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 security. Iain 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.
HK’s Secretary for Financial Services and the Treasury Chris Hui announced in his official blog that IRD has updated tax guidelines for charitable groups, adding national security requirements. The changes, which take effect today, will apply to both existing and future groups. pic.twitter.com/GDYTKcOMWG
— Xinqi Su 蘇昕琪 (@XinqiSu) September 13, 2021
One activist told me it could be partly aimed at pressuring NGOs and other professional organizations into abandoning criticism of the government, lest they lose tax exempt status and then get hit with a reputational stain that could dry up donations.
— Iain Marlow (@iainmarlow) September 23, 2021
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]
During the arrest of Student Politicism group members, Hong Kong national security police took away around 40 boxes of evidence, many of which are snacks and sanitary items – as visitors can give remanded people snacks, and jailed people sanitary items listed under prison rules pic.twitter.com/dcdEYV45XD
— Kris Cheng (@krislc) September 20, 2021
“Helping prisoners is not a problem but it depends on the intention, Steve Li said. “If the intention is to help prisoners with the same beliefs and to recruit followers … to continue to violate national security, it is a problem for sure.” https://t.co/eJMn1doJIa
— Jessie Pang (@JessiePang0125) September 20, 2021
HKPF raided the group’s community space “不二 Bat¹ Ji⁶”, took away postcards and an iPad but left the t-shirts and books. Is it more of a political grandstanding to punish them for raising awareness of prisoners’ rights? Their slogan: “In times we are lost, let’s read together.” pic.twitter.com/rJRz3PBFGc
— K Tse (@ktse852) September 20, 2021
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.
Principal Magistrate Don So denied bail for all three members of Student Politicism as soon as prosecution and defense completed submissions. It’s So’s first sitting in an #NSL hearing. So said, for D1 Wong Yat-chin defense counsel did not submit sufficient materials to convince
— Xinqi Su 蘇昕琪 (@XinqiSu) September 21, 2021
With their bail denied, the three students charged with incitement to subversion will likely face months to years of pre-trial detention, all because they gathered supplies for prisoners, urged people not to use the gov’s Covid tracking app and ran street booths and mini sales. https://t.co/IfgZoeuQWT
— Hong Kong Global Connect (@HKGlobalConnect) September 21, 2021
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]
72 are now imprisoned without trial under the NSL, including 7 from Hong Kong Alliance, and the Student Politicism trio denied bail in court today. Along with Tong Ying-kit, who was sentenced to 9 years in prison, 73 people have lost their freedom this Mid-Autumn due to the NSL. pic.twitter.com/sBUSPyGIHC
— K Tse (@ktse852) September 21, 2021
The pattern is clear in #HongKong now, with judges routinely denying defendants bail in high-profile cases, especially those under the #NSL. The principle of presumption of innocence under conventional wisdom is no longer there. https://t.co/NEKQtJl9mz
— William Yang (@WilliamYang120) September 15, 2021
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.