Hong Kong NSL Censorship Roundup: Speech Crimes, Retroactive Film Censorship, Muted Marathoners, and More

Posted by | Oct 27, 2021

On Monday, Adam Ma Chun-man became the second person convicted under Hong Kong’s National Security Law (NSL), and the first person convicted under the law for nonviolent acts of speech. Charged with inciting secession, he faces up to seven years in prison. His conviction sets a dangerous precedent for the over one hundred individuals facing charges under the NSL—85 percent of whom were charged with speech-related crimes—and for others who risk prosecution for speech that was previously legal. In a timely example of how strict the authorities have become, the Hong Kong marathon, held one day before Ma’s conviction, barred runners from wearing “political” slogans as innocuous and ubiquitous as “Hong Kong, add oil!” 

Nicknamed “Captain America 2.0,” in reference to a protester who dressed as the superhero during the 2014 Occupy movement, Ma is known for having chanted slogans, held up signs, and given media interviews at different demonstrations in 2019 and 2020, all while sporting the famous superhero’s shield. He has been held in custody for ten months since his arrest last November.

District Court Judge Stanley Chan Kwong-chi, who was handpicked by Chief Executive Carrie Lam, presented Ma’s conviction in a 33-page judgment after four days of judicial proceedings. Ma will be sentenced on November 11. The sentence for inciting secession normally carries up to ten years in prison, but it is capped at seven years at the District Court level. Brian Wong from the South China Morning Post described how the judge rejected the defense’s argument that Ma never intended for others to act upon his words:

Ma, a 31-year-old former food delivery driver, stood accused of promoting separatism on 20 occasions between August 15 and November 22 last year by using expressions such as “Hong Kong independence, the only way out”, “Hongkongers build their country” and the “Liberate Hong Kong” slogan – a signature chant of the 2019 anti-government protests.

[…] Ma might have enjoyed being surrounded and interviewed by “a group of reporter lookalikes” and might have lacked detailed planning in achieving independence, but he could have gradually changed people’s minds through his “human recorder-style” speeches and made them believe it was possible, [Judge] Chan said.

The judge also cited the High Court’s verdict in Leon Tong’s [National Security Law] case in finding it irrelevant to consider the impact and actual consequences of Ma’s actions. [Source]

Leon Tong Ying-kit was the first person to be convicted under the NSL, in July. He crashed into a group of police officers on his motorbike while carrying a flag emblazoned with the slogan “Liberate Hong Kong, Revolution of Our Times.” Convicted for both terrorism and secession, Tong’s use of the slogan alone earned him six and a half years out of a total nine-year sentence. This second NSL case against Ma, who unlike Tong did not engage in any violent acts, confirms that citizens can be convicted for secession under the NSL merely as a result of nonviolent speech. A recent analysis of Tong’s case by Thomas E. Kellogg and Eric Yan-ho Lai at Georgetown University’s Center for Asian Law shows the excessive free speech restrictions linking Tong and Ma’s respective convictions:

To be sure, the meaning of the slogan in question is not totally irrelevant: no one should be criminally prosecuted for inciting secession over speech that has nothing to do with a territory’s political status, for example. That said, the court’s unduly heavy focus on the exact meaning of the slogan is a bit of a red herring: even if Tong made a more direct and overt statement in favor of political independence for Hong Kong, under the Siracusa and the Johannesburg Principles tests, he would not be guilty of a national security offense unless his speech was both intended to incite imminent violence, and also concretely likely to do so.

[…] The court’s verdict has clear implications that could resonate well beyond Tong’s own case. Its finding that the meaning of the slogan is inherently secessionist, and to infer intent to incite others from the mere act of — admittedly provocative in Tong’s case — public display suggests that any public display of the now-forbidden slogan could be a violation of NSL Article 21. If adopted by other courts, this reasoning would have significant implications for other pending NSL trials: the police have arrested other individuals merely for displaying or chanting the forbidden slogan, as part of an apparent effort to effectively prohibit its use in Hong Kong in any public venue, at any time. [Source]

Prosecutors attempting to provide evidence in Ma’s case submitted t-shirts, seized from a raid on Ma’s home, printed with the slogans “I’d rather die speaking than live in silence” in Chinese and “Give me liberty or give me death” in English. Ma pleaded not guilty, and he chose not to testify or summon any witnesses. His senior defense counsel Edwin Choy instead argued that Ma was simply “immature” for chanting the slogans, and did so only to prove that “exercising freedom of expression is not against the law.” Austin Ramzy at the New York Times described how Ma’s conviction demonstrates that the government is intent on stifling freedom of expression via the NSL:

The activist, Ma Chun-man, had argued that he had not been calling for Hong Kong’s independence from China, but instead had wanted to show that free speech still existed under the law, which Beijing imposed on Hong Kong in June 2020. He will be sentenced on Nov. 11.

Critics say Mr. Ma’s conviction shows that the national security law is being used to silence political dissent.

“The government is trying to use the N.S.L. to stamp out certain forms of speech,” said Thomas E. Kellogg, executive director of the Center for Asian Law at Georgetown University. “This is a core function of the government’s use of the N.S.L. over the past 15 months. As the case against Ma shows, prosecutors continue to bring serious charges against people who say things that the government doesn’t like.” [Source]

Restrictions on freedom of speech have been expanding under the NSL. On Sunday, the Standard Chartered Hong Kong marathon was marred by censorship. Helen Davidson at the Guardian described how right before the race began, numerous runners were prohibited from participating due to displaying “political” symbols or slogans:

Hong Kong marathon runners were ordered to cover up “political” slogans and tattoos before being allowed to compete at the first major sporting event on the island in almost two years.

According to local media reports, runners reported being told to cover up or remove slogans, including idioms like “add oil” – a phrase which was widely heard during the 2019 protests but is also a ubiquitous term of encouragement.

Hong Kong’s Citizen News reported one runner was escorted to a changing booth by police during a security check, and told to change her shorts because of a small printed slogan on the side which was deemed “political”. Another man was reportedly told to cover his tattoos in tape. [Source]

The chair of the marathon organizing committee, William Ko, stated, “This is a sports event and we do not wish to see any political element.” But the controversy was further inflamed when the organizers decided to cut short their post-race press conference after repeatedly deflecting reporters’ questions about censorship. Andrew McNicol and Nick Atkin at the South China Morning Post described the scene at the press conference:

Media members continued to ask questions asking what was political about the words “Hong Kong”, and whether the decision to ban them was made by the Hong Kong Association of Athletics Affiliates (HKAAA), the marathon organisers or the government.

But Ko began his response to all of the questions by repeatedly saying: “I have already said this very clearly”, before repeating his opening statement.

[…] Reporters asked again why “Hong Kong add oil” or similar slogans were deemed uncomfortable or objectionable, and if there would be clothing checks at future marathons.

[…] A public relations official became involved, saying “this question has been answered several times by Mr Ko … if you have any other questions, please feel free to ask them”.

When media members persisted to ask about slogans, the official abruptly ended the press conference. [Source]

In the wake of the press conference, Tom Grundy at the Hong Kong Free Press reported on Standard Chartered’s refusal to support free speech:

When asked if Standard Chartered supported free speech in Hong Kong, a spokesperson for the British bank said they “have no comment on this.”

The bank equally would not comment on whether it would support runners targeted by police, or whether it would sponsor the event next year.

[…] In a statement last June, Standard Chartered said it believed “the national security law can help maintain the long term economic and social stability of Hong Kong.” [Source]

Yet another restriction on free speech emerged on Wednesday, when the Hong Kong legislature passed a new film censorship law, ostensibly to protect national security. Jessie Pang from Reuters explained the contents of the law, which includes hefty fines and even prison sentences for organizers of unauthorized film screenings:

The Hong Kong government said the film censorship law was aimed at content deemed to “endorse, support, glorify, encourage and incite activities that might endanger national security.”

The law empowers Hong Kong’s chief secretary, the second-most powerful figure in the city’s administration, to revoke a film’s licence if it is “found to be contrary to national security interests.”

Punishment for violating the law included up to three years imprisonment and fines of up to HK$1 million ($128,400). [Source]

The law denotes violations using a broad phrase, “contrary to national security interests.” Similarly vague or overly broad phrases have been used in an increasing number of regulations related to the NSL. While the law does not address films disseminated online, some lawmakers hope that the measures will soon be extended to online platforms. Authorities are also able to use the law retroactively to censor films that were previously granted approval. Kelly Ho from the Hong Kong Free Press noted the additional powers given to film censorship authorities under the new law:

An inspector authorised by the censorship agency may also enter and search premises without a warrant when they are trying to halt an unauthorised film screening or publication, if it is “not reasonably practicable” to obtain a warrant.

[…] Local film censors may ask for up to 28 days to review films that may involve national security considerations. Filmmakers may not challenge the censorship body’s decision, as the new legislation will bar the Board of Review from reconsidering decisions made on national security grounds. [Source]

The law is a culmination of months of intensifying film censorship in Hong Kong. Private gatherings that aired both political and non-political films have been raided by police. Film directors have fled abroad to escape the NSL. The Arts Development Council pulled a 700,000 Hong-Kong-dollar grant to an NGO run by the independent filmmakers who released “Inside the Red Brick Wall,” a documentary on the 2019 siege of Hong Kong Polytechnic University. For the first time since 1969, the Oscars were not broadcast in Hong Kong. In her Tuesday press briefing, as reported by Bloomberg, Hong Kong’s Chief Executive Carrie Lam appeared satisfied with the city’s evolution, stating that the Legislative Council had “delivered a brilliant performance” and “done really well in terms of legislative amendments and proposals” this year. 

Tonyee Chow Hang-tung, the vice-chair of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, is another victim of the criminalization of free speech in Hong Kong. Chow was charged on September 9 with “inciting subversion” under the NSL for her role in this year’s June 4 vigil. She pleaded not guilty and argued that the charge violates her freedom of speech. Her case has been adjourned to January 25, 2022, until which time she remains in custody. In a speech to the court, she reiterated her opposition to a charge that stifles her right to freedom of speech:

What I am doing is passing on a tradition, giving a voice to ordinary people, doing everything that an ordinary Hong Konger would like to do at a time like this, and not allowing the regime to monopolize the truth. If the court wants to use the term “incite,” it would be better to say that the people of Hong Kong “incited” me to do this, to act according to my conscience. Even if I am to be punished for it, I have no regrets. [Chinese]

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