Hong Kong Rule of Law Update

This newsletter provides a digest of legal developments in Hong Kong. This is our seventh edition, covering March to April 2023.

1. Hong Kong police intimidate rally organizers

Since the onset of the Covid-19 pandemic, the Hong Kong police have consistently banned public gatherings for ‘health’ reasons. In March 2023, the police ostensibly started granting permission for public gatherings again, but the reality is that there remain grossly unacceptable fetters on the freedom of assembly.

In March to April 2023, there were several planned rallies that were ultimately cancelled due to political pressure. The Hong Kong Women Workers’ Association had been due to hold a march on 5 March 2023 to mark International Womens’ Day, and had obtained the necessary approval from the police. However, the night before the protest, the organizers abruptly cancelled the protest without specifying reasons. Meanwhile, the police claimed that some “violent groups” had intended to attend the protest.

Even more shockingly, trade union leader Joe Wong disappeared for hours on 26 April 2023. Wong and fellow union leader Denny To had been planning a march for Labour Day on 1 May 2023. According to To, Wong had an emotional meltdown after meeting the police, then decided to withdraw their application for the march. Although Wong was not under arrest, he was prevented by the National Security Law (“NSL”) secrecy provisions from disclosing any details of his ordeal. Prior to this, both Wong and To had received coordinated harassing messages dissuading them from holding the march.

Since the end of Covid-19 restrictions in Hong Kong, only one protest has been held. However, the police imposed heavy-handed conditions: they ordered participants to wear a numbered tag indicating their participation, required banners to be submitted beforehand for the police’s approval, banned clothing in black or yellow colours, and required marchers to walk within a cordon. Since April 2023, the police have added ‘national security’ conditions to any approval of public meetings. These have extended even to fund-raising events and religious events.

Hong Kong’s legal framework of requiring prior permission from the police for protests has long been criticized for failing to give full effect to the right of freedom of assembly, including by the UN Human Rights Committee. With Covid-19 no longer a useful excuse, the Hong Kong government has shifted to “national security” as their go-to justification for restricting civil rights. Furthermore, the regime has employed onerous restrictions and thug-like tactics to intimidate civil society leaders.

2. Tiananmen activists convicted in a sham trial for refusing to divulge information to police

In another weaponised legal action against the Hong Kong Alliance in Support of Patriotic Democratic Movements in China (which was well-known for  organizing the annual vigils to mark the Tiananmen Square massacre, before being forced to disband in 2021), three members of the group were convicted and sentenced to four and a half months in jail in March 2023 for refusing the police’s order to hand over information about the Alliance’s operations. Chow Hang-tung, a barrister and prominent pro-democracy activist, was amongst the three who were convicted.

This case is an alarming example of a civil society group in Hong Kong being accused of acting as a “foreign agent” but without the prosecution having to disclose who the group is accused of working for.

In August 2021, the police issued a notice under Article 43 of the NSL, requiring the Alliance to disclose extensive information about its funding, activities, and staff. The notice was based on allegations that the Alliance was a “foreign agent”. The police required the Alliance to provide information going back to 2014 and even back to 1989 – i.e. well before the enactment of the NSL.

The defendants argued that the police’s order was illegal because the Alliance was not a “foreign agent”. They asked the police to disclose the identity of the alleged “foreign principal”; however, this was denied by the magistrate who allowed the police to conceal such information to avoid “hindering” the police’s investigations.

Without knowing the identity, it was practically impossible for the defendants to prove that the Alliance was not an agent of the alleged (unnamed) foreign organisation. The court’s ruling stripped away the defendants’ right to a fair trial.

Another disturbing feature of the case is that, despite the NSL supposedly not being retrospective (see Article 66), the magistrate declared that “the concept of national security is…a continuation of series of acts with accumulative and generative aim to an ultimate end”. The court therefore held that there was no obstacle to the police ordering the provision of information dated many years before the enactment of the NSL. This opens up a dangerous back door for the NSL to be applied retrospectively. Retrospective laws undermine the rule of law by unfairly changing the laws relating to certain situations; they are contradictory to the rule of law principle which requires the law is capable of being known to everyone so that everyone can comply.

3. Journalists complain of being stalked while reporting on court cases

Several journalists reported that they were harassed by surveillance from unidentified persons. Some of them were court reporters who covered the Stand News trial. (The non-profit Stand News was raided by police and ultimately forced to shut down its former chief editor is facing prosecution for the publication of 17 allegedly seditious articles.)

According to the Hong Kong Journalists Association (HKJA), the journalists in question worked for different organisations. Reportedly there were two unknown men who loitered outside of the press waiting room. One of them stayed there for over an hour and attempted to pursue the journalists as they left the courtroom.

Within days of that incident, a reporter for Hong Kong Free Press (HKFP) (a leading independent news outlet) was also followed from her home to her workplace for over an hour by two men with earpieces. Despite efforts to get on and off different trains, the two men persisted in tailing the reporter during morning rush hour. When one of the men was confronted and questioned by the reporter, he remained silent under his mask.

The HKJA condemned the harassment and urged the police to clarify whether a law enforcement agent was involved. However, instead of providing clarification, the police simply blasted the HKJA for making “unverified speculations” that “could misguide people”. The police said that any worried journalists should file a police report. The Chief Executive, John Lee, also refused to comment on the incidents and dismissed the complaints as mere “subjective speculations”.

The incidents show a deeply worrying trend that Hong Kong journalists are not only facing arbitrary legal risks under the NSL, but also physical threats where the Hong Kong authorities turn a blind eye and fail to properly investigate them. No journalists should work under fear; and we deplore the Hong Kong authorities’ contemptuous attitude towards press freedom.

4. UN human rights experts call for review of the National Security Law

Numerous UN human rights bodies have expressed serious concerns regarding the NSL in recent months, highlighting the significant impact the law has had on every corner of civil society in Hong Kong.

In February 2023, the UN Committee on Economic, Social and Cultural Rights conducted its periodic review of Hong Kong, which saw Hong Kong government officials defending various aspects of the NSL before the Committee in Geneva and mobilising organisations led by pro-Beijing politicians to submit reports that sang praise about the law. The Committee was (rightly) unpersuaded by these efforts. In its concluding observations released in March 2023, the Committee expressed concern about reports that the NSL has “de facto abolished the independence of the judiciary of Hong Kong” and that civil society actors, journalists, human rights defenders, and lawyers working on human rights have been arrested, detained, and tried without due process. The Committee urged the Hong Kong authorities to review the NSL and recommended the abolishment of the national security hotline, which has been used extensively to report suspected violations to the police.

In March 2023, the UN High Commissioner for Human Rights, Volker Turk, said his office had concerns about the “severe restrictions of civic space”, including the arbitrary detention of human rights defenders and lawyers and the impact of the NSL in Hong Kong. The same month, multiple UN experts jointly sent a communication to the PRC Government raising concerns that legal proceedings against pro-democracy media owner, Jimmy Lai, were in violation of his fundamental rights.

In April 2023, Margaret Satterthwaite, the UN’s special rapporteur on the independence of judges and lawyers, issued a communication to the PRC Government, urging it to conduct a “review and reconsideration” of the NSL to ensure it is “in compliance with China’s international human rights obligations.” Satterthwaite cited numerous examples on how the law and other recent government actions have affected the independence of the judiciary, the ability of lawyers to exercise their profession independently, and the due process guarantees of the right to a fair trial.

These comments amply demonstrate the sustained concern of the international community about the devastating impact of the NSL on human rights in Hong Kong. It will be recalled that in July 2022, the UN Human Rights Committee asked the Hong Kong government to take action to repeal the NSL and, in the meantime, refrain from applying it. If Hong Kong is to have any hope of regaining its legitimacy on the world stage, the government must address these concerns without further delay.

5. Extraterritorial reach of National Security Law demonstrated by arrest of Hong Kong student studying in Japan

In March 2023, a Hong Kong student studying at a Japanese university was arrested on a visit back to Hong Kong for allegedly “inciting secession”. The arrest was based on online comments about Hong Kong’s independence which the student had made two years ago when she was in Japan. Her passport was confiscated by Hong Kong police, preventing her from returning to Japan to continue her studies.

The case was first reported by Tomoko Ako, a sociology and China studies professor at the University of Tokyo, who expressed concern over the Hong Kong student’s arrest. The arrest highlights the extraterritorial reach of the NSL, which is capable of ensnaring anyone whether within or outside Hong Kong.

The student is believed to be the first person apprehended under the NSL for actions  done in Japan.

“As similar cases accumulate, freedom of speech will eventually no longer be guaranteed, even in Japan,” Professor Ako wrote.

According to the Siracusa Principles,on the Limitation and Derogation Provisions in the ICCPR, protection of national security may only be invoked to justify measures “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force”. There is no indication that the student did anything other than to make social media posts. The case therefore highlights not only the extraterritorial effects of the NSL, but also its draconian restrictions over non-violent political advocacy.

The chilling effects of the NSL, as observed by Professor Ako, spill over into China’s neighbouring countries. This is particularly worrying as it means that the overseas advocacy of Hong Kong diaspora groups could be subject to serious legal risks.

(June 2023 update: The student was formally charged in court and is now on bail (under strict terms). She is accused by the authorities of making 22 allegedly seditious statements on social media.)

6. Arrests of veteran activists Elizabeth Tang and Frederick Ho; Albert Ho’s bail also revoked

On 9 March 2023, Hong Kong police arrested Elizabth Tang, the General Secretary of the International Domestic Workers Federation and former chief executive of the now disbanded Hong Kong Confederation of Trade Unions, for allegedly “colluding with foreign forces” and “endangering national security”. The arrest happened after Tang visited her husband, Lee Cheuk-yan (a former pro-democracy legislator and trade union leader) in prison. (In April 2021, Lee Cheuk-yan had been convicted of organising unauthorised assemblies and sentenced to 14 months imprisonment).

A few days later, Tang’s sister (Marilyn Tang) as well as lawyer Frederick Ho (who is the brother of veteran pro-democracy politician Albert Ho) were also arrested for allegedly removing evidence from Tang’s home.

On 21 March 2023, Albert Ho (who was already on bail in relation to various NSL charges) was arrested again and remanded in custody for allegedly perverting the course of justice by contacting one of the family members of a witness in the ‘47 democrats’ case. On 29 March 2023, the UN Human Rights Office urged the Hong Kong government to release Albert Ho due to his critical medical condition. However, the plea was ignored by the Hong Kong authorities.

This series of arrests of the family members of high-profile pro-democracy leaders  demonstrate a systematic and organised approach adopted by the Hong Kong authorities to target them. The arrests are clearly intended to signal to opposition activists and their family members that their activities are being closely monitored by the regime and that they can be arrested at any time. . In addition, the re-arrest and re-incarceration of Albert Ho, who is undergoing critical lung cancer treatment, highlights the authorities’ inhumane and persecution-minded attitude towards their political opponents.

7. Joshua Wong sentenced to 3 months in prison for revealing personal details of police officer

On 17 April 2023, pro-democracy activist Joshua Wong was jailed for 3 months for posting on social media in 2020 personal details of a police officer. The officer had shot an unarmed protestor with a live round during the 2019 extradition bill protests, leaving the protestor in critical condition. The protestor was later convicted of protest-related offences and sentenced to 6 years’ imprisonment, whereas by contrast the officer was neither charged nor disciplined.

Wong admitted that his post, although taken down after several days, had breached a court injunction which banned the disclosure of the personal information of police officers involved in the 2019 protests.

Wong has been in prison custody since late 2020 on other protest-related and NSL charges, including the ‘47 democrats’ case.

It is notable that, compared with the high number of protestors arrested or jailed for ‘doxxing’ or other charges, no police officer has been held accountable for countless incidents of brutality committed during the protests.

In September 2021, Hong Kong passed a contentious anti-‘doxxing’ law, under which offenders face  severe penalties, including a HK$1 million fine and five years imprisonment, for intentionally revealing individuals’ personal details. The authorities also made amendments to Hong Kong privacy laws, under which the city’s privacy commissioner has power to order internet platforms such as Google and Twitter to remove content classified as doxxing, and to impose sanctions if they fail to comply. Critics say the laws are open to abuse, will erode freedom of speech and expression, and can be used to target government critics.

8. Two arrested for shooting water-guns during Songkran festival celebrations

In April 2023, two men were arrested for shooting water guns at police officers during the Songkran water festival. The festival had taken place on 9 April 2023 in Kowloon City, an area of Hong Kong nicknamed “Little Thailand” for its large number of ethnic Thai residents. In Thai traditions, it is customary to celebrate the Thai New Year with a water splashing festival to wash away bad luck.

On 10 April 2023, a YouTube channel called “Bravedogdog” posted several videos showing revellers at the Songkran festival firing water guns at police officers and journalists from TVB News (a local channel which is widely considered pro-government).

On 12 April 2023, state-backed paper Ta Kung Pao published a column by pro-Beijing columnist Chris Wat mentioning the YouTube channel. She said the men had “maliciously targeted” police and TVB reporters. She believed that they “pretended to splash water but were actually stirring up trouble” and that if there were no ramifications for their actions, it may lead to a resurgence of the 2019 protests.

Later on the same day, two men were arrested by police for causing disorder in a public place. A police spokesperson said they “intended and had attempted to breach public peace” and then posted a video with “seditious wording”. The police would not rule out that the incident was planned in advance and further arrests were possible. Secretary for Security Chris Tang said precautions must be taken to stop people from using culture and media to “make derogatory remarks against the nation with misleading allegations and incite people’s dissatisfaction towards the government or the country.”

As noted by a retired police superintendent, this incident was not the first time that police had water thrown at them during Songkran, but the authorities now appear to be taking a significantly harder line. What had been acceptable and allowed in the past, such as spraying water at the police during the water-splashing festival, may now become a matter of “national security” and deemed illegal.

9. “Winnie the Pooh” horror movie axed under shadow of self-censorship

A screening of the British horror movie “Winnie the Pooh: Blood and Honey” was cancelled after cinemas in Hong Kong collectively declined to show it, according to its distributor. One of the organisers of the screening cited “technical” reasons for the cancellation. The director of the movie commented that “The cinemas agreed to show it, then all independently [came] to the same decision overnight. It won’t be a coincidence … The film has shown in over 4,000 cinema screens worldwide. [Those] in Hong Kong are the only ones with such issues”.

Chinese censors have consistently targeted “Winnie the Pooh” due to the popularity of memes that compare the bumbling bear to President Xi Jinping. The comparisons began in 2013 when Xi met US President Barack Obama and netizens seized on their likeness to Pooh and Tigger.

The film had received a certificate of approval from Hong Kong’s film censorship office, making the last-minute cancellation even more peculiar.

Similar “technical problems” have, however, been a convenient excuse to stifle events across different sectors of Hong Kong society which risk incurring the displeasure of Beijing. An independent “Hongkongers’ Book Fair” was called off after the landlord accused the organisers of breaching the tenancy agreement’s ban on sub-letting. The opposition Democratic Party was forced to cancel its annual spring dinner after the venue claimed that there was a gas metre failure. Cantopop singer and opposition supporter Anthony Wong Yiu-ming had to abandon his upcoming concert after the venue cancelled his booking without reason.

An obvious trend of self-censorship can be seen by connecting the dots of all these events. Under the chilling NSL, the constantly moving red line has been instilled in people’s minds, and often restricts citizens’ speech and actions  even without the need for formal prohibitions.

10. Overseas lawyers banned from working on national security cases without government approval

On 10 May 2023, the Hong Kong legislature passed a law which bars overseas lawyers from working on national security cases unless they receive permission from the government.

This is yet another instance where the Hong Kong government, after losing its case in court, sought the intervention of Beijing by making an “interpretation” of the law – this time, the national security law.

The saga started with Jimmy Lai, the founder of now defunct Apple Daily newspaper and a high profile pro-democracy figure, who has been charged with foreign collusion under the NSL. Lai had sought to engage English barrister Tim Owen KC to defend the charges but Owen’s participation was strongly opposed by the Hong Kong government. Ultimately, the Hong Kong Court of Final Appeal ruled that Owen could represent Lai. However, Hong Kong’s Chief Executive John Lee then asked Beijing to intervene in November 2022. Soon afterwards, Beijing declared in December 2022 that the Hong Kong courts needed approval from the Chief Executive to allow overseas lawyers on national security cases. In February 2023, the Hong Kong government proposed to amend the Legal Practitioners Ordinance. On 10 May 2023, the new law was passed unanimously by the Legislative Council (which is entirely controlled by pro-Beijing factions), requiring the Hong Kong courts to obtain a special certificate from the Chief Executive before allowing overseas lawyers to  participate in any national security cases.

Judicial independence is required by the doctrine of separation of powers and is regarded as a fundamental requirement of the rule of law. In a briefing paper, the Hong Kong government alleged that the amendment would not have adverse implications on the rule of law or the court’s independent judicial power. However, from both the background which led to the proposed amendment and the amendment itself (which has effectively given the government the power to veto any overseas lawyer from working on national security cases), it is crystal clear that judicial independence, defendants’ right to legal representation and the right to fair trial have been critically undermined.