Hong Kong’s decades-long reputation for free speech, judicial independence and the rule of law has been dealt a harsh blow with the sentencing of pro-democracy protester Tong Ying-kit. He was sentenced to nine years in prison after being found guilty of committing terrorist acts and inciting secession, by three judges in Hong Kong’s high court.
Tong, 24, is the first person to be indicted and convicted under China’s new National Security Law. He was handed a six and a half-year sentence for the secession charge, and eight for the terrorism charge, but will serve a total of nine years.
The implementation of the law marked a turning point in Hong Kong’s democracy movement. The law is being used to crack down on pro-democracy politicians, journalists and student activists.
This case sets a precedent for how Hong Kong plans to treat those accused of violating the national security law. It is likely that Tong will appeal, and the case will eventually reach a higher court.
On July 1 2020, he was riding a motorbike in the city, holding a flag reading “Liberate Hong Kong, Revolution of Our Times,” in protest of the new law imposed by the Chinese authorities a day prior. He crashed into police officers, injuring three of them.
Despite the assurance of a fair trial, the government repeatedly intervened pre-trial to undermine Tong’s rights, in violation of the rule of law. Judges were handpicked by Hong Kong’s chief executive, Carrie Lam. The secretary of justice, Teresa Cheng, removed Tong’s right to a jury trial. And his bail application was denied, leading to a year of pre-trial detention.
All these arrangements were made under the new norms of the national security law, which has substantially weakened the prospect of a defendant getting a fair trial in the city’s common law system.
The verdict also sets a precedent that the court system will not give consideration to international human rights law under the new law. The verdict does not begin with any human rights analysis or assurance, and fails to explain how Tong’s convictions on two offences are compatible with international human rights standards.
Let’s look first at the charge of inciting secession. Although provisions of the national security law assert that nonviolent activities may be counted as secessionist activities, the court’s verdict failed to prove that the slogan on Tong’s sign was an act of secession itself.
The judges stressed only that the slogan was capable of inciting others to commit secession, disregarding other possible meanings explained by the defence’s expert opinions. The verdict, therefore, demonstrates a departure from a basic common law principle – the burden of proof beyond reasonable doubt.
Even if the numerous meanings of the slogan include promotion of secession, this does not mean that merely displaying it should be criminalised.
The Johannesburg Principles, used by UN human rights experts as a guide to balance national security and free speech, state that no one shall be punished as a threat to national security unless the government can prove that such expression incites imminent violence or has “a direct and immediate connection” between the expression and any violence that happened. Clearly, in Tong’s case, no subsequent and imminent violence occurred after displaying a flag with the popular slogan.
Any restriction on free speech must be based on necessity and proportionality. This principle is reaffirmed in the UN General Comment on Freedom of Opinion and Expression, which serves as an authoritative interpretation of the International Covenant on Civil and Political Rights – which is still applicable in Hong Kong. Tong’s incitement conviction fails to meet this criteria.
As far as the terrorism conviction, the court’s verdict effectively escalated what could be seen as an ordinary crime (reckless driving) to an act of terrorism. Tong’s behaviour may well be punished by existing criminal laws, so a prosecutor ultimately added an alternative charge of dangerous driving causing grievous bodily harm, prior to the trial.
But Tong’s actions do not fit the definition of terrorism as agreed by UN experts. Two months after the passage of the national security law, seven UN experts published an open letter to reinstate the UN Security Council’s definition of a terrorist act that “requires intentionality to cause death or serious bodily harm and the act must be committed to provoke a state of terror”.
The court agreed that “serious bodily harm” was not an element in Tong’s offence, and that the harm caused by his actions was not necessarily physical, but symbolic. Consequently, the verdict stretches the understanding of terrorist act in a manner at odds with legal certainty, a basic principle of the rule of law.
To avoid conflating criminal actions with terrorist acts, the government should use ordinary criminal law as a necessary and appropriate means to regulate and punish individuals who do not meet the standard of terrorist acts. Now it seems the court is going the opposite way.
The verdict has significant implications for free speech and the rule of law in Hong Kong. It sets a precedent for the interpretation of the slogan “Liberate Hong Kong, Revolution of Our Times”. Tong’s case becomes an authoritative source for judges and magistrates to interpret it as a message of a secessionist agenda in dealing with future cases.
A chilling effect in Hong Kong society is therefore unavoidable.
Such interpretive consistency by the establishment will also affect trials in future speech crimes under existing sedition laws, which the government has recently revived by arresting ordinary citizens and prosecuting activists for displaying or uttering slogans regarded as seditious.
Above all, this trial reveals how the rule of law has been decimated by tough new legislation and legal statutes imposed by China – and how an unconvincing verdict can be weaponised to repress political dissent and free speech in Hong Kong.