Hong Kong activist Tong Ying-kit has been jailed for nine years, after he became the first person to be convicted under the national security law Beijing imposed on the city.

On Friday, in a landmark sentencing for the city four days after he was found guilty of inciting secession and terrorist activities, 24-year-old Tong was handed the custodial jail term by the the High Court. His sentencing marks the end of Hong Kong’s first-ever trial under the sweeping security legislation which was enacted on June 30 last year.

tong motorbike
Photo: Screenshot.

The three justices – Esther Toh, Anthea Pang and Wilson Chan – are among a pool of judges handpicked by Chief Executive Carrie Lam to handle national security cases. Under the security law, offences linked to secession, subversion, collusion with foreign forces and terrorist activities carry a maximum penalty of life imprisonment.

Tong had been detained for over a year since his arrest on July 1, 2020. He was arrested after he drove a motorcycle with a flag reading “Liberate Hong Kong, revolution of our times” into three police officers during a demonstration in Wan Chai.

Tong was sentenced to six and a half years in jail for the incitement to secession charge, while he was slapped with an a eight-year jail term for committing acts of terror.

The court said that, after considering the totality principle, Tong is to serve two and half years of his sentence for the terrorism offence consecutively with the 6.5-year prison term for the first charge. This means the activist will be locked up for a total of nine years.

Tong’s lead defence lawyer Clive Grossman told the press that they will appeal the verdict and sentencing.

Remorse but ‘not guilty’ plea

In handing down the sentence, Madam Justice Toh, on behalf of the judging panel, said Tong had expressed remorse. But because the activist pleaded not guilty, he could not rely on remorse he expressed as a mitigating factor in asking for a reduced sentence: “If he had pleaded guilty, that would have been the greatest manifestation of such remorse,” she said.

Toh went on to say that Tong showed a good character aside from a few minor traffic convictions. Such character, however, was of no mitigation value, the court ruled, as the offences Tong faced in the case were of a serious nature.

anthea pang, esther toh, wilson chan national security judges high court
National security judges Anthea Pang (left), Esther Toh (centre), Wilson Chan (right.) Photo: HKFP Compilation.

The three judges expressed sympathy for Tong’s family members, who may be in a predicament since the convict was the main bread-winner in light of the reportedly poor health of his mother. But the court again dismissed this as a mitigating factor: “[T]hese are matters which the defendant should have thought about before embarking on his criminal acts.”

In the written judgement, the court said Tong’s act of incitement to secession was of a “serious nature” under Article 21 of the national security law. But despite its seriousness, the court deemed what Tong did was “not the worst case of its kind.”

“[T]he defendant committed the offence alone, and that the slogan was a general call for the separation of the HKSAR from the PRC, without an elaborate plan being conveyed to the public at the same time,” the document read.

On Tong’s terrorism charge, the court said his act was “pre-planned,” as shown by a “convoluted route” he took and how he “deliberately challenged” police check lines. Tong’s motorbike was said to be a “lethal weapon” and it was only “fortunate” that the injuries suffered by the policemen were not more serious.

tong trial
Photo: Kelly Ho/HKFP.

The three judges also took into account the “secessionist” nature of the political agenda behind Tong’s terrorist acts: “[I]t is our view that there is an added criminality in that such an agenda seeking to undermine national unification.”

The High Court also imposed a 10-year disqualification order on Tong, which barred him from using a motorcycle during the period. The disqualification period will run concurrently with the term of imprisonment.

After the sentence was handed down, some supporters of Tong shouted: “Heavy armour, [we will] wait for you! Hang in there!” Heavy armour was Tong’s nickname.

‘Inciting’ slogan

Convicting the activist, the court said the slogan – put forward by former localist leader Edward Leung in 2016 and popularised during the 2019 anti-extradition bill protests – was capable of inciting others to commit secession. Tong was said to have an intention to communicate the meaning of separating the HKSAR from China when he displayed the phrase.

protest slogan flag
Demonstrators hold a flag featuring the slogan “Liberate Hong Kong, revolution of our times” during a protest on July 1, 2020. Photo: Studio Incendo.

The court also ruled that the activist had “seriously jeopardised public safety” and had a view to “intimidate the public in order to pursue political agenda” when he failed to stop at multiple police check lines.

On Thursday, defence lawyers urged the three-judge panel to be as lenient as possible in sentencing Tong, whom they described as a “decent young man.” The prosecution said the court could consider “commentaries and legal text” from mainland China. But Toh, Pang and Chan responded by saying they would base the sentencing on the usual statutory interpretations.

tong  trial
Photo: Kelly Ho/HKFP.

Friday’s landmark sentencing may act as a reference for future cases and shine some light on how the city’s courts adopt a tiered prison sentencing under the controversial legislation.

Outside court, dozens of local and international journalists waited at a carpark exit for Tong to leave in a prison van.

Some citizens tried to catch the convict’s departure by standing at a distance from the courthouse inside the nearby Pacific Place mall and the Admiralty Garden. However, they received warnings from police. Officers told them they may be in breach of the Covid-19 gathering restrictions, though one woman who received the warning was standing on the footbridge inside the mall alone.

‘A tool to instil terror’

Amnesty International’s Yamini Mishra said the sentencing “confirms fears that the national security law is not merely a tool to instil terror into government critics in Hong Kong; it is a weapon that will be used to incarcerate them.”

National security law
Photo: GovHK.

“The ruling essentially outlaws a popular slogan widely used by the pro-democracy movement and could enable future convictions of numerous other protestors who used it. This point alone is a deeply ominous sign of what the national security law will bring in the future… “Tong should never have been charged with an offence carrying a potential life sentence.”

The city’s security chief, however, welcomed the sentencing: “First of all, we welcome his conviction. As for his sentencing, we will go back to study the judgement and decide the next course of action.”

In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.

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Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.