Eric Y. H. Lai & Thomas E. Kellogg
Tong Ying-Kit, a former waiter and pro-democracy protester, stepped into history this week: on Tuesday, he became the first individual convicted under Hong Kong’s year-old National Security Law (NSL). He was found guilty of terrorism and inciting secession by a three-judge panel, and was imprisoned for nine years on Friday.
The verdict in Tong’s case will stand as a landmark for a number of reasons: Tong became the first person to be convicted of a so-called speech crime – a crime in which the act of speech itself is criminalised – in Hong Kong since the 1970s, and is also the first person ever to be convicted of terrorism by the city’s courts.
The facts of the case are well-known. On July 1, 2020, less than 24 hours after the NSL went into effect, Tong took part in the annual pro-democracy protest, marking the anniversary of Hong Kong’s reversion to Chinese sovereignty with calls for democratic reform. He drove his motorcycle at high speeds during the protest, while carrying a banner emblazoned with one of the key slogans from the massive 2019 protest movement: “Liberate Hong Kong, Revolution of Our Times.”
Tong initially evaded police barricades but was eventually stopped. He struck some police officers with his motorcycle while attempting to evade arrest, three of whom were injured. Tong himself suffered an injured leg in the incident.
Tong’s case quickly became one of the first to emerge under the NSL: he was charged with both the NSL crimes of terrorism and inciting secession, and also with “dangerous driving causing grievous bodily harm” under the Road Traffic Ordinance. As his case worked its way through the courts, it was closely watched as a key barometer of human rights and the rule of law in the NSL era.
If Tuesday’s verdict is any indicator, the rule of law in Hong Kong is under severe strain, and the ability of the courts to protect basic human rights is now in deep doubt. Tong was convicted of two extremely serious crimes, and yet no reference was made in the court’s verdict to his basic human rights. In its more than 60-page verdict, the court failed to reconcile its decision with Tong’s right to free speech under Hong Kong’s Basic Law. Instead, the court relied on a series of decades-old common law verdicts to justify its decision, many of which predate the human rights revolution in criminal law jurisprudence.
Overall, the court’s reasoning was narrow and cramped, and highly deferential to the government’s view. On virtually all key points, the court uncritically accepted the prosecution’s arguments, and turned aside those put forward by the defence. Even the pro-government camp will find the court’s verdict a hard one to love: they may cheer the outcome of the case, but they no doubt wish that the court had found more convincing grounds for its key findings.
Take the reasoning on inciting secession. The court found that Tong’s banner was capable of inciting individuals to commit acts of secession against the Hong Kong government. In its finding, the court relied heavily on expert testimony from prosecution witnesses, who argued that the Revolution of Our Times slogan carried a clear pro-independence political message, one that was meant to incite action by those who read it. Tong’s defence lawyers made a compelling argument that the banner was capable of all sorts of different interpretations and certainly contained no direct call for violent separatist action.
And yet, even taking the government’s arguments at face value, under international human rights law – which is directly linked to Hong Kong law through Article 39 of the Basic Law – a mere intent to incite some sort of pro-independence action is not enough. Instead, official international human rights bodies have generally held that speech must contain a direct incitement to violent action, and that there must be a clear nexus between that speech and likely or actual violence, in order for the speaker to be held criminally liable.
In Tong’s case, no one was incited to take violent action after viewing his banner, nor was any such action particularly likely, given the ubiquity of that slogan in Hong Kong for much of 2019 and early 2020.
Under the court’s logic, it now seems that any public utterance or display of the now-forbidden slogans could be punished under the NSL and pre-existing sedition laws. The government has made clear that it seeks a full legal ban on these slogans, and it now has an initial judicial validation of that effort.
Tong’s terrorism conviction rests on similarly shaky legal reasoning. His violent act – that of driving a motorcycle in a reckless manner around police officers and other members of the public – is no doubt criminally actionable: had the court delivered a guilty verdict on the dangerous driving charge, few even in the pro-democratic camp would have disagreed. But there is no evidence to suggest that Tong engaged in the level of planning, or sought to launch the sort of large-scale violent action, that provokes a state of terror, that are the hallmarks of terrorist activity in the modern era, and that are generally required in terrorism prosecutions in other jurisdictions.
In essence, the court defined terrorism downward, to include any act that causes some sort of physical harm and that can be reasonably connected to a political agenda. The court’s verdict sets a dangerous precedent: in the months to come, the government could label any public protest that turns violent – or even one that damages public property – as an act of terrorism, and pursue serious criminal penalties against those involved under the NSL.
Will Tong’s conviction survive on appeal? Just as important, will the broad legal reasoning put forward by the court remain intact? If the Court of Final Appeal offers its imprimatur to the High Court’s embrace of the government’s arguments, then the impact will be immense: if Tong can be found guilty of inciting secession, the dozens of other defendants charged with speech crimes under the NSL have little hope of a more positive outcome.
And if Tong’s terrorism conviction is upheld on appeal, then those charged with other NSL crimes – including the 47 pan-democratic politicians and activists charged with subversion, whose trials are slated to begin as early as the end of this year – will worry that they too will face a judiciary that is all too open to the government’s overly broad readings of the NSL text, and disinclined to make active use of Basic Law human rights provisions.
Whatever Tong’s verdict may mean for other NSL defendants, it is a tragedy for Tong himself. At the age of just 24, he now faces nine years in jail. And whilst his lawyers have said he will appeal, nonetheless the verdict remains a deeply disturbing one. In a very real sense, Tong’s fate is emblematic of the new national security era: like many in Hong Kong, he is at the mercy of incredibly powerful forces beyond his control, and has reason to question whether Hong Kong’s once-vaunted legal system will save him.
Eric Y. H. Lai is the Hong Kong Law Fellow of the Center for Asian Law at Georgetown University in Washington, D.C. Thomas E. Kellogg is the Executive Director of the Center, and also adjunct professor of law at Georgetown University Law Center.
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