong Chun-wai, the two defendants were a 45-year-old woman and a 17-year-old boy. They were arrested after handing out leaflets with phrases such as “Hong Kong independence”, “Resist communist ideology” and “Hong Kongers, build an army and establish a state”.
Prosecutors only went as far as to establish that the duo designed the leaflets and distributed them in and around a shopping mall. Nevertheless, the judge concluded that Cho had an intention to incite others to use violence:
[The defendants] must be well aware that the Central People’s Government and the HKSAR Government would not allow the independence of Hong Kong to occur, and they therefore incited Hong Kong people to build an army so that their goal of independence could be attained through the use of violence. If independence of Hong Kong were to be achieved by the use of violence, especially through fighting between armed forces, it can be predicted with absolute certainty that bloodshed would result. [...] [The defendants] envisaged bloodshed to occur but it was unavoidable for the sake of achieving independence.
The judge added that handing out the leaflets was “clearly an act in defiance” of the National Security Law:
Building an army to achieve independence of Hong Kong was clearly a measure directed at the NSL, and calling people of Hong Kong to build an army to achieve independence was clearly an incitement to people to take the law into their own hands, which would involve nothing short of unlawful actual violence.
In January 2022, Cho was sentenced to jail for 13-and-a-half months, while Wong was sent to a rehabilitation centre.
Some of the sedition cases cited above involved people voicing challenges against the foundation of Hong Kong’s political order: disputing Hong Kong’s status as a Chinese special administrative region, the supremacy of Chinese Communist Party leadership and so on. But it is also possible to be convicted for sedition – which in the eyes of the court is a de facto national security offence – merely by opposing government policy and urging non-compliance with local laws.
In June 2022, Lam Yuen-yi and Hau Wing-yan, who together operated a beverage store, pleaded guilty to “doing acts with seditious intention” and were sentenced to six and seven months in jail respectively. Prosecutors said they posted items on Facebook and Instagram urging others not to get vaccinated against the coronavirus, to falsely declare side effects of vaccination, not to install the government’s contact-tracing mobile app, not to get tested for the virus and to spread the virus to political opponents.
In sentencing, the judge said that the political turmoil in recent years had caused a “lack of mutual trust among individuals and groups, which created polarisation, enmity and hatred”. The public was fearful of the coronavirus and many had doubts about the efficacy of the vaccine. The overall circumstances made it a “golden opportunity” for those looking to spread seditious messages and they had to be deterred, the judge said.
Radio presenter and People’s Power vice chair Tam Tak-Chi, also known as ‘Fast Beat’, speaks to the media outside of the US Consulate General in Hong Kong in 2020. In March 2022, Tam was sentenced to 21 months imprisonment in Hong Kong’s first sedition trial since the 1997 handover (Credit: Marc Fernandez / NurPhoto / NurPhoto via AFP)
Presumption against bail
Under the National Security Law, Hong Kong courts have found an effective tool to control what a defendant says before trial has even begun – bail conditions. The case of the democrats’ “informal primary” illustrates this point.
On January 6, 2021, Hong Kong was shocked by the mass arrest of 53 democracy activists under the National Security Law. Prosecutors later charged 47 of them with conspiracy to commit subversion, accusing them of being involved in an unofficial primary within their own camp to find candidates for the Legislative Council election slated for 2020. Eighteen months after their initial arrest, the case is still at the pre-trial stage, with 34 of the defendants remanded in custody.
Before the National Security Law was enacted, Hong Kong courts, which follow the common law tradition, had long upheld the presumption of bail. It means that when a prosecutor wishes to keep a suspect in detention before trial, the burden is on the government to prove why this is necessary.
The opposite is true in national security cases, in which the traditional burden of proof is reversed. The National Security Law states explicitly that a defendant cannot get bail unless they can convince the judge they will not continue to endanger national security. This was decided by the Court of Final Appeal in HKSAR v Lai Chee Ying in February 2021. Apple Daily founder Jimmy Lai was one of the first people to be charged under the National Security Law, and while his substantive case has yet to go to trial, he has contested the issue of his pre-trial detention, resulting in an appeal that went – unsuccessfully – all the way to Hong Kong’s highest court.
In HKSAR v Ng Hau Yi Sidney, decided in December 2021, the Court of Final Appeal rejected the application for leave to appeal and went one step further to raise the threshold for bail in sedition cases as well. A majority of defendants in national security cases — regardless of whether they are charged with a National Security Law offence or with sedition — were held in pre-trial detention, sometimes for months on end.
When deciding the issue of bail, judges often put weight on the defendants’ remarks during their previous political activities, such as election forums and press conferences, as well as attendance at street booths. For example, activist Frankie Fung Tat-chun was denied bail in November 2021 because he allegedly said, at an election forum, that the Chinese Communist Party was the “common enemy” of the pro-democracy camp and also called for international sanctions against China. The judge ruled in HKSAR v Fung Tat Chun Frankie that his comments went beyond “election rhetoric” and demonstrated the strength of his political convictions, which meant he would pose a national security risk if released on bail.
The 13 out of the 47 defendants who were granted bail must abide by stringent conditions that, in many cases, amounted to a de facto gag order. Emilia Wong, the girlfriend of one of the defendants, once described it as “social death”. She suggested that despite regaining their physical freedom, those who were let out on bail were excluded from the public sphere. For example, the bail conditions in HKSAR v Wong Ji Yuet issued in December 2021 included a) refraining from directly or indirectly publishing, sharing, or forwarding any commentary that may endanger national security, b) steering clear of elections of any kind, and c) avoiding contact with any foreign officials, lawmakers and their staff.
The impact of National Security Law bail conditions on free expression is perhaps best shown in HKSAR v Chow Ka Shing, the case of one of the 47 democrats charged in the subversion case. Chow had his bail revoked in January 2022 after he was found to have made comments that endangered national security, contrary to his bail conditions. While there is no official confirmation of what landed him in trouble, media reports say it was probably his political commentary on Facebook, which took aim at high-ranking government officials and was often sarcastic in tone.
Clarisse Yeung speaks to the media outside West Kowloon court in Hong Kong on March 5 following the mass bail hearing of 47 pro-democracy activists. Yeung was one of 13 released on bail for the charge of conspiring to ‘commit subversion’ and is subject to stringent bail conditions. Credit: Isaac Lawrence / AFP
The list of security-related cases grows
According to publicly available information, 117 people and five companies were facing national-security-related charges as of mid-September 2022. Among them, 10 cases involving 84 people and four companies have been prosecuted under the National Security Law. Another 17 cases involving 33 people and four companies face sedition charges. They include two cases involving both National Security Law offences and sedition.
The number of people prosecuted in this two-year period is disturbing. Worse still, most have been kept in custody for up to a year-and-a-half before they come to trial. Chris Ng, a defence counsel, worried that the lengthy custody may wear down a defendant’s will to mount a defence. In fact, 29 out of 47 defendants in the democrats’ “informal primary” case are believed to be likely to plead guilty.
Ng said that some defendants in other cases may plead guilty simply because the time they have been detained is almost the maximum penalty under the charges they face. This is more likely in sedition cases, which carry a maximum jail term of two years. Despite the large number of cases, judicial proceedings have been completed in only seven cases involving 14 defendants. This means that just 13 percent of defendants have received a judicial ruling.
The rulings related to the National Security Law so far have come largely from middle-ranking courts. Defendants may launch appeals to argue their cases in higher courts, but given the judgements handed down so far by judges handpicked by the chief executive and the number of defendants who intend to plead guilty, it is not at all certain that those facing prosecution can have much faith in the appeal process.