Legal professionals were quick to comment on the first trial to be held under Hong Kong’s new National Security Law. But the law and the trial were not meant only for lawyers and judges and those trained in the Western common law tradition, or even those trained in other traditions.
The trial itself, in July 2021, and the preliminaries that continued for a year beforehand, combined in the form of a political event, staged in full public view for all to see. It was conducted especially for the benefit of ordinary players on the Hong Kong political scene — prospective election candidates, voters, activists and onlookers, demonstrators and sometime participants, and the general public.
The case was meant to teach everyone a lesson by introducing them to Hong Kong’s new mainland-style political definitions and standards of law enforcement. It was also meant to show what can happen to ordinary individuals who fail to comply.
Tong Ying-kit, now 24, was a restaurant worker and a political activist in his own way, apparently without political affiliation. He owned a motorcycle and on July First last year, 2020, rode his bike along several well-traveled roads on Hong Kong Island. He also drove through a number of police check points, and finally came to a stop by ramming into one of them injuring three officers as well as himself.
July First is a public holiday here, and the anniversary of Hong Kong’s July 1, 1997, transfer from British to Chinese rule. Timed to coincide with that historic date, Hong Kong’s new National Security Law (NSL) had just been imposed by Beijing a few hours before Tong’s cross-town bike ride. The law was promulgated close to midnight on June 30, in Beijing, and went into effect immediately thereafter in Hong Kong.
The traditional July First protest march, held in the same area that Tong traversed, was not permitted in 2020. But Hong Kongers had grown accustomed to defying police bans especially on traditional demonstration days even without the usual organized rally. The spirit of the 2019 anti-government protests lives on in this way and many people had come out to mark the day.
Tong was naturally arrested on the spot. Denied bail, he has been in custody ever since and is now facing nine years behind bars. He also earned his place in local history as the first person to be tried and found guilty of violating the new National Security Law.
Accordingly, he was granted due process with all the solemnity that formal court proceedings can provide. But the elaborate staging could not disguise the fact that his prospects for leniency were doomed from the start. It was a show trial in the new Hong Kong “one-country, two-systems” sense of the term.
Tong was charged with having committed two of the four new national security crimes. These are: subversion, secession, terrorism or political violence, and collusion for political purposes with non-local foreign actors.
The terrorism charge derived from his reckless disregard for the authority and safety of the police. The crime of secession was committed solely by the long black banner he had fixed to his backpack. At full speed, the banner flew out behind him displaying the favourite rallying cry to emerge from Hong Kong’s 2019 protests.
The message on his banner was bilingual, slightly different in Chinese and English. The Chinese said “Reclaim Hong Kong, Revolution of the Times,” which in English became the more dramatic “Liberate Hong Kong, Revolution of Our Times.”
Seeing the banner with its familiar slogan, the holiday crowds cheered him on his way. The traditional July First protest marches had been held at the same time of day and in this same locale since 2003, and his gesture served as a kind of tribute to an era that everyone realized had just come to an end.
The mistranslation of the Chinese phrase guangfu 光復 — from its original meaning of reclaim or restore or literally return of light — had evolved naturally during the course of the 2019 protests. But it only evolved in English.
The Chinese for “liberate” — jiefang 解放 — is a different phrase entirely and didn’t catch on. Both phrases come with weighty historical associations, although “liberate” is the more provocative because it was used for the Chinese Communist Party’s own victory in 1949.
Were it not for that mis-translation from ‘reclaim’ to ‘liberate’, Tong’s lawyers might have been able to build a stronger case in his defence. The slogan had actually been in the making since early 2016, when it was created by localist leader Edward Leung Tin-kei and his friends. He used it as his campaign slogan, in Chinese only, for a special Legislative Council election that helped give him and the localist message a wider audience.
Leung’s promising political career was nevertheless derailed early on; he is now serving a six-year prison sentence for his role in the 2016 Lunar New Year riot. Credit for the English translation belongs to persons unknown who will now probably want to remain anonymous indefinitely. The Hong Kong government declared the slogan illegal on July 2, the day after the National Security Law was imposed and Tong made his fateful journey.
There is much to learn from this trial about the evolving nature of Hong Kong’s judicial administration, especially in relation to the continuing official protestations of judicial independence.
Whether trials that are not security related can remain independent of the mainland political influence being introduced by the NSL remains to be seen. Until now they have served as the guarantor of Hong Kong’s role as an international financial center. But the Tong Ying-kit case suggests that like the 2019 protest slogan, the claim of judicial independence is evolving into something rather different in practice than is conventionally understood by the term.
The lessons were conveyed in four major court rulings. The first issued a year ago, on Aug. 21, 2020, rejected the defendant’s application for release from jail. A second, issued on June 22 this year, rejected on appeal the possibility of a jury trial.
Each ruling was announced via the usual court documents. These are available as usual to all who care to work their way through the intricacies of the official Justice Department website.
Based on the common law principle that presumes a suspect is innocent until proven guilty and should be allowed freedom in the meantime, Tong’s lawyers did their best. They used several arguments. They suggested that the NSL’s article 42 was a “no bail” provision and therefore unconstitutional because it violated Hong Kong’s own Basic Law. This was promulgated by Beijing in 1990 to serve as Hong Kong’s constitution for a least 50 years after 1997.
The Basic law guarantees all the usual rights and freedoms. Its article 87 declares that anyone lawfully arrested “shall be presumed innocent until convicted by the judicial organs.” The failure to grant bail or allow release from jail pending conviction thus violated the presumption of innocence.
Not so, said the court, in its August 21, 2020 ruling. The suggestion that Article 42 of the National Security Law is a “no bail” provision was incorrect because it does allow for release. It’s just that the conditions have been redefined.
The court suggested that in the great majority of cases the conditions for release would be the same with or without the NSL since Hong Kong law also allows for suspects to be denied release under certain circumstances. The court suggested that Tong’s lawyers seek bail for their client in the usual way, so they did, to no avail.
It was not until a few months later — when dozens of others not charged with anything remotely related to violence were also denied bail — that the meaning of NSL Article 42 emerged more fully in practical application.
The conditions were clarified with a series of negatives: no bail if there is no evidence that the suspect is not likely to re-offend. In other words, there needs to be some actual proof to indicate that the offensive behavior will not recur. By then, of course, the court was also looking for reasons to believe the suspects would not abscond to join the growing overseas ranks of Hong Kong’s displaced persons.
Tong’s application for release also challenged the new NSL-mandated practice of designated judges, suggesting it violated the principle of judicial independence. Only judges especially designated by Hong Kong’s Chief Executive, in this case Carrie Lam, are permitted to hear national security cases.
The court dismissed this idea with the usual assurances. Following Article 88 of Hong Kong’s Basic Law, all judges are appointed by the Chief Executive. This is done on the recommendation of an independent commission. In fact, declared the August 21 judgement, “the actual assignment of a judge to hear any particular case remains the sole responsibility of the Judiciary.” And judges are duty bound, under oath, to be completely free of any government influence or interference.
In its judgement issued June 22, 2021, the Court of Appeal upheld the Justice Department’s decision to conduct a non-jury trial in accordance with NSL Article 46.
The defendant’ lawyers had sought a judicial review of the decision mandating a non-jury trial. That application was rejected, but an appeal of that rejection was allowed.
The Court of Appeal held that after promulgation of the NSL, in accordance with its articles 46 and 62, the conventional right to a jury trial for NSL offenses was abrogated. The new mode of trial for such offences is trial by a three-judge panel without a jury.
The complaint, said the court, was essentially that the accused had a constitutional right to a jury trial, as granted by Hong Kong’s Basic Law, article 86, and a non-jury trial deprived him of that right.
The court gave short shrift to the complaint, ruling that the defendant had no such right under the NSL. The law must be understood in light of its special constitutional status and general purpose. The latter is to prevent and suppress acts endangering national security.
Also, the NSL holds that those accused of national security crimes must be assured a fair trial and the accused had not claimed it was not possible to receive a fair trial under the new NSL rules.
The court further held that classified information such as state secrets, confidential intelligence concerning foreign involvement, sensitive materials, or threats to the administration of justice, might be involved. So, it would not be in the public interest to disclose such information during a pre-trial judicial review.
Allowing such a review would also risk more complications and delays thereby violating another provision of NSL, article 42. Accordingly, national security cases are to be handled in a “fair and timely manner so as to effectively prevent, suppress and impose punishment.” In other words, hurry things along and get the job done.
The three designated judges found Tong guilty as charged, the charges being incitement to secession and terrorism.
By reason of the banner, plus the time and place he displayed it, he was judged to have “incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification” by separating Hong Kong from the People’s Republic.
The charge of terrorism entailed “intimidating the public“ in pursuit of his political agenda by jeopardising public safety and causing serious injury to a police constable.
The verdict came with a useful conclusion that showed just how far Hong Kong’s court system is now willing to stretch the principle of judicial deference in order to accommodate the relevant political authority, in this case the new Beijing-imposed NSL
In summation, the judges asserted that given the circumstances of Tong’s bike ride on July 1, 2020, they felt confident in concluding that the words on the banner were “capable of inciting others to commit secession.”
Apparently, no effort was made to produce witnesses to his bike ride in order to ascertain their reaction and whether they actually understood the words of the slogan in such a way.
The judges asserted that “the defendant himself understood the slogan to carry a secessionist meaning,” that is, separating Hong Kong from the People’s Republic.
They also concluded that not only did he understand the slogan in that way but he “intended to communicate the secessionist meaning of the slogan to others and he intended to incite others to commit secession” by separating Hong Kong from China.
Yet the defendant never took the stand to explain himself, nor was any evidence produced to illustrate his previous political activities or associations or communications with others, so as to try and confirm his understanding of the slogan and the nature of his political agenda.
In this respect, the court had been satisfied to consult academic witnesses who discussed the history and significance of the slogan. Chief witness for the prosecution said the slogan definitely carried such a meaning although all three academics agreed that it could convey many different meanings and had done so throughout Chinese history. Their testimony was widely reported in the local press including especially the day-by-day account in Standnews.
No one, however, focused on the distinction between “liberation” and “reclaim” or “restore,” which lay at the heart of the trial and indeed at the heart of the Hong Kong protest movement itself.
Was it a demand for independence, or only for the promises everyone thought had been written by Beijing into the Basic Law itself? And if no one knew what Beijing meant by those promises, and if no one from the central government had ever come forward to explain, why should anyone be blamed for defying Beijing’s ill-defined intent?
The judges seem to have accepted the official meaning of secession and then defined the crime committed to fit the charge.
Tong’s defence counsel began the mitigation hearing by reminding the court that this was the first NSL case. Its details had been widely advertised so the public had been alerted to the consequences of such behaviour. Hence the deterrent effect had already been achieved. A harsh sentence was therefore not necessary.
The court was also reminded that Tong was an upstanding young man with only a five-year middle school education. He lived with his father and sister in a public housing unit and helped support the family with his earnings as a waiter.
But the court could not be distracted from its task and used mainland terminology to express it. During his bike ride Tong had deliberately displayed a slogan that was a general call for the separation of Hong Kong from China.
The slogan in his banner had become popular during the 2019 anti-extradition law protests. The NSL was promulgated due to the national security risks that accelerated during that time because ‘anti-China forces’ were trying to disrupt Hong Kong with advocacies such a Hong Kong independence, self-determination, and election referendums. All of this was calculated to ‘undermine national unity and split the country’.
Consequently, the offence of incitement to secession committed by the defendant was of a serious nature. Under NSL Article 21, the offence warranted a sentence of imprisonment of not less than five years but not more than 10 years.
The terrorism sentence followed accordingly. According to NSL, Article 24, a person found guilty of committing the offense of terrorism and causing serious bodily harm, death, or significant property damage must be sentenced to life imprisonment or a fixed minimum term of not less than 10 years.
The judges ultimately conceded that the offence committed was only a general call for the separation of Hong Kong from China without any specific plan. The judges also conceded that the injuries inflicted on the police did not actually rise to the level of “serious bodily injuries.”
Nevertheless, the defendant’s actions were judged to be in the nature of politically motivated terrorism. The judges were confident in their conclusion that the defendant knew he was advocating the separation of Hong Kong from China. Hence his act was also secessionist in nature.
Therefore, he could not go unpunished. Rather than having to serve the sentences for the two crimes separately in succession, however, the judges adjusted punishment to a combined total of nine years imprisonment.
Initially, the critics took comfort in the careful way the bail hearings were conducted. That made no difference to the defendant, but the proceedings continued throughout in the usual way with ample references to common law comparisons and precedents. Later, the court rejected the government prosecutor’s suggestion that mainland standards for mandatory minimum sentences be considered.
But the hopeful mood began to dissipate as the trial wore on and disappeared altogether after the harsh sentence was announced.
In Hong Kong, pro-establishment observers cheered the results as the correct way to restore law and order. Henceforth even key chains bearing the slogan could mean trouble for their owners. This was celebrated as the right and proper way to keep everyone on the political straight and narrow.
Others saw the trial in much darker terms. The designated judges’ “copy-paste” application of mainland definitions for separatism and terrorism emerged as the trial’s most alarming feature. The accused became a passive witness while academic experts debated the historical context of his slogan and prosecutors sought to adapt his actions for use under mainland law.
But was Tong actually an advocate of Hong Kong as an independent city-state? Just because the originator of the slogan gave speeches in 2016 introducing his definitions of the autonomy he thought Hong Kong had been promised, does not necessarily mean Tong Ying-kit in 2020 understood the slogan on his banner in that same way.
Nor could the judges know, as they claimed, that he was actually calling for the separation of Hong Kong from China. Perhaps they saw his failure to testify as an admission of guilt as they defined it?
That his action occurred less than 24 hours after the NSL was promulgated in Beijing also did not signify. Nor did the fact that his action occurred before the slogan was declared illegal in Hong Kong, which then produced the most easily accessible information the public had at that point about the details of the new law.
The judges even mocked his family’s economic difficulties with him the main breadwinner. They said Tong should have considered those circumstances before embarking on his criminal enterprise.
Critics may now look to the appeals process for greater precision and clarity. But if those judges use the same standards as their Court of First Instance colleagues, there is little cause for optimism.
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