“Dangerous Precedent” Set At Hong Kong’s First Trial Under National Security Law

Tong Ying-kit, a twenty-four-year-old who volunteered as a medic during the 2019 protests in Hong Kong, was arrested on the same day the National Security Law (NSL) went into effect for displaying the popular protest slogan “Liberate Hong Kong Revolution of Our Times” and colliding with police officers at a protest while on his motorbike.

He was charged under the NSL, convicted of ‘inciting secession’ and ‘terrorist activities,’ and handed a severe nine-year prison sentence. Using the NSL in this case sets a dangerous precedent for how the law will be applied, said a TrialWatch Fairness report released today.

CFJ’s TrialWatch initiative monitored the proceedings, and this report, by Senior Advocate at the Supreme Court of India and TrialWatch Expert Rebecca Mammen John, comes as the impact of the NSL continues to snowball.  More than 150 people have been arrested since the law went into effect, mainly for speech or political activities. Amnesty International recently announced they were closing their office in Hong Kong due to the threat the NSL posed to their work and at least 35 civil society groups, including some of the largest activist organizations in Hong Kong, disbanded for the same reason. Last month, a 30-year-old activist became the second person to be convicted under the law for shouting slogans – including the same one Tong Ying-kit displayed. The Hong Kong authorities have also recently suggested that they might adopt additional national security legislation to ‘fill gaps’ around the NSL.

The circumstances of the case suggest “the authorities used this first case not to punish serious criminal conduct but as an exemplar to chill speech and conduct by the general public,” said the TrialWatch report.  Even the court said that the defendant’s conduct was not “the worst of its kind,” and yet Tong Ying-kit was given a severe sentence.  As the report concludes, the prosecution appears to have been “opportunistic” and “an abuse of process.”

The report found Tong Ying-kit’s trial violated his rights and assigned the trial a grade of ‘D.’  He was convicted by a panel of judges, all of whom were hand-selected to serve as ‘national security judges’ by Hong Kong’s leader, Carrie Lam.  Under the NSL, these judges (a full list of whom is not publicly available) serve for only one year and can be removed for undefined ‘national security’ reasons.  This violated Tong Ying-kit’s right to an independent and impartial tribunal because these procedures, and the political backdrop, “could certainly give a reasonable observer the impression that the decision-making process in this courtroom was not impartial or independent.” His prosecution and conviction also violated the principle of legality—a rule that is meant to ensure defendants know whether their conduct is criminal or not. In this case, while there were factual disputes about whether Tong Ying-kit intentionally drove into the police or whether it had been an accident caused by police behavior, the court focused on the slogan in finding that Tong Ying-kit had ‘secessionist’ and ‘terrorist’ intent. This was despite the fact that he could not have been expected to know—on the first day the NSL was in effect—that ‘secessionist’ or ‘terrorist’ intent could be inferred based on one among many possible meanings of this common protest slogan, without any evidence showing that he had understood the slogan that way or that it had been understood that way by those who saw it.

“A slogan that simply calls for ‘liberation’ does not constitute incitement to violence, and should not have been the basis for charges,” explained Ms. John.  “Further, political speech should not have been used to hypercharge this incident into a ‘terrorism’ case and invoke the NSL and its heavy punishment.”

Background

While the National Security Law (NSL) gives the Hong Kong Chief Executive the power to designate ‘national security judges,’ there is no public information on the criteria the Executive is using to select these ‘national security judges.’  Further, the NSL provides that designated judges can be removed for statements or acts endangering ‘national security,’ without explaining who can take such a decision or how such a decision would be made.

In this case, Tong Ying-kit was tried by three designated ‘national security judges.’  Further, his trial came against the backdrop of increasing pressure on Hong Kong judges to convict protesters–for instance, state-controlled media cautioned judges against ‘absolving’ protesters.

During the trial, the prosecution argued that Tong Ying-kit had been driving recklessly.  By contrast, the defense argued that a police officer had thrown his police shield at or near the defendant, which had precipitated the crash.  The defense also presented evidence that Tong Ying-kit had been trying to slow down when the collision occurred.

The other focus of the trial was on the meaning of the slogan Tong Ying-kit displayed—a slogan commonly used during the 2019 anti-Extradition Bill protests.  A prosecution witness testified that the slogan could have a violent meaning, but also did not contest that alternative interpretations were possible.  By contrast, a defense expert said the slogan might have connoted ‘reclaiming’ or ‘recovering’ the Hong Kong way of life.  More broadly, defense experts said that the prosecution’s characterization of the slogan was overly rigid and argued that it likely meant multiple things to multiple people.

The court concluded that the question was “not whether the Slogan meant one and only one thing . . . but whether the Slogan, when taken as a whole after considering all the relevant circumstances, was capable of inciting others to commit secession.”  The court went on to find on the crucial question of intent that “as evidenced by the convoluted route he chose [while riding his motorcycle]; the Defendant was out there deliberately displaying the flag.  . . . [T]he Defendant fully understood the Slogan to bear the meaning of Hong Kong Independence and by displaying, in the manner he did, the flag bearing the Slogan, the Defendant intended to convey the secessionist meaning of the Slogan . . . and he intended to incite others to commit acts separating the HKSAR from the PRC.”  The report concludes that “the Court absolved the Prosecution of needing to prove intent; rather, it could be assumed from the underlying conduct, based on a series of inferences.”

On the terrorism charge, the court concluded that Tong Ying-kit had committed ‘serious violence’ because of the collision and that he had sought to challenge police authority. The court again relied on the slogan to find that “we are sure that the Defendant’s intention was to arouse public attention on the agenda of separating the HKSAR from the PRC, which clearly is a political agenda,” and therefore that the requirements of terrorist intent were meant.  With respect to this charge, the report concludes that the Court’s logic “means that any political messaging or motive, even if it is not intended to cause or is expected to actually cause significant violence, coupled with another offense, however ordinary, is now a terrorist offence.”

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