The court should take a “remedial interpretation” of the colonial-era sedition law, a Hong Kong barrister has argued, citing a United Nations report saying the law had an “overly broad” interpretation, in the sedition case against five speech therapists over children’s books.
Speech therapists Lorie Lai, Melody Yeung, Sidney Ng, Samuel Chan and Fong Tsz-ho appeared at the District Court for the last day of their trial last Saturday in front of handpicked national security judge Kwok Wai-kin.
The group, charged under the sedition law, allegedly took part in a conspiracy to print, publish, distribute or display three children’s picture books with seditious intention between June 4, 2020, and July 22 last year. They were accused of conspiring to promote separatism and incite hatred against the government by publishing a series of kids’ publications about sheep.
Barrister Anson Wong, representing Ng, cited a report from the United Nations Human Rights Committee report, which said that the sedition legislation had an “overly broad interpretation.”
The report, released at the end of July, urged the Hong Kong government to repeal the national security law and the sedition law.
The barrister said in court that he was not asking the court to repeal the law, but said that Kwok should take a “remedial interpretation” of the legislation. The judge should only convict the defendants if it was proven that they had “an intention to incite violence or to create public disturbance or disorder,” Wong said.
Wong also said that the government’s proposal to amend the Crimes Ordinance to give sedition offences a narrower scope was passed in the Legislative Council just before the city’s Handover from Britain to China on July 1, 1997, but the amendments were never implemented.
Responding to Wong’s arguments, lead prosecutor Laura Ng said that the government had issued a response to the Human Rights Committee report, saying that the committee should have paid attention to the “‘soft resistance’ acts, hate speeches and publications which have radicalised the general public since 2019.”
Constitutionality of sedition law
Barrister Alan Ng, representing Chan, questioned the constitutionality of the sedition provisions.
“It is my submission that the current legislation in its existing format cannot stand the test of the evolving jurisprudence,” Ng said.
The barrister also agreed with Wong’s argument that the court had to believe that the defendants intended to incite violence or create public disturbance to convict them.
The element of truth
Barrister Steven Kwan, representing Fong, was the last defence counsel to give submissions. He argued that adding “the element of truth” to sedition was “very dangerous,” and that it should not be considered by the court as a defence.
“Truth is simply a person’s perception of what the facts are,” said Kwan, who argued that it would be difficult to determine what was truth, and what was opinion.
Kwan also rejected the prosecution’s claim that there were two safeguards for the prosecution of sedition offence.
While the prosecution said that sedition cases were subject to public scrutiny, Kwan said that all types of criminal proceedings were subject to public scrutiny, and “ironically this is the kind of offence that can be tried in close[d]-door.”
The prosecution also argued that the secretary for justice had to consent to prosecutions under the sedition law, to which Kwan said that as head of the Department of Justice, the justice secretary would have to do so for any case, meaning that it “would add no further extra protection” for the defendants charged under the sedition law.
Following the defence counsels’ submissions, Kwok adjourned the case to September 7, when he will hand down a verdict.
Additional reporting: Kelly Ho.