As responsible lawyers, we read the latest sedition judgment (WKCC 928/2022, 27 Oct 2022) to consider the judge’s legal analysis before expressing outrage. Spoiler: there is only oppression charading as law.

Note first off this case was in the lowest courts, the magistracy. Magistrate Cheng Nim-chi isn’t known for being a bright legal mind – in 2019 he passed out unlawful assembly convictions for mere presence.

As did judges in previous cases, Cheng dismissed arguments that the sedition law was unconstitutional for abrogating the freedom of speech.

He also refused to look at jurisprudence from other jurisdictions, or internationally accepted principles.

Let’s look at what Cheng considered seditious:

1) Criticizing judges for not ruling according to law in a Youtube video

2) Criticizing a judge for acting improperly and humiliating a defence lawyer in a Youtube video

3) Venting about the magistrate who stopped courtgoers from clapping in Chow Hang Tung’s hearing in a Youtube video

4) Commenting that Hong Kong courts were acting as tools of oppression in a Youtube video

5) Clapping in court (during Chow’s hearing) and thereafter commenting that the magistrate had lost his conscience in the courtroom

6) Comments or words of protest upon being stopped from clapping in court

There’s not much by way of legal analysis that we can offer here. Just know that any criticism of Hong Kong courts, including throwaway comments made in the heat of the moment, is now criminal and can lead to imprisonment of up to 2 years.

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1. On 7 September 2022, five members of the executive council of the General Union of the Hong Kong Speech Therapists were convicted by Judge Kwok Wai-kin of the District Court of conspiring to print, publish, distribute, display, and/or reproduce “seditious publications”. All five had been arrested on 22 July 2021 and held in pre-trial custody ever since, i.e. for 10 months prior to their conviction. The impugned publications were children’s books featuring sheep living together in a village who were threatened by wolves. 
2. In this judgment, the Hong Kong court completely abandoned its obligations to protect fundamental rights, and fully adopted the government’s narrative in disparaging the widely supported pro-democracy movement in 2019. 

The court’s abject refusal to protect fundamental rights 

3. The five union leaders were charged for, among other things, having an intention “to bring into hatred or contempt or to excite disaffection against the Central Authorities and/or the Government of the Hong Kong Special Administrative Region”. Despite the defence’s argument that the colonial language in the Crimes Ordinance could only be construed to mean the Hong Kong government and not the Central People’s Government, the court adopted muddled reasoning to rule that national security was within the purview of the Central People’s Government and hence the charge could be brought. Given the extremely wide net that “national security” casts over society – encompassing children’s books, applause in court, uttering slogans, and more – this marks another nail in the coffin of One Country Two Systems. Regrettably, this nail was hammered in by Hong Kong’s own judges. 
4. As a signatory, Hong Kong has legal obligations to implement the International Covenant on Civil and Political Rights (“ICCPR”). In addition, under Article 39 of the Hong Kong Basic Law, the courts are obliged to give effect to the ICCPR. However, the court in this case departed from international norms and Hong Kong’s own legal obligations:-
   1. Less than two months ago, international human rights experts on the United Nations Human Rights Committee had reviewed Hong Kong’s compliance with the ICCPR. In their Concluding Observations, they called for Hong Kong’s sedition laws to be repealed as they were in violation of the legitimate right to freedom of speech. This point was raised by the defence in court, but was completely omitted in the judgment. We can only conclude that the court intentionally ignored the Concluding Observations, thus deliberately violating human rights protected in the ICCPR. If the court was of the view that addressing the Concluding Observations exceeded the ambit of its duty under the Basic Law, it should have explained why. We submit that even if so, the court should have justified its refusal to adopt such wider protections of rights. 
   2. After considering the legislative history of Hong Kong’s sedition offence, the court declined to confine the “sedition” charge to situations of violence or public disturbance or disorder (which would at least have brought it in line with the few common law jurisdictions which have not yet repealed the sedition offence). Instead, the court decided, without elaboration, that speech such as “spreading rumours, hatred and disinformation” could effectively be treated as “weapons”.
   3. The court addressed constitutional arguments about the sedition charge, including the proportionality test, which it had neglected to do on the last occasion. However, the court rejected the Siracusa Principles on the Limitations and Derogation Provisions in the ICCPR, adopted by the United Nations Economic and Social Council in 1984, claiming the principles were “issued 38 years ago and likely to be outdated”. Ironically, the court did so while convicting the union leaders for an offence which originated in the Seditious Publications Ordinance of 1914. More importantly, this is in violation of precedent as the Siracusa Principles had been relied upon by higher courts in Hong Kong in previous occasions, including by the Hong Kong Court of Final Appeal. The court also opined that “overseas statutes, case law, law commission working paper, academic commentaries” were of little relevance. 
5. The court went on to conclude that by reading the story books, children would be led to believe “the PRC Government is coming to Hong Kong with the wicked intention of taking away their home and ruining their happy life with no right to do so at all”. There was no reasoned consideration of defence arguments such as that the books were simply fables, advocating universal values, enabling children to exercise their own judgment, or that the books were mere criticism of the government. 
6. In Leung Kwok Hung v HKSAR, the Court of Final Appeal recognized the cardinal importance of the freedom of speech, which enables citizens to “voice criticisms, air grievances, and seek redress”. With every sedition conviction, the Hong Kong courts step farther away from these professed values. 

The court’s adoption of the government narrative 

7. In the judgment, the court took judicial notice of violence adopted by a minority of protestors in 2019, while making no mention at all of the lack of government accountability to which this was a response, as well as ignoring or glossing over numerous incidents of police brutality and impunity (noting only that “a rioter was shot” on two occasions, while ignoring police collusion with triads in Yuen Long on 21 July 2019, and a violent attack by the police in Prince Edward train station on 31 August 2019).  
8. The court’s characterization of the social movement in 2019 also shows a deep fear of expressions of the popular will. The court regarded mass protests as “riotous activities” involving tens of thousands of people who demonstrated that “they did not recognize the sovereignty of the People’s Republic of China” over Hong Kong, and that the “seeds of unrest” had gone underground after the imposition of the national security law. This continues a trend in recent years of political views taking the place of legal reasoning in court judgments. The court saw demonstrations not as legitimate expressions of popular will, but as highly volatile and threatening situations. The court clearly does not value freedom as much as it does “law and order” at any cost. With such preconceptions, it was a foregone conclusion that the sedition charge would be held to pass the proportionality test for restricting the fundamental freedoms of expression and publication. 
9. The judge in this case, Judge Kwok Wai-kin, had previously praised a pro-government defendant who stabbed three citizens putting up pro-democracy posters in 2019, leaving them gravely wounded, for showing “noble qualities”. Subsequently, the judiciary removed him from trying protest cases for a time. However, he has now been appointed by the Chief Executive to hear national security cases. It appears that his prejudice against the popular movement in 2019 has been rewarded by the Chief Executive – a clear breach of the principles of separation of powers and judicial independence. 
10. To date, charges of sedition have resulted in a 100% conviction rate. With these latest  convictions based on children’s books involving sheep, we expect that the police will only be emboldened in arresting and bringing charges of sedition for any form of criticism against the government. 
11. The court has clearly failed to mediate the effect of an authoritarian government and joined the side of the oppressors. And yet, supporters of the government are still holding out the presence of overseas judges on the Court of Final Appeal as a sign of their confidence in Hong Kong’s rule of law. We again implore those overseas judges who are still labouring under the illusion that Hong Kong courts are independent of the government to open their eyes to the evidence before them. If the Hong Kong courts are determined to make themselves international pariahs, they should be so treated. 

9 September 2022 

Hong Kong Rule of Law Monitor

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No surprise – Hong Kong courts have found AGAINST Jimmy Lai again. In HCMP 738/2020, the High Court refused his application for judicial review of police search warrants. This has vast implications for the freedom of the press in Hong Kong.

In August 2020, shortly after the national security law was introduced, police arrested Jimmy Lai, raided Apple Daily, and seized evidence pursuant to a court warrant, including 2 of Lai’s smartphones.

The 2020 warrant did NOT authorize seizure of journalistic materials. In 2022, the police applied for a further warrant under the national security implementation rules, which purported to authorize police to examine journalistic materials.

Journalistic material is material acquired or created for the purposes of journalism (IGCO (Cap. 1) s 82). It has a special status because “it forms the backbone of the freedom of the press and must be given the greatest possible protection from seizure, otherwise the press may be inhibited from informing the public of matters it is entitled to know” (So Wing Keung, CACV 245/2004, 11 Oct 2004).

Thus, in pre-NSL HK, journalistic material was given special protection. The police could not examine journalistic material seized under a magistrate’s warrant; they had to apply for a production order from a District Court or High Court judge (IGCO s 84).

The High Court judgment yesterday, however, affirms that the national security law creates a SEPARATE and ADDITIONAL regime for search warrants. Thus, the statutory protection for journalistic material in IGCO does not apply.

Under the national security law implementation rules, a magistrate can issue a warrant for seizure of material that is “evidence of an offence endangering national security” (Sched 1 s 1).

This judgment yet again affirms that with the national security law, all common law or statutory protections of rights and freedoms that we have always known go out the window.

With this judgment (but subject to appeal), the police can view any journalistic material saved on Lai’s phone. This is a terrifying prospect for any journalist or anyone who speaks to a journalist.