Q&A: What Hong Kong's first national security verdict means
How momentous was this judgment?
On July 27, 2021, the High Court in Hong Kong convicted the first defendant prosecuted under the city’s newly passed national security law, a 24-year-old man brought to trial on charges of inciting secession (in other words, advocating the independence of Hong Kong from China) and engaging in terrorist activities. On July 1, 2020, Tong Ying-kit had ridden his motorcycle through Hong Kong Island with a flag bearing the words: 光復香港 時代革命 (Liberate Hong Kong, Revolution of our times). Some time later on the same day, he crashed the motorcycle into several police officers, resulting in a number of injuries and leading to his arrest. On July 30, Tong was sentenced to nine years in prison for the two offences.
The reasons for verdict and the reasons for sentence provide important detail for observers as to how the courts in Hong Kong will enforce the national security law, so it is timely to examine some of the key questions that have arisen in the handling of this case.
On July 2, 2020, the Hong Kong government made a statement declaring the slogan at the heart of this case to be secessionist. Did the judges in HKSAR v Tong Ying-kit agree with this declaration?
The judges said that they had no difficulty in coming to the conclusion that the slogan was capable of bearing the meaning of separating Hong Kong from China and was capable of inciting others to commit secession. Both the prosecution and the defence called academics as expert witnesses to debate the meaning of the slogan, and the defence’s position was that its meaning was so vague that it could not conclusively be labelled secessionist.
The judges left open the question of whether the slogan could have more than one meaning, saying that this was not the right question to be answered at trial. The question to be answered, they said, was whether the prevailing context at the time of the alleged offences meant that the slogan could be capable of carrying a secessionist meaning. On this question, they answered in the affirmative.
So is the slogan completely banned now, and could someone be sent to jail for years in Hong Kong just for saying it out loud?
In the reasons for the verdict, the judges placed emphasis on the context in which someone displays or utters the slogan, saying that all relevant circumstances must be taken into account. It would be illogical, for example, to conclude that the three academics called upon to give expert evidence during the trial could face criminal liability simply because their testimonies and reports referred to the slogan. Media coverage of the trial also made frequent reference to the slogan and the flag at the centre of the case, with no attempt made to censor the words. This is why some commentators, such as Executive Council member Ronny Tong, have insisted that there are no laws in Hong Kong banning the use of any slogan.
In practice however, while it may be correct to say that the slogan is not banned in all contexts, its main function as a political rallying cry has now been criminalised. The slogan was originally conceived in 2016 and entered into widespread use in subsequent years precisely for this purpose, so the fact that it is now unlawful to use the slogan in this way has the same effect as banning it outright.
The Hong Kong Basic Law protects freedom of expression, but the judgment of the court makes no mention of this protection. Why is this?
Tong’s lawyer did not attempt to argue that secessionist speech is a constitutionally protected form of free expression, so the court was never called upon to examine this question. Had the issue been raised however, it would likely have been dealt with by referring to the Court of Final Appeal’s (CFA) judgment on the bail principles applicable to national security law cases. In February 2021, Hong Kong’s top court elaborated on these principles while deciding whether the bail granted to Apple Daily founder Jimmy Lai in December 2020 was validly granted. Lai has been charged and is awaiting trial for various alleged offences, including conspiring to collude with foreign powers to endanger national security.
On that occasion, the CFA ruled that provisions of the national security law, being part of a piece of national legislation, cannot be struck down by the courts in Hong Kong on the grounds of unconstitutionality. Had Tong’s lawyer attempted to argue that the provisions of the national security law criminalising the incitement of secession were unconstitutional, this argument would almost certainly have been rejected because of the CFA’s earlier judgment.
The national security law itself, specifically Article 4, also mentions that freedom of expression is protected. However, given the court’s emphasis on construing the Basic Law and the national security law as a coherent whole as far as possible, it would likely have been equally difficult to argue in court that the inciting secession offence conflicts with the NSL’s freedom of expression clause. The CFA, in its judgment on bail principles, said that the article in the national security law covering the granting of bail constitutes a valid exception to the general bail regime which prevails in Hong Kong. It is very possible that, had this argument been raised during Tong’s trial, the inciting secession offence would have been deemed valid according to the same reasoning.
Did the judges give any consideration to the fact that the people Tong was convicted of inciting, that is, those who saw him riding his motorcycle on July 1, 2020, were very unlikely to actually force Hong Kong to secede from China?
The national security law does not define incitement. The judges referred to common law precedent in dealing with this question, including an English case in 1999 where it was held that an incitement offence is possible regardless of whether those incited had any intention of actually committing the offence. In other words, once it is proven that a person encouraged someone else to commit a crime, that person can bear criminal liability regardless of whether those who were encouraged actually went on to commit that crime.
In sentencing Tong to 6.5 years of imprisonment for inciting secession, the judges did acknowledge that he had acted alone and he had conveyed only a general call for Hong Kong’s secession from China, rather than an elaborate plan to do so. This acknowledgment was relevant only at sentencing however, and made no difference to the verdict.
After the judgment, some observers made reference to the Johannesburg Principles on National Security, Freedom of Expression and the Access to Information, specifically the principle which states that incitement to violence against national security should only be punishable if the violence is intended to be “imminent” and that the incitement is likely to succeed. What is the attitude of the Hong Kong courts towards these principles?
While the number of judgments relating to Hong Kong’s national security law is still limited, a brief reference was made to the Johannesburg Principles in the written reasons given for refusing bail to another defendant, Ma Chun-man, in December 2020. Ma is also facing a charge of inciting secession for his use of political slogans at various times in 2020.
The judge in that case, while describing the Johannesburg Principles as a useful benchmark, said that they do not belong to any international covenants and are not binding in Hong Kong. The judge further noted that the description of incitement contained in the Principles does not conform with the common law precedents applicable in Hong Kong. This suggests that the courts will continue to follow precedent in defining incitement, which means someone can be guilty of an offence regardless of whether the person(s) incited actually take any action.
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Following the sentencing on July 30, Tong’s lawyer, Clive Grossman, indicated to reporters that his client would appeal both the verdict and sentence.