By Cana Yao
Carrying a black flag with a ubiquitous slogan of Hong Kong’s democracy movement, “Liberate Hong Kong, Revolution of Our Times,” Tong Ying-kit rode a motorcycle through the streets of the city on July 1, 2021, crashing into a group of policemen. The 24-year old was arrested, and he is now facing severe charges under China’s new national security law curbing freedom of speech in Hong Kong.
In a historic ruling on Tuesday, Tong became the first person convicted in Hong Kong under China’s controversial national security law, which was imposed just hours before Tong’s protest. In a historic ruling on Tuesday, he has been convicted of terrorism, and secession and faces a possible sentence of life in prison. Tong claims that he tried to avoid hitting the policemen. “We are… sure that the 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 as understood by him to others and he intended to incite others to commit acts separating the HKSAR from the PRC.”
The day after Tong's arrest last year, the government banned the phrase, “Liberate Hong Kong, Revolution of Our Times.”
The outcome was closely watched to gauge how closely Hong Kong’s courts would apply the security law amid fears for judicial independence as China tightens its grip on the city. The new law criminalizes vaguely worded acts such as secession, subversion and foreign collusion. It has unnerved foreign businesses and sparked an exodus from the city. Critics say that the law was tailor-made to end Hong Kong's massive pro-democracy movement by muzzling criticism of the government and freedom of speech—both of which were allowed in Hong Kong for decades, unlike in mainland China. Hong Kong’s Basic Law was intended to secure freedom of speech, but the security law has been used to crush dissent. The guilty verdict was widely expected by both critics and supporters of the security law.
Lead prosecutor Anthony Chau said that Tong caused injuries to the officers with an “utter disregard for human life” and “seriously jeopardized public safety” to pursue a political agenda, citing one officer’s statement that his left wrist still hurts and that he has difficulty performing simple tasks such as opening a bottle.
However, the primary focus of the hearing was the meaning of the slogan on Tong’s flag, and whether or not it was an attempt to cause secession. Chau claimed Tong’s motorcycle ride was effectively a “parade” and that he intended to communicate the words on the flag. Judge Esther Toh said that the words “were capable of inciting others to commit secession”: a “natural and reasonable effect” of the slogan, considering the circumstances. Tong Ying-kit, she said, posed a “deliberate challenge” against the police, who are a “symbol of Hong Kong’s law and order.” The court adjourned within minutes. Prosecution expert witness and history professor, Lau Chi-pang said that the words, which were first coined by former localist leader, Edward Leung, point to separatism when considering their “customary usage” “from a historical perspective.” However, defense lawyer Clive Grossman disagrees, saying that Lau’s argument was based on a “rigid, mechanical view of history” and paid no attention to “rhetoric.”
The High Court judges hearing Tong’s case were chosen from a panel appointed by Hong Kong Chief Executive Carrie Lam, and, in spite of both the city’s tradition of jury trials and Tong’s multiple appeals, the defendant was denied a jury trial.
Eric Lai, an expert on Hong Kong law at the Georgetown Center for Asian Law, said the “disappointing” outcome sets a dangerous precedent--in the future, “prosecutors and judges can now take advantage of this verdict to justify charges of promoting seditious speech against citizens and activists who merely chanted or held flags bearing the same slogan,” he said. Lai added that the verdict is “disproportionate” and means that protesters whose actions are deemed by courts to be linked to a “political agenda” could face prosecution and life imprisonment. “The judges’ reading of the slogan is in line with the narrative of the government and the police,” he said. “The maximum penalty instills a chilling effect on free speech.”
“This verdict violates the spirit of the rule of law," said former pro-democracy politician and activist Nathan Law, who currently lives in exile in the United Kingdom. He said that Tong should have been entitled to a jury trial, rather than one in front of “government handpicked” judges. “The judicial system in Hong Kong is weaponized to suppress. Our right to free expression is severely curtailed," Law said.