HK Government Should Apologize, Make Compensation to National Security Crime Victims: HK Rule of Law Monitor Report

A scene outside the High Court on the day the application by the Department of Justice to ban "Glory to Hong Kong” was heard, in Hong Kong, on July 21, 2023. Sung Pi-Lung/The Epoch Times

Commentary

In its third year since the Chinese Communist Party’s (CCP) implementation of the “National Security Law (NSL)” in Hong Kong, and the damage to the Hong Kong rule of law, human rights, and government accountability system has become increasingly apparent. The ”Hong Kong Rule of Law Monitor,“ a group formed by legal professionals recently released a report summarizing the state of Hong Kong’s rule of law in 2022, in which it describes ”rule of law” as now being utilized by the authoritarian regime as a tool to undermine freedom and human rights. Moreover, the same “rule of law” guise has also been taken as an excuse to enforce the current NSL and the vintage colonial-era sedition law. The concerns about the NSL from both legal academics and practicing lawyers have become a worrying reality.

The “Hong Kong Rule of Law Monitor,” a group comprised of lawyers, law students, legal academics, and legal professionals in exile, published a 122-page “Hong Kong Rule of Law Report 2022” on Oct. 23. The report criticized the CCP of prolonging contempt of its obligation in keeping alive the promise it made in the UN registered “Sino-British Joint Declaration,” and directly violating the said declaration as evidenced by its execution of the NSL in Hong Kong.

The report contains three main parts, namely, Were Human Rights Protected by the Rule of Law in Hong Kong? Was the Rule of Law Implemented Well in Hong Kong?, and Was the Rule of Law Well Monitored in Hong Kong?.

Apologies and Compensation for Victims of NSL and Sedition Offenses

The report also made as many as 57 recommendations, including the withdrawal of the NSL and the sedition law by the Hong Kong government, the release of all detainees under these laws, and the issuing of apologies and compensation to the victims of these legal provisions. It calls for the cessation of all cases brought against journalists who just exercised their right to speech and providing them with appropriate compensation.

In addition, the Hong Kong Government is urged to set up an independent legal aid authority that is free from government interference. It should also abolish national security education in schools and restore the autonomy of student unions in all universities.

Apart from recommendations directed at the Hong Kong government, the report also calls on the international community to continue to monitor and record the situation in Hong Kong and put pressure on the Hong Kong government to modify the Public Order Ordinance. Additionally, fear of persecution under the NSL should also be considered as strong evidence to support an application for political asylum.

The report also suggested that non-permanent judges from overseas should not accept the appointment as non-permanent judges of the Court of Final Appeal.

NSL Challenges Principles of Common Law

In the section, “Were Human Rights Protected by the Rule of Law in Hong Kong?” the report referenced the case of Lui Sai-yu, which concerns the minimum sentencing requirements under the NSL, undermining the court’s discretion in considering aggravating and mitigating factors and resulting in uncertain judgment in future.

In 2022, university student Lui Sai-yu pleaded guilty to “inciting others to commit secession.” The original trial judge Amanda Woodcock ruled that the case was “less serious,” and set a sentencing starting point of 5.5 years. Lui was handed a prison term of three years and eight months, after being discounted by one-third due to his guilty plea. However, the prosecution lawyer argued that the NSL stated that secession is a crime “of a serious nature,” which carries a minimum prison term of “not less than 5 years,” and Mr. Lui was then sentenced to 5 years in prison.

Mr. Lui’s appeal to the Court of Final Appeal (CFA) was rejected in August this year (2023). The CFA asserted that Article 33 of the NSL does not allow reliance on reduction factors unrelated to the said article, such as the guilty plea in this case.

The report also mentioned an inevitable clash between the NSL and the current Common Law system in Hong Kong and that the NSL is likely to challenge the principles of the rule of law from various angles. Among them, the charge of “collusion with foreign forces” is particularly worrying, as in all related cases, the prosecution has refused to clarify what constitutes “foreign forces.”

Resurrection of Vintage Sedition Law

The report also mentioned the active participation of Hong Kong’s judiciary in the implementation of the vintage sedition law left over from the colonial period. However, because it did not meet the usual international human rights standards, they were heavily criticized. This is particularly evident in cases such as the prosecution of individuals clapping in the courtroom, during court hearings.

The report pointed out that the spectators involved in the above-mentioned case include Garry Pang Moon-yuen, a pastor, and Chiu Mei-ying, a housewife, during a court hearing for activist Chow Hang-tung on Jan. 4, 2022.

The report also pointed out that Tam Tak-chi (alias Fast Beat), former vice chairperson of the People Power party, was convicted of 11 charges under the Crimes Ordinance, including “uttering seditious words.” It was the first case of “uttering seditious words” after Hong Kong’s transfer of sovereignty in 1997.

On the other hand, the report also mentioned a number of other cases involving the crime of sedition, including veteran media journalist and columnist Allan Au Ka-lun, arrested on suspicion of conspiring to publish “seditious publications; the “Stand News” sedition case in October 2022; the “Sheep Village” children’s book legal case in which five directors of the General Union of Hong Kong Speech Therapists were sentenced to 19 months in prison. Other cases include during the mourning of Queen Elizabeth II in September 2022, a man was arrested for playing “Glory to Hong Kong;” as well as the conviction of radio host “Giggs,” Edmund Wan Yiu-sing.

Peaceful Rally Rights Undermined

The report also describes the serious implications on rally organizers brought about by heavy penalties on sedition, which effectively stifles any form of lawful protests. It also states that the NSL and other felonies have created a chilling effect on society in general and concluded that the rule of law has failed to effectively protect the fundamental rights of peaceful assembly.

The report criticized that the CFA just paid lip service to its commitment to safeguard freedom of assembly but has in fact departed from international law and believed that the importance of rally freedom is low when weighed against the interests of national security, public order, and public health.

On the other hand, the report pointed out that the authorities used the pandemic as an excuse to suppress peaceful rallies, such as the June 4, and July 1 rallies. By the end of 2022, the government still maintained a restriction on group gatherings, and on the other hand, the “Prohibition on Face Covering Regulation” still remained in force.

According to the report, international law acknowledges that the right to peaceful rallies can be limited on the grounds of protecting public health. However, because Hong Kong allowed other daily business activities during the pandemic, the government failed to provide specific evidence that the gatherings may pose a more dangerous threat than other activities. Therefore, it is difficult to justify the government’s decision to ban protests.

Undermining Business Confidence, No Guarantee the Authority Will Remain ‘Apolitical’

The report pointed out that the Hong Kong authorities have exercised selective policing targeting enterprises that voiced support of the pro-democracy movement, the so-called “yellow economic circle.” As a result, Chickeeduck owner Herbert Chow left Hong Kong in May 2022, and two owners of “Royaltea Shop” were taken away by the police. Two caterers, “Shenko,” a popular Japanese restaurant, and “Kwong Wing Catering” were both penalized for breaching COVID-19 regulations and were ordered to halt night-time dine-in services for 14 days.

There was also mounting pressure on the independent publishing sector. The report cited two such cases. Hillway Press was refused a booth at the Hong Kong Book Fair, and when it wanted to organize its own “Hongkongers’ Book Fair” the venue’s landlord abruptly terminated the lease just one day before the event leading to the fair’s cancellation.

The report states that the above incident highlighted the fact that Hong Kong is rapidly degenerating into a society operating below “rule by law.” While foreign companies currently appear unaffected by selective law enforcement, the report believes that it cannot be guaranteed that Hong Kong authorities’ future actions will remain “apolitical.”

British Judges Resigned from CFA

In Part II of the report, in assessing “Was the Rule of Law Implemented Well (in Hong Kong)?,” it mentions the generally diminishing judicial discretion and violation of division of power, and believes that as the Chief Executive has the right to appoint the Judges to NSL cases, coupled with the absolute power of the judge, rather than the trial by jury, enables the administrative department to choose a group of judges who are expected to make favorable judgments, with the NSL judges seemingly serving primarily for the executive branch. The report also stated that the existence of the NSL together with the pro-Beijing forces is seriously damaging Hong Kong’s judicial independence.

In addition, the report mentioned a number of incidents that occurred in 2022. For example, after the new leadership of the Hong Kong Bar Association (HKBA) was inaugurated, it remained noticeably muted about the arrest of the trustees of the “612 Fund,” even if that includes its most respected and esteemed barrister, Margaret Ng Ngoi-yee. In addition, it also mentioned the case of the then Chief Executive Carrie Lam’s unprecedented move in delaying HKBA’s initial nominee, Sarony, Neville Leslie, S.C., a UK-trained barrister, to the Judicial Officers Recommendation Commission, and only filled the post later with Victor Dawes S. C., the new HKBA chairperson to the position.

In March of the same year (2022), two non-permanent CFA judges from the British Supreme Court resigned. On March 30, 2022, the British Supreme Court announced that President Lord Robert Reed and Deputy President Lord Patrick Hodge resigned as judges in the Hong Kong Court of Final Appeal, which took effect immediately. Lord Reed said in a statement that he and Lord Patrick Hodge “cannot continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the (British) Supreme Court are deeply committed.”

Hong Kong Media Rarely Criticizes Due to Chilling Effect

Part III of the report deals with “Was the Rule of Law Well Monitored in Hong Kong?.” It mentioned that as of the end of 2022, a total of 11 journalists and media workers were imprisoned. The report described the suppression of the pro-democracy media and the prosecution of the journalists have created a chilling effect on the media.

In addition, in January 2022, “Citizen News” suspended operations under the shadow of editors and management arrest of “Apple Daily” and “Stand News.” The report stated that “At present, apart from some smaller, online-only operations, there is virtually no media outlets left in Hong Kong that take an editorial stance critical of the government.”

The report also mentioned that Jimmy Lai Chee-ying, founder of the Apple Daily, was convicted of fraud, and his six senior managers acknowledged the crime of conspiring with foreign forces. The Hong Kong Journalists Association has been targeted by the authorities, and its Chairperson Ronson Chan was arrested during reporting duty and charged with obstructing the police during law enforcement and disrupting public order.

In addition, the Foreign Correspondents’ Club canceled its annual Human Rights Press Awards in April 2022, and court reporting restrictions in national security cases were also mentioned in the report.

The report analyzed that “the sedition offence has proven to be a lethal weapon.” The courts’ extending NSL provisions to sedition cases have resulted in reporters being locked up for indeterminate periods of time. The report is concerned that the government seeks to add “new weapons” to its toolbox. Things such as the “Fake News” offense, and Article 23 legislation under the Basic Law.

Suppressing University Student Groups to Weaken Public Monitor on Rule of Law

In the academic community, many universities have suppressed student organizations, restricted academic freedom, and weakened public oversight of the rule of law. The report argues that “national security” cannot be an excuse to suppress academic freedom in Hong Kong. The report states that the rapid deterioration of the academic freedom of universities in 2022 shows that it is urgent to reform the governance structure of the universities to promote and strengthen their autonomy. In order to better protect academic freedom, the authority of the Chief Executive in deciding who to govern universities should be revoked.

With respect to civic society, the report states that within two years since 2020 after the NSL implementation, more than 58 independent organizations have been closed or disbanded. In 2022, the Hospital Authority Employees Alliance and the Union for New Civil Servants disbanded, with some of the core members being threatened, arrested, prosecuted, or jailed. “Such arrests, threats, prosecutions, and overall chilling effect have completely decimated the once vibrant civil society in Hong Kong. This is a severe infringement of the freedom of association and other fundamental rights enshrined in the Basic Law, the Hong Kong Bills of Rights, and the ICCPR, and a serious threat to human rights and the rule of law,” the report concluded.