Strength of Cases Against Arrested Hong Kong Democrats Uncertain

On the eve of the enactment of the Hong Kong National Security Law, Chief Executive Carrie Lam addressed the 44th session of the UN Human Rights Council: “[The law] will only target an extremely small minority of people.” Just over six months later, 93 people have been arrested under the new legislation, corresponding to an average of one arrest every two days.

The majority of those arrests came on January 6, when every candidate who ran in the 2020 pan-democratic camp primary election and five organizers were arrested for “subversion.” National security police accused the candidates of plotting to win a majority in order to paralyze the legislature, and ultimately force the Chief Executive to resign, a plan that is laid out and permitted in Hong Kong’s mini-constitution.

On Thursday, legal experts, including several pro-Beijing figures, voiced doubt about whether the democrats’ plan was sufficient evidence to secure their conviction. South China Morning Post’s Chris Lau and Jeffie Lam reported on the comments of several legal experts who were puzzled over the basis for the arrests:

But legal scholar Simon Young Ngai-man, from the University of Hong Kong (HKU) said: “Paralysing the government by means that are lawful and without violence or threat of violence is not a crime.”

[…] Ronny Tong Ka-wah, a senior counsel and a member of the chief executive’s de facto cabinet, the Executive Council, said he did not see how the democratic primaries could be considered subversion unless there was more evidence that the plan involved violence or other unlawful behaviour. He said the authorities needed cite more elements in the conduct of the polls to prove the commission of a crime.

[…] Pro-establishment heavyweight and barrister Maria Tam Wai-chu, who is also vice-chairwoman of the Basic Law Committee that advises Beijing on the city’s mini-constitution, agreed police might have to produce more evidence to build their case.

[…] But she added: “What we don’t know is the ‘unlawful means’ that was being employed to commit this offence, that’s up to the police to further investigate. But the secretary for justice is not likely to charge someone unless there’s a reasonable chance of conviction.” [Source]

Public broadcaster RTHK reported on comments from Michael Tien, a pro-Beijing lawmaker and current National People’s Congress deputy, who echoed the legal experts’ doubts while highlighting the political stakes involved in the arrests:

“Looking at the way the law is written, I don’t see how these people can be convicted, unless the court interpreted the ultimate motive as part of the bill… If that’s the case, then this massive arrest will result in another slap in the face for the government,” he said.

He said that scenario would only make Hong Kong more divisive, as it would show that the government was prosecuting people without understanding the law.

The pro-Beijing lawmaker added that the national security law might also need to be redrafted.

“Is there something wrong with the drafting of the national security bill, if the original intention is to do with the motive, rather than the methodology?… If they are concerned about the motives and the ends of all these acts, why did they bother to put in the means? That would only complicate the matter,” he said. [Source]

Even if the charges on the 53 fail to stick, the arrests substantially alter the activists’ personal and political situations. While most of the arrested were released on bail on Thursday after being detained for more than 30 hours, many were reportedly required to surrender their passports—a possible reflection of authorities’ heightened concern about pro-democracy activists fleeing the country. At least one former lawmaker, Wu Chi-wai, also the former chair of the Democratic Party of Hong Kong, was remanded in custody overnight for breaching previous bail conditions, after his British National (Overseas) passport was found in his home. In the case of pro-democracy media mogul Jimmy Lai, prosecutors showed an aggressive desire to remand those charged with the National Security Law in prison. Legal expert Jerome Cohen wrote about the potential implications of the legal battle over his bail for the 53 arrestees.

The arrests also have significant implications for the re-scheduled Legislative Council (LegCo) elections this year. Citing the COVID-19 pandemic, Chief Executive Carrie Lam postponed the 2020 LegCo elections in August by one year. The government has also aggressively used disqualifications to prevent candidates from running in the elections, a wave of which came last year before the election was delayed altogether.

Article 35 of the National Security Law explicitly strips convicted individuals of the right to run for elected office in Hong Kong, and also disqualifies sitting officials. Given the lethargic pace of the judicial process in Hong Kong, it is unclear whether the arrestees will receive judgements before the election later this year, but should prosecutors choose to press charges against the 53 arrestees, election officers in Hong Kong may have an additional pretext to disqualify them from running in 2021.


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