The recent withdrawal of sitting UK Supreme Court judges from their positions as non-permanent judges of the Hong Kong Court of Final Appeal (CFA) caused an apparent debate between the UK government and the Hong Kong Special Administrative Region about the role of the judiciary in Hong Kong and whether the New Security Law (NSL) has compromised the independence of the judges. The Hong Kong legal profession has weighed in, largely on the side of its own judges. The apparent debate is, however, one of those public disputes where the two sides express views that are not necessarily inconsistent.
The British government ministers, Liz Truss and Dominic Raab, have condemned the effect of the promulgation and enforcement of the NSL on general freedoms enjoyed by the press and the people, justifying the resignations of Lords Reed and Hodge as non-permanent judges on the basis that their continuing presence in that office risked lending support to a political administration that was engaged in oppression of free speech, the free press and previously tolerated freedoms of association.
This essay appears in the latest Quadrant.
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It is quite clear that the British position is aimed at the political establishment, not the judiciary or the legal profession. Lord Reed’s official statement on behalf of the Supreme Court makes that point: the judges do not want “to appear to endorse an administration which has departed from the values of political freedom and freedom of expression”.
On the other hand, the reaction of the Secretary for Justice, Teresa Cheng Yeuk-wah, and some members of the legal profession, has been to protest that the NSL has not affected the rule of law or the independence of the judiciary. “The constitutional bedrock upon which our judicial independence is premised will not be shaken. With a strong, robust and professional legal fraternity, our judicial system will continue to remain intact and robust,” claimed Cheng.
Victor Dawes SC, the new Chairman of the Hong Kong Bar Association, said: “The Bar Association does not believe there is any justified concerns about the effect of the New Security Law on the rule of law and judicial independence”, and “our highest court will continue to provide the highest standards of justice to which the Hong Kong has become accustomed”.
Most of the remaining foreign non-permanent judges made statements confirming they would remain on the court. Canada’s Beverly McLachlin is staying because the court is operating as an independent branch of government. The remaining Australian non-permanent judges, Robert French, William Gummow and Murray Gleeson, are staying as a commitment to maintaining the independence of the judiciary.
The Hong Kong legal profession and judiciary are trained in the common law system and take great pride in their independence from the executive. They welcome the presence of non-permanent judges as bringing into Hong Kong more general experience from larger jurisdictions, but they could do well enough without them, and, indeed, there is a lingering element of patronage involved in their presence. To put it in terms used by Professor Hualing Fu of Hong Kong University at a recent webinar, in 1997 at the time of the Handover the non-permanent judges were “the firewood” that fuelled the judicial engine, but now they are more the “icing on the cake”.
In response to earlier resignations by Australian non-permanent judge Jim Spigelman and British Lady Hale, non-permanent judge Lord Sumption complained in the Times in March 2021 that such resignations had nothing to do with judicial independence but were political boycotts, which judges should not engage in. Ultimately, though, the decision as to whether sitting domestic judges preside in foreign courts is not irrelevant to the government’s foreign policy. The non-permanent judges sit in Hong Kong under an arrangement with between the UK government and the People’s Republic of China with the permission of the Communist Party.
Does any of this grandstanding about the judiciary really address the problem for Hong Kong presented by the imposition of the NSL? What has actually been happening in the cases involving NSL charges which to date have passed through the courts? I intend to examine this question by telling the story of the case brought against one protester, Tong Ying-kit, the first person charged under the NSL, who was convicted in July 2021 of incitement to secession and terrorist activities for flying a flag which stated: “Liberate Hong Kong, Revolution in our times”. He was sentenced to nine years in jail.
But first a more general point: judges exercise their independence by applying the law, not by changing it, or reinterpreting it to suit broader political considerations. The old conundrum of positivist legal theory remains: if Adolf Hitler, the elected Chancellor of Germany, manages to have passed through the Reichstag emergency laws empowering him and the government to persecute minorities, is it not the duty of the judges to enforce the law as a democratically legitimate law? The NSL is a statute of People’s Republic of China, passed into law by the National People’s Congress, and made a schedule to the Basic Law as a national law that applies in Hong Kong. The legitimacy of the NSL as a valid law of China is being constantly emphasised by the officials in charge of its administration.
Of course, it might be argued that in the 1930s there was not in existence the efflorescence of human rights treaties and anti-discrimination legislation that now exist, but even then, what if the particular law has constitutional priority? Hong Kong has a Bill of Rights, and a constitution, the Basic Law, which guarantees the usual freedoms and rights valued in Western democracies.
The NSL itself contains a “General Principles” Article 4 which states:
The rights and freedoms, including the freedoms of speech, of press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.
But Article 62 provides: “This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.”
Note the weasel words in Article 4, “as applied to Hong Kong” and “in accordance with the law”. In reality, no matter how much independence the judges enjoy, no matter how imbued they are with the common law tradition, they are tasked to administer the law in accordance with its terms. Those terms inevitably involve taking into account the political fact that Hong Kong is a part of China and subject ultimately to Chinese legislative control.
Under the Basic Law, China’s National People’s Congress (NPC) has the power of ultimate interpretation of both the Basic Law, also a statute of China, and the NSL, and the CFA has in the past referred cases for interpretation to the NPC.
The position of the Bar Association
Upon the retirement of Phillip Dykes SC in 2020 as chairman of the Hong Kong Bar Association, the difficulty of finding a willing replacement was solved by recalling Paul Harris QC who, like the Roman general Cincinnatus, was discovered in retirement in rural England. Upon reappearing in Hong Kong, Harris was publicly critical of the NSL and drew fire from the government-supporting press. Police interviewed him in March this year about his connection to the Hong Kong Human Rights Monitor, which the Beijing press had accused of “colluding with foreign forces” and supporting the extradition bill protests. He left Hong Kong the same day as the interview.
Another barrister sounded out about replacing Harris was Neville Sarony QC. On March 1, responding to comments by Lord Hague to the effect that the Hong Kong judiciary could not be independent under the current regime, Sarony published a defence of the judiciary in the Hong Kong Economic Journal, asserting that the CFA had approached the one NSL case it had dealt with “in accordance with the common law principles of interpretation”. We shall see below what effect that had. Sarony also wrote:
There are two parallel systems of law now operating in Hong Kong, the pre-existing liberal common law and, like a narrow slice in a rich cake, the National Security Law … The two systems are seriously incompatible and whether or not one agrees with the National Security Law it enjoys the same constitutionality as the common law alongside which it sits … In the event that the central government disagrees with the outcome, it has power under Hong Kong’s constitution to render its own interpretation and overturn the Court’s decision. That may well prove to be a defining moment for any of the judges on the Court of Final Appeal.
Sarony did not stand for election as chairman of the Bar Association due to concerns that the association’s independence required putting up someone who would be more acceptable to the government. Sarony’s nomination to the Judicial Officers’ Recommendation Commission was rejected by Carrie Lam, the first such rejection, and she sought another nomination, which turned out to be Victor Dawes, the new chairman of the Bar Association.
What are the offences under the NSL?
In order to aid understanding of what follows, it is useful to describe the four new offences created by the NSL.
Secession (Articles 20 and 21) is organising or participating in separating Hong Kong from China, altering Hong Kong’s legal status, or surrendering it to a foreign country. Article 21 makes it an offence to incite anyone to commit secession.
Subversion (Articles 22 and 23) is organising or participating in the overthrowing or undermining the basic system of China, the body of power in Hong Kong or China, or attacking or damaging premises and facilities used by such body of power. Article 23 provides an accessorial offence similar to Article 21.
Terrorist Activities (Articles 24, 25, 26 and 27) is organising or participating in or threatening to commit serious violence, explosion, arson, dissemination of poisons or pathogens, sabotaging infrastructure and public services, or “other dangerous activities which seriously jeopardise public health, safety or security” with an intent to cause grave harm to society with a view to coercing China or Hong Kong, or intimidating the public, in order to pursue a political agenda.
Collusion with a Foreign Country or External Elements to Endanger National Security (Articles 29 and 30), apart from stealing state secrets or spying, includes requesting a foreign country or “an institution, organisation or individual outside the mainland, Hong Kong, and Macao” to wage war on or undermine China or provoke hatred of China.
Some other important provisions are:
No retrospectivity (Article 39) means the law shall apply to acts committed after its coming into force (at 11 p.m. on June 29, 2020).
No bail is available unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security (Article 42).
NSL judges only (Article 44): the Chief Executive designates judges to hear NSL cases, to be appointed for one year. A judge cannot be designated if they have made any statement or behaved in any manner endangering national security.
No jury (Article 46): the Secretary for Justice, a politician, may issue a certificate in NSL cases directing the case shall be tried without a jury but by three judges. Grounds can include protection of state secrets, “involvement of foreign factors” and protection of jurors and their families.
Final interpretation (Article 65), as with the Basic Law, vests the NPC with the power of interpreting the NSL.
The case of Tong Ying-kit
Tong Ying-kit was a twenty-four-year-old restaurant worker. On July 1, 2020, the first day of operation of the NSL, during protests occurring in Central and Wan Chai, he drove his motor bicycle through several police checkpoints, finally ramming into three policemen at a checkpoint and falling off his motor bicycle, after which he was arrested.
At the time he had thrust into his backpack a black flag which visibly stated, in white lettering, in English and Cantonese, “Liberate Hong Kong. Revolution in Our Times”. The incident can be viewed on YouTube at youtube.com/watch?v=Rml9k4EV-lU.
Two days later he was the first person to be charged under the NSL, with inciting other persons to commit secession or undermining national unification by separating Hong Kong from China. He was also charged with committing terrorist activities causing or intended to cause grave harm to society with a view to coercing China or Hong Kong or intimidating the public, in order to pursue a political agenda.
Tong Ying-kit was denied bail under Article 42. His lawyers challenged Article 42 as unconstitutional as overriding the existing bail provisions in the Criminal Procedure Ordinance and being inconsistent with the rights and freedoms under the Basic Law. They also challenged the designation of the magistrate as an NSL judge by the Chief Executive as an interference with judicial independence.
The Court of First Instance dismissed these arguments. They applied a common law “purposive and contextual approach” to interpreting Article 42. They said it was important to construe the Article in accordance with the protection of fundamental rights under the Basic Law and Article 5 of the Bill of Rights and indeed the requirement to respect such rights and the presumption of innocence included in the NSL, to all of which they said the courts should give a generous interpretation. In that context Article 42 is an extra provision applying to NSL cases which adds a reason for denying bail and does not assume the guilt of the accused. Article 42 was not a prohibition against bail, they found, and left a substantial role to judges to determine bail in NSL cases, thereby not being objectionable as overriding fundamental rights.
The prosecution took the first available opportunity to argue that the court had no jurisdiction to determine whether the NSL was unconstitutional or inconsistent with the Basic Law because that power lay with the mainland authorities. The prosecution also argued that common law construction technique should not be deployed by the court in construing the NSL because it was an act of the NPC under the civil system of law applying on the mainland. The judges nonetheless proceeded to apply common law technique to the questions raised, fortified by the fact that the CFA’s practice has been to construe the Basic Law using common law technique.
It is significant, though, that these submissions were made by the representatives of the administration that had promised for weeks before the commencement of the NSL that it would not interfere with the common law legal system in Hong Kong.
In relation to judicial independence, the judges drew a distinction between appointing NSL judges and the allocation of cases to them which remained an internal process of the courts and the sole responsibility of the judiciary. They found no basis for finding that the administration was in a position to interfere with the liberty of judges in adjudicating individual disputes and in upholding the law and values of the Basic Law.
Using the common law test applied to cases of apparent bias the judges said that “we do not believe that a reasonable, fair-minded and well-informed observer would think that [NSL] judges are, or may be, no longer independent of the Government”. The limited term of appointment as an NSL judge did not affect the judge’s general tenure under the Basic Law, only the role of sitting on NSL cases. The judges did not think that the one-year term subconsciously pressured NSL judges, because that assumed appointment to the list was advantageous, which they said it was not.
Three judges of the Court of First Instance ruled on the admissibility of an expert report written by a professor at Lignan University in Hong Kong on the meaning of “Liberate Hong Kong, Revolution of Our Times”. They permitted this opinion evidence as relevant to assist the court to understand the meaning of the words viewed in the context in which they had been used in Hong Kong since 2016.
The admission of this evidence forced Tong Ying-kit to obtain his own expert report on the question from two professors at the University of Hong Kong. This proved forensically futile for Tong Ying-kit at trial, as will be seen below.
The case of Jimmy Lai
In the meantime, the denial of bail to the owner of Next Digital, the publisher of the (now defunct) Apple Daily newspaper, Jimmy Lai, arrested in June 2021, had reached the Court of Final Appeal. This gave Hong Kong’s final court the opportunity to consider the arguments against the constitutionality of the NSL.
In 2020 Jimmy Lai was charged with four counts of organising an unauthorised assembly or participating in one during 2019 and 2020, that is, before 1 July 2020, when the NSL commenced, and he was granted bail. He was also charged, with two Apple Daily associates, with a count of fraud relating to the Apple Daily lease of premises in Tseng Kwan O. The Chief Magistrate refused bail for these offences. Lai sought a review.
The fraud charge had all the odour of “bribery” and “fraud” charges regularly laid against businessmen in mainland China for political reasons. The allegation was that Apple Daily had failed to disclose to its landlord the use of a small part of the premises by a secretarial company. Justice Lee pointed out several factual weaknesses in the prosecution case at the bail hearing. Yet it was suspicion of this comparatively insignificant offence that was the sole basis for arresting Lai and raiding the Next Digital offices in August 2020, during which 200 police searched the premises and took away mobile phones, computers and news materials being prepared for publication.
As his bail application for the fraud count approached, Lai was also charged under Article 29 of the NSL with “colluding with foreign forces or external elements to endanger national security”. This meant that the bail hearing dealt with both charges, one to which Article 42 applied. It would be difficult not to suspect that the timing of this meretricious NSL charge was deliberate.
The charge was that between July 1 and December 1, 2020, Lai had requested foreign entities to impose sanctions on Hong Kong and China. The prosecution offered as evidence two interviews given by Lai in July and August 2020. The judge commented:
Suffice to say that the statements in question on their face appear to be comments and criticisms rather than requests, albeit one might find those views disagreeable or even offensive. Upon enquiry by the court, Mr Chau says the prosecution case is that, based on all the background materials, it can be inferred that the statements in question are requests in disguise.
Finding the merits of the prosecution cases weak, and there being a clear case for bail on the fraud charge, Justice Lee had to deal with Article 42, which he interpreted to mean that bail could be granted in an NSL case if there are sufficient grounds to believe the accused will not commit acts endangering national security if bail is granted. As Lai offered undertakings not to leave his residence or engage in any activity that could amount to collusion, Justice Lee granted bail.
The prosecution appealed to the Court of Final Appeal. The appeal gave Hong Kong’s highest court the opportunity to give binding guidance on the interpretation of the NSL.
The CFA interpreted Article 42 in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis upon which the NSL is applied in Hong Kong, a respectable purposive common law approach. The court recognised that the Hong Kong had historically failed to fulfil the requirement in Article 23 of the Basic Law to enact its own national security legislation, and that, following the prolonged disturbance to public order and challenges to the authority of Hong Kong and China in 2019 and 2020, the NPC promulgated the NSL as a law of Hong Kong to protect the “One country, two systems” regime. This in turn required reference to the “Explanations” of the NSL tabled in the NPC, which stated:
since the onset of Hong Kong’s “legislative amendment turmoil” in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as “Hong Kong independence”, “self-determination” and “referendum”, and engaged in activities to undermine national unity and split the country … Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs. They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-government organisations.
The NPC asserted that the NSL would not infringe the property rights and freedoms of, importantly, “the vast majority of Hong Kong residents” or the “legitimate rights and interests of any Hong Kong resident”. The legal system was not ignored in this reasoning, because the NPC had to “formulate relevant laws on establishing and improving the legal system and enforcement mechanisms” for Hong Kong.
The Explanations do not mention any need to protect Hong Kong’s considerable political autonomy established by the Basic Law. The NSL is intended to reduce that autonomy, for example, by imposing an Office for Safeguarding National Security of China in Hong Kong, the activities of which are immune from Hong Kong law.
In the Jimmy Lai case before the CFA, the government once again took the position that the court did not have the jurisdiction to hold any NSL provisions to be unconstitutional or incompatible with the Basic Law or even the International Covenant on Civil and Political Rights. Jimmy Lai’s counsel argued that was not his challenge, but rather that the common law principle of legality required the NSL not be interpreted so as to infringe the presumption of innocence or right to liberty expressly protected by the Basic Law and the NSL, and that placing a burden on the accused to justify bail was such a derogation of rights.
But the CFA decided that the challenge was to the constitutionality of the NSL and such a review of an act of the NPC was not permitted in accordance with the CFA’s own previous approach. That did not prevent the court construing Article 42, using the usual common law principles, “taking into account” the rights and freedoms referred to in the Basic Law, the Bill of Rights and the NSL itself as “context”. Bail was excluded unless the judge had sufficient grounds for believing that the accused would not commit acts endangering national security. The CFA pointed to decisions in other jurisdictions where statutory provisions have placed a burden of proof on an accused as to why bail should be afforded, including the Australian section 15AA of the Crimes Act 1914.
The accused thus must prove a negative—that he or she will not continue to commit NSL offences. Even though the court refused to interpret the provision in terms of burden of proof, it is hard to imagine who else other than the accused would be adducing evidence to meet that threshold for the court’s “evaluation”.
Tong Ying-kit – denial of trial by jury
On February 5, 2021, Teresa Cheng, the Secretary for Justice, issued a certificate under the NSL directing that Tong Ying-kit be tried without a jury, and by three (NSL) judges of the Court of First Instance. The certificate gave as reasons:
- the protection of personal safety of jurors and their family members, “and/or”
- the real risk that if conducted by a jury the administration of justice would be impaired.
Tong Ying-kit sought judicial review of the decision on grounds of denial of procedural fairness, inadequate reasons and irrationality. Such grounds for judicial review had existed before 1997 and were preserved by the Basic Law.
Before the enactment of the NSL the common law right to a jury trial had been modified by statute in Hong Kong as it had been in many common law jurisdictions. A person charged with an indictable offence could be tried in the Magistrates Court and the District Court by judge alone. In his decision on refusing leave for judicial review application Justice Lee saw these provisions as reducing the right to a jury trial as a choice of venue question left in the hands of the Secretary for Justice.
Justice Lee followed the CFA’s guidance: the NSL had to be construed against the backdrop of the social context of the protests and their disruption of the social order, that there was no power to hold NSL provisions as unconstitutional or incompatible with the Basic Law and that Article 62 meant the NSL prevailed. He found that the Secretary of Justice’s certificate was mandatory and did not require a hearing before it was issued. There was no constitutional right to a jury trial that the certificate procedure offended and any such right would have been abrogated by the NSL anyway.
Justice Lee emphasised the similar reasoning and result of the UK Supreme Court in Re Hutchings Application for Judicial Review concerning similar provisions in the Justice and Security (Northern Ireland) Act 2007 (UK).
The next manoeuvre against Tong Ying-kit was to introduce a new charge into his case by amending the indictment—“causing grievous bodily harm by dangerous driving” as an alternative to the “terrorist activities” charge. Tong Ying-kit resisted this on the basis that he had just been denied a trial by jury on the basis that his case was an NSL case and not a driving case. The court allowed the charge saying that Article 46 did not say that the Secretary of Justice can issue a certificate denying jury trial in cases which concern only NSL charges and the addition of the new charge would not cause any injustice.
It is true that in the normal course the driving charge would probably have been heard by a District Court judge without a jury, but the logic of this decision would apply where a more serious indictable offence was sought to be added to an NSL case, such as murder. The scope of the more stringent provisions of the NSL was now expanded to apply to offences that were not national security offences and where a trial by jury would normally be expected or required.
Denial of trial by jury – the appeal
Tong Ying-kit appealed against his denial of bail. The Court of Appeal adopted “the well-established common law technique of purposive and contextual construction”, as applied by the CFA in the Jimmy Lai case, to Article 46 and rejected the appeal, saying that there had not been a right to jury trial in Hong Kong, only a convention in the Court of First Instance, and that the requirement for a fair trial in the Basic Law did not mean it had to be a jury trial. The judges said: “When the personal safety of jurors or their family members is under threat, it will seriously undermine the integrity of the criminal process. This is where the paramount importance of a fair trial comes into play.”
At the first hearing before Justice Lee, and in the Court of Appeal, no evidence was adduced by the prosecution that there was a real threat to a jury or their family members, even on a confidential basis provided by the security authorities. The Court of Appeal also referred to UK cases where judicial review of the issue of no-jury certificates had been denied.
The quotations relied on from these judgments referred to the decision to issue a certificate involving “evaluation of material that will frequently be of a sensitive nature” not admissible in evidence or where disclosure would be against the public interest, and “it is a decision which the DPP must take according to personal reaction to the material with which he has been presented”. The Hong Kong courts sought no confirmation in Tong Ying-kit’s case that such material existed, nor did the certificate refer to such material.
The three judges gave a unanimous verdict that Tong Ying-kit had incited secession. They applied UK cases as to the meaning of “incitement” in that the accused intended others to commit the offence, whether or not the incitement is addressed to any person in particular and whether or not the incitement has any effect on other persons. What was important was whether the words were naturally and reasonably capable of inciting and encouraging others.
Of interest is how the court dealt with the expert evidence as to the meaning of the slogan on the flag. The police tendered a report attesting to their review of 2177 videos of protest activity between June 2019 and July 2020, and gave evidence that the slogan had been used in 218 out of 389 days in that period. They calculated the “co-occurrence rate” between the use of the slogan and other banners or signs expressing secessionist or subversive sentiments, concluding that the rate had increased from 11 per cent in 2019 to 70 per cent in 2020.
The prosecution’s expert witness gave his opinion that the Chinese characters which translated as “Liberate Hong Kong” meant that Hong Kong was occupied by a foreign enemy ethnic group which was not in legal occupation, such that China is an enemy and Hong Kong does not belong to it. “Revolution of our Times”, he opined, necessarily was directed to changing the regime existing at the time the words are used, meaning the words rejected governance by China.
This combined meaning was the only meaning in modern Chinese because the Chinese language worked by “customary usages” over time, and the meaning did not change merely because different people used the words. The professor gave evidence that the inventor of the whole slogan, one Leung, was the leader of the Hong Kong indigenous group who had used it when campaigning in a by-election in 2016. A quotation in a news article was tendered in evidence from that by-election in which Leung made statements about bringing down the Hong Kong Communist regime. The professor connected this usage to the appearance of the slogan during a protest in 2019 outside the Liaison Office (with the central government) during which the Chinese national emblem was damaged.
The professor also was permitted to comment on the meaning of the police evidence as supporting his opinion that when Tong Ying-kit flew the flag in 2020 he was using the words without any obvious change from the meaning attributed to it by the professor. The professor threw in, for good measure, that according to the conventional usage of the words, the objective they expressed was to be achieved with violence. The professor was permitted to give opinions about matters on which he was not qualified.
Thus Tong Ying-kit was burdened with the attribution to him of the crimes of other people in relation to whom he was deemed to be acting in a continuum, a casting of lots which, one might have thought, was precisely the sort of cultural and political control the pro-democracy protesters were objecting to. The NSL therefore proved to have, at least in this sense, a further retrospective effect.
The experts for Tong Ying-kit pointed out that a single instance of the use of the slogan by Leung in 2016 in conjunction with one campaign statement on behalf of one activist group did not automatically equate with Tong Ying-kit’s use of the slogan. They said that the slogan re-emerged during the anti-extradition bill protests in 2019 in a different political context, in which the slogan had adopted a more diffuse meaning as a catch-all phrase expressing a desire to regain what was lost and the need for fundamental change in Hong Kong.
This was unremarkable evidence given that the Basic Law guaranteed Hong Kong a high degree of autonomy including freedom from extradition to the politicised court system in China. The basic objection to the extradition bill had been that it was seen as a way of undermining that autonomy by establishing extradition to mainland China using a modified procedure that involved political interference. “Hong Kong Independence” in that context had a more specific meaning than outright rejection of the “one country, two systems” arrangement in place since 1997.
The use of the slogan by Tong Ying-kit on July 1, 2020, was in the immediate context of the imposition of the NSL, which was widely seen as China’s reaction to the successful protest against the extradition bill. However, the experts both conceded in cross-examination that the meaning attributed to the slogan by the prosecution could be one of its meanings.
The judges were therefore satisfied the slogan was capable of bearing the secessionist meaning and was capable of inciting others to commit secession. They also found that Tong Ying-kit fully understood the slogan to “bear the meaning of Hong Kong Independence” and in flying it he intended to incite others to commit acts separating Hong Kong from China.
Other non-violent uses of the same slogan have led to jail terms for Ma Chun-man and Tam Tak-chi in November 2021 and March 2022 respectively. In June 2021 twenty policemen arrested a forty-year-old man and charged him with sedition because someone complained about a “Liberate Hong Kong” banner hanging from his unit’s drying rack.
These convictions were not what many had thought was intended. In July 2020, Henry Litton, a retired non-permanent judge, wrote in Pearls and Irritations: “The notion that a young man doing nothing more than waving a banner in the streets could be prosecuted and convicted under this law is absurd, whatever the banner might say.” How wrong he was.
The judges found that Tong Ying-kit mounted a deliberate and serious challenge to the police, and as they were a symbol of law and order, his conduct illustrated an intention to disrupt the maintenance of law and order, thereby rendering citizens to fear for their safety and worry about public security in Hong Kong.
The evidence of the actual physical reaction of the protesters who witnessed Tong Ying-kit evading police roadblocks and flying the flag was to clap and cheer him, and to throw objects at the police—that evidence being used against him as proving his incitement of the protesters. Only one “ordinary citizen” was called (the driver of a car Tong Ying-kit passed) who said he was shocked at what occurred. On that basis the judges found that “law abiding” citizens feared for their safety and were terrified of a breakdown in public security.
The judges found that the flag advocated a political agenda, and that there was intended intimidation which was “targeted against those in the community who did not support the said political agenda, thereby seeking to contain or suppress counter voices. An intimidation to a section of the public was intimidation to the public all the same for a society is made up of individuals and different groups of such individuals.”
In passages such as this, judges seem willing to adopt as judicial fact the agitprop mindset of the framers of the NSL, with its cardboard characters of virtue and evil, and its references to mysterious groupings, such as “foreign forces”, operating like Elizabethan vapours, whose unspecified but threatening activities justify leaning towards banishing political dissent, and indulging in reasoning that involves artificial generalising about societal mechanisms in order to enforce communal thinking and political unity. But whatever else one may say about the reasoning in Tong Ying-kit’s case, the judges overtly adopted common law judicial technique and sought aid from cases around the common law world interpreting national security legislation.
The readiness to interpret the essentially mundane evidence as fitting the menacing but vaguer concepts such as “terrorism” is not necessarily consistent with a common law tradition that is jealous of the freedoms and dignity of the individual accused and the presumptions that traditionally favour his or her position in a criminal trial. This tendency represents an encroachment by the conceptual politics of the People’s Republic into judicial reasoning.
How then is political freedom in Hong Kong being quashed?
If, as this case demonstrates, the independent judiciary is applying common law judicial technique and not accepting the prosecutors’ argument that they have no jurisdiction to interpret the NSL, what is the effective cause of the current considerable restriction on free speech and political dissent in Hong Kong? The cause is largely the administrative steps being taken to quash political opposition, most of which do not emerge from the NSL.
The main feature of recent change in Hong Kong has been the suppression of opportunities for political opposition to the incumbent administration under Carrie Lam. The only elections in Hong Kong conducted by universal suffrage are the district council elections. In November 2019 pro-democracy candidates gained control of seventeen out of eighteen district councils. The mainland media barely reported the election results. But the results caused deep silent concern. China sacked its representative in Hong Kong at the Central Liaison Office, Wang Zhimin, and replaced him with Luo Huining, a Party secretary previously in charge of Qinghai Province, where he pursued tough security measures against the Tibetan minority population, and Shanxi Province, where he was said to have cleaned up the “political ecology”, according to the New York Times.
The Legislative Council elections due in September 2020 were postponed, Carrie Lam citing the Covid-19 pandemic as the reason. While the elections were delayed (they were eventually held in December 2021), the administration:
- introduced the NSL in June 2020;
- arrested fifty-five pro-democracy politicians, including sitting LegCo members and district councillors, for holding unofficial primary elections in January 2021, and, though most were bailed shortly afterwards, in February 2021 forty-seven of them were charged with subversion under the NSL and re-arrested;
- in March 2021 the forty-seven were collectively subjected to a four-day bail hearing in the magistrates court, after which only fifteen were granted bail, the rest remaining in custody without trial;
- between February and April 2021 the election laws were changed to impose “patriotic” qualifications on all candidates for election and public office holders, administered by an Election Committee and a candidate qualification committee to vet proposed candidates, removed district councillors from the LegCo, and reduced directly elected members;
- many pro-democracy politicians, lawyers and activists were separately prosecuted for taking part in unauthorised but peaceful protests during 2019;
- in April 2021 the goosestep was introduced for standard drill and parades for the Police, Correctional Services, Firefighters and Customs and Excise.
A standard technique adopted by the prosecutors was, despite consistently opposing bail, to delay the setting down of charges for trial due to the case never being ready for hearing, causing the many persons denied bail to remain in custody for lengthy periods before trial. Tong Ying-kit was in custody for thirteen months before he was sentenced. Jimmy Lai and others are still awaiting trial on their NSL charges.
The authorities also rediscovered the old colonial sedition offences, enacted in the Crimes Ordinance but not used for many years, and started to use them to prosecute what are in substance national security offences which occurred in protests before July 2020 to which, because of their national security nature, Article 44 judges are to be allocated even though the offences are not in the NSL. This means that offences committed before July 2020 are effectively dealt with as NSL cases and procedural provisions of the NSL have retrospective effect.
Other means used to oppress, over which the judiciary has no control, are the use of surveillance, forced deletion of messages, and seizure and confiscation of property under Implementation Rules made under Article 43 of the NSL by the Chief Executive. These rules permit interception of communications and surveillance without judicial approval, but approval by the Chief Executive on “reasonable grounds”, searches where there “may” be evidence of an offence and to require the answering of questions or provision of information when one is suspected “on reasonable grounds” of having relevant information, seizure and freezing of assets “relating to the commission of an offence”. Search warrants can be issued by a Commissioner of Police where that officer considers it is not reasonably practicable to apply to a magistrate. Only orders for the compulsory provision of information and documents must be made by a judge.
Search and seizure of property are the main reason media organisations have folded, as they cannot operate when their assets are frozen, and their prepared content has been removed by the police. The rules create seventeen separate criminal offences—for example, contravening a freezing notice carries a penalty of seven years in gaol. It is not clear that breaches of the rules by the police would result in the exclusion of evidence at trial.
Information provision orders (referred to in the surviving media as “requests”) are being used to provoke and detain pro-democracy activists. In December 2021, Simon Leung Kam-wai refused to comply with a request sent by the police to the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, deemed by the police to be an agent for foreign entities. Leung was sentenced to three months in jail. He was sentenced just as his nine-month sentence for participating in the banned 2021 Tiananmen Square Massacre vigil was coming to an end. Refusal to comply with data requests under the Implementation Rules is used as evidence on which bail applications are refused under Article 42.
On May 28, Robert Lee SC, speaking at the second National Security Legal Forum organised by the Department of Justice and attended by senior mainland officials responsible for national security in Hong Kong, said that the Implementation Rules were effective and fair because they were based on current investigative measures for serious crimes under the Organised and Serious Crimes Ordinance, in other words, the mere expression of political dissent in Hong Kong is justifiably treated like organised crime. Second, he said there should not be concern about the rules because they are administered in a common law jurisdiction in which the constitutional laws protect freedoms and rights, but we have seen how the lip service paid to these freedoms does not result in any ameliorative or limiting interpretation of the scope of the NSL.
Professor Simon Young, the moderator, sought to emphasise that the rules were not delegated legislation, but a “national law”, and therefore not subject to the usual common law restriction that they cannot operate beyond the scope of the power given to make them in their enabling provision, Article 43. The fact that such an obscure but slippery point was sought to be made at all indicates a defensiveness about how the NSL does not meet the usual expectations of the rule of law and the fair administration of justice.
Of more concern for the future of the common law in Hong Kong was that Lee prefaced his talk on the Implementation Rules by noting that in a “dominated” jurisdiction (meaning a former colony of Britain, not a current one of China) the national security goal is to “interact and dissipate the dominating force in order to achieve true universal values”. True universal values, he said, were ones based on duties, not desires, and true freedom was based on an ordered observation of duties. He said: “Western liberalism is dominating and driven by amoral, ambivalent individual desires.” As a revealing window into how even the common law is seen as a tool of the Communist authorities, Lee professed to interpret the common law as an exception to this hedonistic tendency because it promoted rights based on duties. Freedom of speech, for example, arose from the duty not to defame other people. He did not seem to have been aware that the fundamental thrust of common law principles applied by the courts is that everything is permitted that is not lawfully prohibited by a sovereign democratically elected parliament.
In all these ways the oppression of the Hong Kong community progresses without the need to disregard the niceties of common law judicial technique in Hong Kong. The oppression is fostered by the conscious erosion of political responsibility, resulting recently in that ultimate farcical pantomime of the one-horse election for Chief Executive. These developments are not irrelevant to the future standing of the courts. As Dyson Heydon has written:
One problem is that regimes which are not responsible to an elected legislature or not liable to removal at an election tend to increase their interference with individuals over time … if a perceived duty to obey the law is an ingredient of the rule of law, it is unlikely that that perception will spring up in modern conditions unless the governed give some explicit consent via the ballot box to legal institutions and their operation. Democracy gives those institutions legitimacy.
Matthew White SC is a barrister working in Sydney and Hong Kong.
 Tong Ying-kit v HKSAR  HKCFI 2133
 Chow and Alex Lee JJ
 Articles 4 and 5 of the NSL
 Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211
 HKSAR v Tong Ying-kit  HKCFI 946
 HKSAR v Lai Chee Ling  HKCFI 3161
 HKSAR v Lai Chee Ling  HKCFA 3
 Explanation of a Draft Decision, 22 May 2020
 Explanation of a Draft Decision, 22 May 2020
 Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security, 28 May 2020
 Article 60 NSL
 Ng Ka Ling v Director of Immigration (No 2) (1999) HKCFAR 141
 R v NK  NSWSC 498
 Tong Ying-kit v HKSAR  HKCFI 1397
  NI 801
 HKSAR v Tong Ying-kit  FKCFI 1644
 In addition to Re Hutchings, Shuker’s Application  NIQB 20 and Arthur’s Application  NIQB 75
 HKSAR v Tong Ying-kit  HKCFI 2200
 DPP v Armstrong  Crim LR 379; R v Most (1881) 7 QBD 244; R v M  EWCA Crim 2823
 ‘Ignorance or malice on new security laws for Hong Kong?’, Pearls and Irritations, 27 July 2020
 For example, the case of HKSAR v Tam Tak-chi  HKDC 1153
 ‘What Do We Mean by the Rule of Law?’, Selected Speeches and Papers