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China’s ‘national security’ crackdown creates speech crimes in Hong Kong

Benny Tai Yiu-ting, Associate Professor of Law at the University of Hong Kong (Exploringlife/WikiCommons)
September 12, 2020

This article was originally published by Radio Free Asia and is reprinted with permission.

Prosecutors in Hong Kong recently denied bail to an opposition activist arrested for “sedition” under a draconian national security law after he used slogans from the city’s protest movement, amid a widening crackdown on freedom of expression under a draconian national security law imposed by Beijing.

Tam Tak-chi, vice chairman of the opposition party People Power, is accused of using the commonly heard protest slogans “Free Hong Kong, revolution now!” and “Five demands, not one less!” while giving speeches on the streets of Kowloon between March and July.

Tam is also accused of shouting: “Dirty cops, hope your family members all die!” and of making complaints relating to police inaction during a July 21, 2019 mob attack on train passengers in Yuen Long, and to riot police attacks on passengers in Prince Edward MTR station on Aug. 31, 2019.

Prosecutors are arguing that the intention of the slogans was to sow hatred or contempt for the authorities, and to increase feelings of discontent or disaffection among Hongkongers, a category of speech that has been criminalized since July 1, when the ruling Chinese Communist Party imposed a national security law on Hong Kong.

Tam’s case has highlighted the growing criminalization of speech and peaceful dissent in Hong Kong, as opposition activists report that they have been followed and filmed daily by unidentified personnel since the law took effect.

Protesters still routinely use protest slogans in the streets and on social media, leading to fears that a crackdown on “banned keywords,” similar to the censorship system used in mainland China, may now be on the cards for Hong Kong.

Executive Councillor Ronny Tong appeared to give scant reassurance when he spoke to RFA in an interview on Tuesday.

He said any speech deemed “quite likely” to cause people to feel hatred or hostility towards the government could result in prosecution under the law.

“[We are talking about] extreme and offensive comments, including false statements, that create unfounded hostility towards the government,” Tong told RFA’s Cantonese Service. “It is unlikely that the expression of political demands in themselves will cause people to hate the government.”

Tong said people expressing hatred of Hong Kong’s police force, who rights groups and foreign politicians have criticized for engaging in widespread and disproportionate violence since the protest movement erupted in June 2019, could also face prosecution.

“Yes, that is likely, because we are talking about hatred for a specific group of people,” Tong said.

‘Hateful to accuse’

Hong Kong police commissioner Chris Tang has also warned that suggesting that someone died during the riot police raid on Prince Edward MTR station could also result in prosecution under the law.

Tong seemed to agree with this view.

“If there haven’t been any deaths, then it’s hateful to accuse someone of committing murder, right?” he said.

But legal scholar Benny Tai, who lost his job at the University of Hong Kong after being jailed for “inciting” the 2014 Occupy Central pro-democracy movement, said slogans such as “Free Hong Kong, revolution now!” and “Resist!” couldn’t be interpreted as inciting hatred towards anyone.

“It’s hard to see how ‘Five demands, not one less!’ ‘Free Hong Kong, revolution now!’ and ‘Resist!’ would fit under the [relevant clauses],” Tai told RFA.

“These interpretations should be as narrow as possible, so that the impact on the freedom of speech is as small as possible, which is in the fundamental spirit of common law,” he said.

Crackdown on public speech

Hong Kong University law lecturer Eric Cheung said the sweeping powers granted to Hong Kong’s own national security police, and also to mainland state security police operating in the city to enforce the law, make a crackdown on public speech much more likely.

He said the widespread uncertainty over what constitutes banned speech under the new law is deliberate.

“The authorities are using vague wording to create a chilling effect that will undermine the rule of law in Hong Kong,” Cheung told RFA. “We actually don’t know where the lines are drawn.”

“One very important element of the rule of law is that the law must be clear enough for people to know exactly when the line is being crossed,” hes aid. “But we have gotten to the point where even a lawyer can’t tell us exactly what we can and can’t do, and the regime will only tell you what not to do.”

“They want you to know that you need to back off if you don’t want to [inadvertently] cross the line.”

He said nobody had yet been targeted for inciting hatred against protesters, for example, among pro-China and pro-police demonstrations that sometimes show up at protests and pro-democracy events.

“Selective enforcement of the law and a lack of clarity in the law both affect freedom of speech,” Cheung said.

State exercise of power

Cheung said China’s main concern is that nobody should impede or hinder the state’s exercise of its power.

“Hindering the government … is always an offense in China’s concept of governance,” he said. “They have made it clear that this is a new situation and a new mission [in Hong Kong].”

Cheung said he also worries that Beijing is laying the groundwork for changes to Hong Kong’s judicial system, given a slew of recent official comments to the effect that there is no separation of powers in the city under Chinese rule.

“The government has been paving the way for a new system to be put in place,” he said. “This hasn’t yet been invoked, but it will be sooner or later.”

He said Beijing could order the chief executive to exercise more direct powers under Article 48 of Hong Kong’s mini-constitution, the Basic Law, which require the incumbent to “implement the directives of the Central People’s Government.”

“It is precisely because of the National Security Law for Hong Kong that the government has more powers, especially the national security police, who have far greater powers than the average police officer,” Cheung said.

“They can search houses, check phones, and obtain information online,” he said. “It’s basically the same modus operandi that they use in mainland China.”