Hong Kong’s First Sedition Trial in Decades Sets Dangerous Precedent

The first sedition trial in Hong Kong in over five decades violated the defendant’s rights to free speech and a fair trial, a new TrialWatch report has found. Tam Tak-chi, a former opposition politician and radio host, was sentenced to three years and four months in prison for uttering “seditious” words and for organizing and “inciting” others to join “unauthorized” assemblies protesting the National Security Law and police brutality. The trial was given a ‘D’ by TrialWatch Expert Elizabeth Wilmshurst QC, who has worked throughout her career in public international law, including international human rights and international criminal law, formerly working for government and more recently in academic and research institutions

Among the specific words that landed Tam Tak-chi prison time were the political slogan “Liberate Hong Kong, Revolution of our Time” and calling Hong Kong’s new National Security Law “a party security law” that “tramples human rights.”

The UN Human Rights Committee should address the concerns identified in this report in its upcoming review of Hong Kong, as well those identified in prior TrialWatch reporting that highlighted how Hong Kong authorities are applying laws in a manner that violates international human rights protections, including: the trial of Tong Ying-kit, the first case under Hong Kong’s National Security Law, the trial of Jimmy Lai and eight others prominent Hong Kong activists relating to a public protest in 2019, and the trial of journalist Bao Choy for alleged misrepresentations in accessing a government database—all of which were monitored by TrialWatch.

In Tam Tak-chi’s case, Ms. Wilmshurst found the court “applied an outdated, colonial-era ordinance on sedition to a range of political statements which are protected by human rights law.” Ms. Wilmshurst found that the charges under this law raise “concerns under the principle of legality, having regard to the breadth of the statute and lack of foreseeability” as to what statements are covered by the law. This is consistent with broader findings by TrialWatch relating to the misuse of sedition laws around the world, and with previous criticism of Hong Kong’s law by the United Nations Human Rights Committee, which expressed concern at the law’s “broad wording.”

While this was the first sedition case in 53 years, it is unlikely to be the last.  Since Tam Tak-chi’s arrest in 2020, nearly 30 others have been charged with uttering or publishing seditious words. These include five speech therapists who have been charged with “conspiracy to publish seditious materials” for children’s books depicting sheep protecting their community from wolves. It also includes nine journalists and staff from Apple Daily and Stand News, two of the last, now shuttered, sources of independent reporting in Hong Kong.  More recently, six people were arrested for sedition simply for clapping in a courtroom.  Under the law, the maximum penalty for sedition is two years’ imprisonment.

Ms. Wilmshurst’s report also concludes that Tam Tak-chi was denied his right to a fair trial. His case was heard by one of the special ‘national security’ judges chosen by Hong Kong’s Chief Executive on the theory that sedition is a national security offense, despite the fact it is not listed in the National Security Law (NSL). It is unclear what offenses – other than those listed in the NSL and now sedition – qualify as ‘national security offenses’ that can be heard by such specially-designated judges. In line with prior TrialWatch reporting on Hong Kong’s first NSL case, the TrialWatch report on Tam Tak-chi’s case finds that “the use of a specially designated judge under the National Security Law . . . deprived him of the right to an impartial and independent tribunal.”

Finally, the report finds that the trial violated Tam Tak-chi’s rights to freedom of expression and peaceful assembly and “appears to have had the purpose of punishing Tam Tak-chi for his criticism of the authorities.”  In fact, the harshest sentences were imposed for Tam Tak-chi’s alleged role in organizing and encouraging others to join unauthorized protests in violation of Hong Kong’s Public Order Ordinance.  But the UN has previously criticized the Public Order Ordinance—also used to charge and convict the activists whose trial TrialWatch previously monitored—as potentially “facilitat[ing] excessive restriction to the Covenant rights.”

At the same time, the report notes that “[t]hroughout the trial and verdict, there is evidence that the authorities’ concern—including the Court’s—was with Tam Tak-chi’s use of political slogans and speech to criticise the [Chinese Community Party], the police, and the NSL, and to use these slogans and critical comments to convince the public to vote for him.”  The trial appears to have been used “to criminalise participation in the electoral process,” Ms. Wilmshurst explained. Indeed, while in pretrial detention for this case, Tam Tak-chi was also charged under the NSL along with many others for attempting to organize a democratic primary in 2020.

Background:

Tam Tak-chi, now 50, is a former opposition politician and radio host in Hong Kong who has been detained since September 2020. Between January and July 2020, Tam Tak-chi set up booths around Hong Kong where he gave speeches about COVID, police brutality, and the 2020 National Security Law, and called on the public to nominate him to the Legislative Council, Hong Kong’s legislature.

On September 6, 2020, Tam Tak-chi was arrested, detained, and charged with “uttering seditious words” and public order offenses for these speeches and public activities.  At Tam Tak-chi’s arrest, Hong Kong senior superintendent Li Kwai-wah explained that Tam Tak-chi was charged for using words that “brought into hatred and contempt of the government and raised discontent and disaffection among Hong Kong people.”  He was denied bail and remained in pre-trial detention until his trial began.

His trial started in July 2021 but was repeatedly delayed, with the verdict eventually issued on March 2, 2022.  Of the 14 charges against Tam Tak-chi, the Court found him guilty of 11, including 7 counts of “uttering seditious words” and 4 public order offences—organising an unauthorised assembly, inciting others to participate in an unauthorised assembly, disorderly conduct, and refusing to obey a police order. On April 20, 2022, the court sentenced Tam Tak-chi to a total of three years and four months in prison and a fine of HK$5,000 (equivalent to about 650 USD).

The words found to be “seditious” by the Court included the common slogan “Liberate Hong Kong Revolution of our Times”—which was also at the center of Hong Kong’s first National Security Law trial, which TrialWatch also monitored. In the judgment, the Court also listed dozens of other statements Tam Tak-chi made, although it does not analyse them all under the statute.  The statements included:

• “Nominate me, support me to enter the Legislative Council”
• “We all know what our human rights are, we all know that [the police are] making indiscriminate arrests, we’re not breaking the law”;
• “The National Security Law is in fact a party security law, guaranteeing party security but tramples on human rights, freedom, the citizens, jeopardizes the rule of law and wrecks Hong Kong.”

A ‘national security judge,’ designated under the 2020 National Security Law, was appointed for the trial proceedings.

For a full legal analysis of the trial and explanation of the grade that has been provided, please see here.

For TrialWatch’s other reporting on Hong Kong, please see here.