The use of a broad, colonial-era law to arrest an opposition activist over “seditious” remarks has placed Hong Kong’s freedom of speech under threat, legal experts have warned.
The scholars’ concerns emerged on Monday as lawmakers found themselves divided over whether the police force’s powerful new national security unit should have dropped the case after concluding it did not have enough evidence to pursue charges under the legislation for which it was named.
Hong Kong opposition activist Tam Tak-chi arrested by police’s national security unit amid calls for protest in Kowloon
Tam Tak-chi, a leading figure in localist group People Power, was arrested on Sunday by members of the recently formed unit on suspicion of uttering seditious words at street booths he operated across the city between June and August.
Under section 10 of Hong Kong’s Crimes Ordinance, anyone who commits acts with seditious intent or utters seditious words can be fined HK$5,000 (US$645) and jailed for two years on their first offence.
Eric Cheung Tat-ming, principal lecturer at the law school of the University of Hong Kong (HKU), on Monday said the law’s language was broad and hard to understand, leaving room for many words and phrases to fall afoul of the offence.
“If the interpretation is so loose, it is difficult to meet the requirements of human rights protection, because it will inevitably impact freedom of speech,” he said. “Just because freedom is not absolute does not mean you can use a vague law to deprive people of those freedoms.”
The Sedition Ordinance was introduced in 1938 and later incorporated into the Crimes Ordinance in 1971. But the Hong Kong Bill of Rights Ordinance, enacted in 1991, stipulates the city’s laws must comply with the principles of the International Covenant of Civil and Political Rights, under which limitations to free expression must be necessary, reasonable and well-defined.
On Sunday, police said Tam had organised 29 “public health” street booths over a three-month period, during which he incited discontent and disaffection among Hongkongers, and hatred and contempt against the government.
This law was enacted almost 100 years ago, if we still use this standard to evaluate it, I believe it will be very hard for society today to accept it … there will be little room for freedom of speech
Johannes Chan, former HKU law dean
According to Tam’s Facebook page, he set up booths multiple times in July, where he chanted slogans such as “Liberate Hong Kong; revolution of our times” and “black cop, whole family go to hell”.
Senior Superintendent Steve Li Kwai-wah of the national security unit did not say whether Tam’s slogans were the words over which he was arrested.
The activist also set up street booths during August, where he passed out face masks and criticised city leader Carrie Lam Cheng Yuet-ngor for failing to control the Covid-19 pandemic.
At the streetside “Anti-epidemic 3.0 Health Seminar” on August 9, Tam displayed portraits of mainland Chinese and Hong Kong politicians – including Lam and the director of Beijing’s liaison office in the city, Luo Huining – and could be heard calling them “dog officials” on his Facebook live stream.
He also asked passers-by to attach stickers to the faces of the officials they would most like to see sanctioned.
Hong Kong’s sedition law has been seldom used since its introduction, mainly against supporters of the Communist government in mainland China. It has been even more rarely invoked since Hong Kong was returned to Chinese rule in 1997.
In 1952, the editor of Ta Kung Pao, a pro-Beijing newspaper, along with its printer and publisher, were charged with seditious publication for a series of articles and editorials criticising the Hong Kong government’s decision to block a mainland group from visiting victims of a squatter fire.
In 1967, Chak Nuen-fai, general manager of Nan Cheung Printing Company, was jailed for three years for printing seditious articles in the pro-Beijing Hong Kong Evening News, New Afternoon News and Tin Fung Daily.
Chak was charged under the Sedition Ordinance at the height of the 1967 riots – which claimed 51 lives – along with four others, including Wu Tai-chow, former president of the Hong Kong Evening News and New Afternoon News.
That same year, Tsang Tak-sing, a Form Six student at St Paul’s College in the Mid-Levels, was arrested and sentenced to two years in prison for distributing inflammatory leaflets in classrooms.
He was not explicitly convicted of sedition, but rather for breaking the Emergency Regulations Ordinance, which banned “inflammatory posters” at the time. Tsang would go on to serve as Hong Kong’s home affairs secretary from 2007 to 2015.
The sedition clause has been rarely invoked since, something that changed in March of this year, when police arrested opposition politician Cheng Lai-king for sharing a Facebook post criticising a police officer.
A day after Tam Tak-chi’s arrest, critics also questioned why the national security unit would arrest someone related to sedition, a crime that falls outside the bounds of the sweeping national security law Beijing imposed on June 30.
Li said Tam was initially investigated for inciting secession under the Beijing-imposed law, but police decided it was most appropriate to use the Crimes Ordinance after collecting evidence and discussing the case with the Department of Justice.
“If the Organised Crime and Triad Bureau investigates a case that turns out to be … related to other crimes, such as theft, [it] will also investigate that,” Li said, adding his unit would continue to handle the case.
But pan-democrat lawmakers on Monday questioned whether the comparison was apt, as the national security unit was empowered with far greater investigative powers than normal police units, including the ability to execute warrantless searches and employ covert surveillance techniques.
Democratic Party lawmaker Helena Wong Pik-wan said: “It seems the government and the police have two main tools – the national security law or draconian colonial laws.
“If you touch on independence, that’s the former … Otherwise, they will still arrest activists first to create a deterrent effect,” she said.
Pro-establishment legislator Frankie Yick Chi-ming disagreed.
“You can argue whether another police unit should have made the arrest instead, but I cannot agree with the argument that the case should be dropped,” he said.
Professor Fu Hualing, dean of HKU’s law school, argued that it was a good sign police were relying less on the national security law, which carries the threat of life imprisonment.
“It’s better for police to invoke section 10 of the Crimes Ordinance,” he said.
But Fu also argued that section 10 was a draconian colonial law that needed to be amended.
HKU’s Cheung said a law that limits freedom of speech or other constitutional freedoms must be sufficiently clear in the guidelines it establishes.
Professor Johannes Chan Man-mun, a former law dean at the same university, also called the scope of the law “too broad”.
“This law was enacted almost 100 years ago. If we still use this standard to evaluate it, I believe it will be very hard for society today to accept it,” he said.
But former Bar Association chairman Ronny Tong Ka-wah, now an adviser on Carrie Lam’s Executive Council, pointed out that the International Covenant of Civil and Political Rights specifies laws can, in fact, limit speech.
Under Article 16 of the convention, the freedom of expression can be restricted as a national security necessity.
“The court will decide whether the law’s restrictions on freedom of speech do not meet human rights standards,” he added.
Additional reporting by Gary Cheung and Tony Cheung
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