Hong Kong’s Expansive National Security Law Swallows Activists, Bail Requests, and M&Ms

Hong Kong authorities’ implementation of the National Security Law has been expanding in scope and strictness, with broader language used to describe alleged violations and harsh interpretations of individual cases. As civil society crumbles under its weight, the law is increasingly revealing itself to be a tool for crushing dissent rather than protecting securityIain Marlow at Bloomberg traced the quiet evolution of the language used in National Security Law cases: 

City authorities have begun using the phrase “contrary to the interests of national security” in recent weeks to define new red lines in the entertainment industry and the tax code. Previously, officials had warned more specifically against anything that might “endanger national security.” The latter term appears 31 times in the full text of the security law, while the “contrary to” phrasing is absent.

[…] “This shift in rhetoric suggests a move to embrace an even broader formulation of national security, and of national security crimes,” said Tom Kellogg, the executive director at Georgetown University’s Center for Asian Law. “We’ve seen a strong push to inject national security concepts into so many areas of Hong Kong life. It only makes sense that the government would use new rhetoric to deal with that broadening approach.” 

[…] The ambiguity of the newer phrasing gives Lam and other officials the ability to “arbitrarily” expand the definition of potential violations, said Jerome Cohen, founder of the U.S.-Asia Law Institute at the New York University School of Law and one of America’s foremost experts on Chinese law.

“I would not underestimate the importance of ‘guidance’ in determining the meaning to be legally attached to ambiguous terms,” he said, noting that courts and legislators often defer to administrators’ interpretations of vague statutory terms. [Source]

The new language is already taking root in official guidelines. The Hong Kong government introduced a Film Censorship Bill in late August containing three amendments that use the new phrase “contrary to the interests of national security.” In early September, the government updated tax guidelines for charities, stating that any charitable organization supporting or promoting activities “contrary to the interests of national security” will be punished. 

Prosecutions under the National Security Law have continued. This week, Hong Kong national security officers arrested four members of a student activist group, Student Politicism, and charged them with conspiracy to incite subversion of state power. If convicted, they could face seven years in jail. The students, aged 18 to 20, were alleged to have dissuaded people from using the government Covid-19 tracking app and to have provided supplies for people in prison. Candice Chau from the Hong Kong Free Press described how the government interpreted this latter activity as a threat

Police also searched the group’s storage space at a warehouse in Kwai Chung and confiscated items including dried fish snacks, M&M candies, bottles of body lotion, towels, postcards and flags.

Li accused the group of “systematically providing resources to like-minded people who are jailed,” and cited the Secretary for Security and the head of the correctional services as saying that those resources were useful in “recruiting followers in prisons.”

[…] Smuggling such items inside to recruit followers and build influence would “create hatred towards the government and endanger national security,” Tang said. [Source]

Hong Kong authorities have also been unusually strict in determining whether defendants should receive bail while awaiting prosecution. All four students arrested in the Student Politicism case were denied bail on Tuesday, after the magistrate sided with prosecutors in a hearing overseen by jurists hand-picked by Chief Executive Carrie Lam. The day before, a justice of the High Court denied bail to another opposition activist, Roy Tam Hoi-pong, who was tried for subversion after taking part in an unofficial primary election last year. In total, 47 opposition activists and politicians connected to this case have been arrested for conspiracy to commit subversion; most of them have been held in custody for over six months, and only 14 have been granted bail. The Principal Magistrate continues to extend their time in custody, stating that more time is needed for pre-trial legal proceedings, on which the media has been prohibited from reporting.

For those entangled in the web of national security prosecution, bail may no longer be a common legal endowment. Stand News described “society’s new normal” of endless proceedings and ordinary citizens targeted

The provisions of the Hong Kong National Security Law stipulate that bail will not be granted unless the appointed judge “has sufficient reason to believe that the defendant will not continue to commit acts endangering national security.” The people of Hong Kong have discovered that being “remanded in custody pending trial” is society’s new normal; after the freezing of Apple Daily’s accounts and the successive arrests of several of the publication’s high-ranking executives, everyone discovered that even a major media organization could be reduced to bankruptcy in a single week.

[…] When the National Security Law (NSL) first emerged, Hong Kong officials repeatedly emphasized that NSL was only aimed at “a small group of people.” One year later, the list of individuals arrested under the NSL includes politicians, media tycoons, journalists, the hosts of online shows, and even many ordinary citizens.

According to law enforcement data, as of the twenty-first of this month, a total of 153 people aged between 15 and 79 have been arrested for engaging in acts and activities that endanger national security. There are four crimes that fall under the National Security Law: secession, subversion of state power, terrorist activity, and collusion with foreign countries or foreign forces to endanger national security. There have been formal prosecutions of all of these crimes; if the defendants are found guilty, they face the maximum sentence of life imprisonment. [Chinese]

At Vice this week, Holmes Chan reported that one anonymous judge had privately expressed concern over the National Security Law’s distortion of legal norms, condemning the sentencing of Tong Ying-kit, the first person charged under it, who was convicted of secession and terrorism for driving his motorbike into police while holding a protest flag. 

“Privately, I felt this case was unfair. This is not how the law should work,” the judge said during an exclusive interview.

[…] The judge, who spoke to VICE World News anonymously due to the sensitivity of the matter, said that the court relied on a “questionable” understanding of criminal law concepts and sentenced Tong too harshly. That assessment was based on the judge’s prior experience, though they had no involvement in Tong’s trial.

“[Tong] didn’t do much of anything—he didn’t commit murder or arson,” the judge said wryly. “He is the most benevolent terrorist in the world.” [Source]

Translation by Cindy Carter.


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