For a 23-year old student from Hong Kong, this was not a hypothetical question. Charged with sedition for social media posts made on her personal accounts (including a private Instagram account), Yuen Ching-ting was arrested and appeared in court in June 2023. Her posts were made while she was studying in Japan, raising issues about the extraterritorial application of Hong Kong’s national security laws. What has gone mostly overlooked however, were the extensive conditions on which magistrate Peter Law granted her bail. 

The conditions included various terms preventing Yuen from using social media, which were of doubtful legal basis: undertaking not to make any posts on social media, not to use any device that had social media apps installed, not to make or share any posts that “could reasonably be considered to endanger national security”, to delete all impugned social media posts, not to join any group chats of more than 5 members. But most shockingly, magistrate Peter Law required her to log in to her social media accounts for police access. 

A reminder of first principles: any person charged in a criminal case has the right to bail. The court is empowered by statute to impose bail conditions to ensure a defendant will surrender to custody, will not commit an offence while on bail, and will not interfere with a witness or pervert or obstruct the course of justice. Even though Article 42 of the NSL reverses the presumption of a right to bail, the law does not authorize a magistrate or judge to override a person’s right to silence – or, more precisely, to coerce a person into giving up their right to silence. 

The right to remain silent is fundamental to the criminal justice system. It is protected by common law, by the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights, and corresponding provisions in the Basic Law and the Bill of Rights Ordinance. Leading Hong Kong Court of Final Appeal authorities expounding on the right include Lam Sze Nga and Lee Fuk Hing. 

Per the European Court of Human Rights in Murray v United Kingdom (1996) 22 EHRR 29: 

“the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair trial … By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6″

“the privilege against self-incrimination is an important element in safeguarding an accused from oppression and coercion during criminal proceedings. The very basis of a fair trial presupposes that the accused is afforded the opportunity of defending himself against the charges brought against him. The position of the defence is undermined if the accused is under compulsion, or has been compelled, to incriminate himself. The privilege against self-incrimination is also closely allied to the principle of presumption of innocence protected in Article 6(2) of the Convention in that it reflects the expectation that the State bear the general burden of establishing the guilt of an accused, in which process the accused is entitled not to be required to furnish any involuntary assistance by way of confession.” 

Perhaps one may argue that all this discussion is pointless: if the prosecution had not sought this bail condition, the national security police could just as easily have applied for a warrant to search all of Yuen’s devices, and it is a foregone conclusion that a magistrate would have granted it. The police would have gained access to Yuen’s accounts anyway. But this kind of attitude is antithetical to the rule of law. Actions by state authorities, including judges and magistrates, need to have their basis in law. The legal authority founding an act is just as important as its effects. 

In December 2023, Agnes Chow revealed that the national security police had asked her to travel to mainland China in exchange for return of her passport. There is no provision that authorizes the police to impose such conditions. The police’s extra-legal actions reflect their attitude: that national security trumps law. 

Unfortunately, as evidenced in Yuen’s case, this attitude is one shared by the courts. Ours is not a society ordered by law – but rather by the all-encompassing, amorphous concept of “national security”. No wonder, then, that the national security police feel emboldened to take all sorts of actions which are not authorized by law. 

From its inception, the NSL showed itself to lack many of the characteristics of law. Procedurally, it was imposed without consultation and in breach of the Basic Law. It was such an anomaly that judges considering one of the first related matters did not have an official English version of the law before them. Substantively, it overrides human rights protections, lays a sledgehammer to One Country Two Systems, and is intentionally overbroad and vague. It is a bogus law in so many ways that it feels disingenuous to analyze it seriously – if it were not causing vast widespread suffering, it would be better thought of as a fable of how Lon Fuller’s Rex failed to make law. As the NSL continues to reorder Hong Kong in its own image, Hong Kong’s society is increasing becoming ruled by men, by fear, and by unbridled power. 

As for Yuen, she pleaded guilty to sedition in October 2023 and was sentenced by NSL judge Victor So to 2 months’ imprisonment – joining, as at the date of writing, about 20 other Hong Kongers who have been sent to custody for nothing more than angry Facebook posts. 

Case reference; WKCC 2602/2023; Reasons for Sentence dated 3 November 2023