Last week , Tong Ying-kit (24) became the first person found guilty under Hong Kong’s new National Security Law of inciting secession and terrorist activities. His sentence is nine years in jail, of which 6½ years are for the crime of inciting secession. The terrorism charge was based on him driving his motorbike into a group of police officers during a protest against the National Security Law the day after it came into effect. The incitement to secession charge revolved around the slogan on the flag he bore on his motorbike: “Liberate Hong Kong, revolution of our times”.
Much of the trial focused on the meaning of this slogan and whether it constitutes a crime. But what does this slogan – ubiquitous two years ago and now illegal – mean for Hong Kongers?
The prosecutors in the case argued that the slogan means Tong was publicly advocating secession from China, which is now a crime under the National Security Law. Tong was arrested for protesting on July 1st, 2020, the day after the National Security Law was brought in and, not coincidentally, the anniversary of the handover of Hong Kong from British colonial rule. This law has ripped out freedom of expression from the political landscape of Hong Kong, where vibrant public debate was once tolerated to a surprising extent given its absence in mainland China. Tong’s lawyers argued that the phrase actually meant different things to different protestors and had become a rallying cry for all who wanted to see radical change in Hong Kong, but not necessarily independence from Beijing. In their verdict, the judges ruled that simply by being “capable of inciting others to commit secession” the slogan was illegal.
Trial by jury
Tong was refused the right to trial by jury, the first time in the High Court’s 176-year history that this has happened, signalling the end of functional common law in Hong Kong. Had Tong been tried by a jury of his peers, their view of the slogan might have been very different from that of the three judges appointed directly by Hong Kong chief executive Carrie Lam, herself appointed by Beijing.
A jury would have heard, as the judges did, the view of academics on the meaning of the slogan, but would have also brought their own perspective after living through the protests of 2019-20. The prosecution relied heavily on a report by Hong Kong historian Lau Chi-pang arguing that the slogan advocated “necessarily for the objective of separating the HKSAR [Hong Kong Special Administrative Region] from the People’s Republic of China”. On the other hand, local journalism scholar Francis Lee explained that his study of the usage of slogans in 25 million online posts during the protests found that there was only a low correlation and “no substantial linkage” between the slogan ‘liberate Hong Kong, revolution of our times’ and support for independence.
A jury might have agreed with Lee. At the height of the protests in 2019, two million people joined in, out of a population of 7.5 million, and many more were sympathetic to the protestors’ aims. Most demonstrators opposed a perceived erosion of Hong Kong’s autonomy and the increased influence of mainland Chinese, but stopped short of seeking independence from Beijing. A jury reflecting a cross-section of Hong Kong society would likely have included people who shared such views and seen the slogan in this light.
While Beijing is not expected to heed international condemnation, to say and do nothing gives it and other authoritarian governments a green light to deprive their citizens of their liberty simply for using a slogan
But the judges, chosen for their political reliability from a pro-Beijing perspective, were always unlikely to view the slogan in a nuanced way, and the guilty verdict was no surprise. The refusal to allow trial by jury suggests the legal authorities doubted the outcome of the trial would have been the one they sought had a jury reached the verdict.
Curtail
Tong’s conviction and the judges’ interpretation of the law set out in this case further curtail the freedom of speech of Hong Kong citizens. Now publicly uttering any phrase that could be interpreted as inciting secession risks a heavy prison sentence. Advocating liberation for Hong Kong would cost a citizen their liberty.
The international community has an obligation to speak up for Hong Kong citizens as their rights are being eroded and as they are silenced by the National Security Law, but it is a difficult line to tread. Beijing rejects foreign interference and has used foreign support for the Hong Kong protest movement to discredit it. Due to Britain’s colonial history, any protest its government makes is rebutted especially strongly. Though a comparatively small country, Ireland’s shared history of being subject to colonial rule allows it to speak without the taint of a former coloniser. It should therefore use its position in the EU and on the UN Security Council to call for joint condemnation of such a broad attack on the freedom of speech that is theoretically enshrined in Hong Kong’s Basic Law, its quasi-constitution. While Beijing is not expected to heed international condemnation, to say and do nothing gives it and other authoritarian governments a green light to deprive their citizens of their liberty simply for using a slogan.
In recent years, China has often weaponised its trade relationships to deter foreign powers from expressing their concerns over human rights abuses in Xinjiang and Hong Kong. The price for speaking out over Hong Kong may be too high for Ireland and even the EU as they may risk losing access to the Chinese market. However, when issues touch the core values of Ireland and the EU, there is also a price for staying silent.
Isabella Jackson is assistant professor in Chinese History at Trinity College Dublin