In another weaponised legal action against the Hong Kong Alliance in Support of Patriotic Democratic Movements in China (which was well-known for organizing the annual vigils to mark the Tiananmen Square massacre, before being forced to disband in 2021), three members of the group were convicted and sentenced to four and a half months in jail in March 2023 for refusing the police’s order to hand over information about the Alliance’s operations. Chow Hang-tung, a barrister and prominent pro-democracy activist, was amongst the three who were convicted.

This case is an alarming example of a civil society group in Hong Kong being accused of acting as a “foreign agent” but without the prosecution having to disclose who the group is accused of working for.

In August 2021, the police issued a notice under Article 43 of the NSL, requiring the Alliance to disclose extensive information about its funding, activities, and staff. The notice was based on allegations that the Alliance was a “foreign agent”. The police required the Alliance to provide information going back to 2014 and even back to 1989 – i.e. well before the enactment of the NSL.

The defendants argued that the police’s order was illegal because the Alliance was not a “foreign agent”. They asked the police to disclose the identity of the alleged “foreign principal”; however, this was denied by the magistrate who allowed the police to conceal such information to avoid “hindering” the police’s investigations.

Without knowing the identity, it was practically impossible for the defendants to prove that the Alliance was not an agent of the alleged (unnamed) foreign organisation. The court’s ruling stripped away the defendants’ right to a fair trial.

Another disturbing feature of the case is that, despite the NSL supposedly not being retrospective (see Article 66), the magistrate declared that “the concept of national security is… a continuation of series of acts with accumulative and generative aim to an ultimate end”. The court therefore held that there was no obstacle to the police ordering the provision of information dated many years before the enactment of the NSL. This opens up a dangerous back door for the NSL to be applied retrospectively. Retrospective laws undermine the rule of law by unfairly changing the laws relating to certain situations; they are contradictory to the rule of law principle which requires the law is capable of being known to everyone so that everyone can comply. 

(This story originally appeared in the March-April 2023 edition of our newsletter).