Five-year Prison Terms for Hong Kong Students Deepen Fears of Retroactive Use of National Security Law

On Tuesday, five former students of the Chinese University of Hong Kong (CUHK) were each sentenced to almost five years in prison for their involvement in protests against the National Security Law in November 2019. One of the former students remained courageously defiant even in the face of the particularly harsh sentences, which she interpreted as simply a means to suppress dissent. While the charges were not levied on violations of the National Security Law itself, recent judicial rulings point to an increasingly retroactive application of the law and a harsher use of existing ones.

Selina Cheng at the Hong Kong Free Press described the prosecutions of the five former students:

Four men – Lau Chun-yuk, Ko Chi-pan, Chan Lik-sik and Hui Yi-Chuen – received prison terms of four years and nine months, while one woman – Foo Hoi-ching – was sentenced to four years and 11 months in jail.

The five were convicted earlier in September of participating in a riot on November 11, 2019 at CUHK near its No. 2 Bridge – an overpass at the edge of the campus in Sha Tin, overlooking the Tolo Highway and MTR tracks.

[…] Aged between 20 and 23, the five defendants were convicted of one count of rioting and one count of using face covering during an illegal assembly. Two of the defendants were also convicted of possession of offensive weapons or tools for unlawful purposes. [Source]

The judge deliberately chose harsh sentences for the five former CUHK students in order to send a message deterring others from contesting the laws. Brian Wong from the South China Morning Post reported on the judge’s severe and controversial ruling:

Tuesday’s ruling marked the second time a judge had handed down prison sentences over intense clashes between hardcore protesters and riot police that gripped the Sha Tin campus at the height of the anti-government unrest in November 2019.

Sentencing the five at West Kowloon Court, Deputy Judge Kathie Cheung Kit-yee said the defendants must have chosen to remain at the scene either to take part in the violence or abet the criminal acts of their comrades.

The lack of evidence over the defendants’ level of involvement was no reason to reduce their jail sentences, she said, because all participants in a riot shared the same culpability regardless of their roles in it. [Source]

Foo Hoi-ching, the one woman among the group of former CUHK students sentenced, remained particularly defiant. Foo’s letter to the court, published in Chinese at HK Feature, was translated on Twitter by Lokman Tsui:

First of all, this letter of plea is not intended to gain the mercy of the judge.

In asking for the background report, I honestly have no regrets for my actions, and I also have nothing to say to the judge in my plea, because I do not agree with the law itself, nor do I feel I have done anything wrong. Simply put, I do not think this is a reasonable sentence. 

In the eyes of some people, “the law is the law, and if you break the law, you need to bear responsibility”. Others may also believe that the court’s ruling proves that the protesters’ behaviour is wrong, and their actions in vain. But I believe that authority does not equal correctness.

[…] Under a totalitarian regime, the law is only a bloodless but violent tool of the authorities to control the people, and the court is not a place of justice. In such a place, only attention is being paid to social order on a surface level, but the root cause of what is tearing the society apart is ignored. [Source]

While Hong Kong authorities initially attempted to assuage protesters’ fears by repeatedly declaring that the new law would not be retroactive, its introduction has opened the door to retroactive prosecutions. Greg Torode from Reuters described the judicial developments that paved the way for more expansive and retroactive application of the National Security Law:

Several groups, including veteran protest organiser Civil Human Rights Front, are under investigation for acts that pre-date the security law, according to statements by senior police and reports in pro-Beijing media.

[…] Two paragraphs in recent court judgements appear to clear the path for security probes into past actions, they warn.

One February ruling in the Court of Final Appeal suggested that the national security law’s reference to “acts endangering national security” included violations of older laws.

And a District Court ruling in April noted that under the security law, the older offence of sedition was now classified as a more serious crime, potentially removing its previous statute of limitations of six months. [Source]

Eric Lai explained in the Diplomat how the Hong Kong government is fusing colonial-era sedition laws with the National Security Law to expand censorship:

The use of sedition laws also implies that Hong Kong society will be further securitized by the integration of the new national security law with the many preexisting draconian laws. While the departed colonial administration had refrained from enforcing the sedition law since the 1970s, the new government of Hong Kong finally gave up that self-restraint to resurrect this draconian law. In April 2021, Luo Huining, Beijing’s top representative in Hong Kong, requested that the local government “strike down hard resistance and regulate soft resistance” by law.

It is clear that Beijing is not content to rely on the new national security law to safeguard its power in Hong Kong, but also will to use other legal measures to regulate opposition voices in the city. The deployment of the sedition law works hand in hand with other colonial laws, such as the Societies Ordinance, which criminalizes unlicensed civil organizations, and the Education Ordinance, which empowers government bureaucrats to revoke the licenses of teachers who discuss sensitive political issues with students. Using preexisting laws to silence dissenting opinions and censor publications is a cost-effective way to enhance the national security regime without attracting too much attention from foreign parties, who would have strong reactions to the frequent use of the national security law. [Source]

Several events already point to retroactive application of the National Security Law. In November 2020, authorities disqualified legislators on national security grounds, citing statements the lawmakers made before the law was enacted. In June 2021, authorities arrested senior staff members of Apple Daily, citing articles they helped publish that allegedly violate the NSL, despite many of them being published before the enactment of the law. Authorities also recently passed legislation allowing the government to censor films that were previously approved, with organizers of unauthorized screenings facing up to three years in prison. Owen Churchill at the South China Morning Post described one of the strategies used for applying the National Security Law retroactively

Legal expert Michael Davis, author of Making Hong Kong China: The Rollback of Human Rights and the Rule of Law, told commissioners that authorities were using entities’ prior actions as a pretext for investigation.

“They look at the organisation’s track record … and they say: ‘Well all the things you did before the law was passed shows what your what your views are, and … you still exist, so in effect we’re investigating you, and we’ll see what happens,” said Davis. “So these organisations know that there’s a way that retroactivity sneaks in the back door.” [Source]



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