Since Hong Kong’s National Security Law came into force in July 2020, a number of high-profile cases have been brought under it against leading political dissidents. These include the pending trial against human rights lawyer Chow Hang-tung, Albert Ho and others for their leadership roles in a group that has long organised annual vigils in Hong Kong’s Victoria Park. While specific themes varied each year, these vigils were essentially commemorations of the 1989 Tiananmen protests, which culminated in a massacre by the People’s Liberation Army of civilian protesters on 3–4 June that year.[1] There is also the ongoing trial against pro-democracy media tycoon Jimmy Lai and others,[2] and a completed trial pending judgment against forty-seven pro-democracy politicians and activists who participated in an informal primary election in 2020.[3]
However, not all cases related to national security since July 2020 involved the National Security Law itself. Prosecutors in Hong Kong have also revived the British colonial sedition laws against those who utter or publish anti-government slogans and publications.[4] It is ironic that a British colonial tool of repression is being deployed in this context, given that pro-China voices have spoken of the need for Hong Kong to be ‘decolonised’. This irony was particularly acute in the Hong Kong Court of Appeal case of HKSAR v. Tam Tak Chi,[5] in which the Court preferred a more draconian colonial case law precedent in relation to sedition laws from the 1950s to a more liberal and recent post-colonial case law in the common law world.
The Tam judgment
Tam Tak Chi was a Hong Kong democracy activist and Christian preacher. His activism post-National Security Law led to him being charged with a range of offences, including sedition. Broadly speaking, an act, verbal utterance or publication is considered ‘seditious’ if it intends to incite ‘hatred or contempt or excite disaffection’ against either or both the PRC and Hong Kong governments, raise discontent or disaffection’ among Hong Kong people, or to incite violence.[6] The substance of this statutory provision pre-dates China’s post-1997 rule over Hong Kong: before that time, this sedition offence was directed at verbal utterances and publications against the British and/or Hong Kong governments.
The sedition-related allegations against Tam related to various street stalls he held from January to July 2020. They included him having publicly shouted slogans from Hong Kong’s 2019 protests, including ‘Liberate Hong Kong, revolution of our times’, ‘Stand with Hong Kong. Fight for freedom’, and slogans critical of the police, as well as handing out leaflets critical of the Communist Party of China (CPC), accusing the Hong Kong government of being a dictatorship, and calling for self-determination for Hong Kong.[7]
Tam was convicted at trial and sentenced to a total of forty months imprisonment, twenty-one months of which related to convictions for sedition. He appealed on a number of different legal grounds, all of which failed. Of these, one of them would appear to be revealing insofar as concepts of colonisation and decolonisation may be applicable to Hong Kong. The issue in question concerned whether sedition as a statutory criminal offence can be made where there is no incitement to violence. The Hong Kong Court of Appeal in Tam made clear that it considered Canadian and English case precedents which said that incitement to violence is required for the common law (i.e. unlegislated) crime of sedition but that these precedents were not applicable in this case.[8] This was because Tam was charged with statutory sedition, which, according to the court, displaced common law sedition.[9]
But that still left the Hong Kong Court of Appeal to consider two other cases, which came to different conclusions, in the context of statutory sedition, which dealt with whether there is a need to prove incitement to violence. The first was Fei Yi Ming v. The Crown, a 1952 Hong Kong case from when the city was under British rule.[10] The court in Fei held, following Wallace-Johnson v. R, another sedition case involving the then British colony of Gold Coast (now independent Ghana), where the British Privy Council held that one can be convicted of statutory sedition without needing to prove incitement to violence.[11] The Hong Kong Court of Appeal in Tam kept its description of the facts of Fei to a minimum, mentioning only that a ‘proprietor-publisher and editor respectively of a newspaper’ was convicted of seditious publication.[12]
Such a description does not remotely begin to capture the irony of the court applying Fei as a basis for convicting an anti-CPC dissident. In fact, the newspaper in Fei was Ta Kung Pao, a pro-CPC newspaper in Hong Kong. The article the publication of which was held to be seditious was a republication of a People’s Daily editorial condemning a Hong Kong government crackdown on a pro-communist riot. The editorial repeatedly characterised the Hong Kong government as ‘British Imperialists’, praised the patriotism of the pro-communist agitators and warned the British and the government in Hong Kong of ‘consequences’ for their ‘outrages’.[13]
The second case cited by the court in Tam was much more recent, having been decided in late 2023. Attorney General of Trinidad and Tobago v. Vijay Maharaj concerned a statutory sedition offence in Trinidad and Tobago similar to that being considered in Tam.[14] The case related to challenges to police search warrants over sedition allegations; it was not a criminal prosecution, and Maharaj died before any charges were laid. Nonetheless, the British Privy Council (which is Trinidad and Tobago’s final appellate tribunal) gave two reasons why there should be a need to prove incitement to violence in order for a person to be convicted for sedition.
Both these reasons involved the Privy Council in Maharaj discounting the precedential value of Wallace, on which the judgment in Fei relied. First, Wallace was decided at a time when what is now Ghana was a colony that was not ‘democratic, [or] self-governing’.[15] Second, Wallace came many decades before English common law recognised a concept called the ‘principle of legality’. This concept involved presuming that words in statutes are intended to be subject to basic individual rights, unless there is express language or necessary implication overriding such rights.[16]
Ultimately, the Hong Kong Court of Appeal preferred to follow the British colonial era case of Fei over a more modern narrative, which emphasises decolonisation and human rights that was presented by Maharaj. Even though the court acknowledged that the ‘principle of legality’ is applicable in Hong Kong, it claimed that the presumption of basic rights such as free speech has been overridden by the intent of Hong Kong’s statutory sedition offence. In support of this assertion, it cited a 1970 Hong Kong Legislative Council speech by the colony’s then attorney-general, Graham Sneath. He noted that even though sedition often involved incitement to violence, this had not in itself constituted sedition before its inclusion as a separate ground for finding seditious intent.[17]
China’s desire to ‘decolonise’ Hong Kong
Whatever the legal rights or wrongs of Tam, its approach can be considered against the background of China seeking to ‘decolonise’ Hong Kong following the handover in 1997. Hong Kong has been described as being like ‘a wandering prodigal child returning to the arms of his motherland’.[18] Its people are said to be caricatured by pro-CPC perspectives as having ‘lacked the enlightenment necessary to move beyond their colonial history’.[19] And the process is considered as mandatory by influential Chinese legal scholar Jiang Shigong, who said that ‘the central government’s resumption of sovereignty meant that Hong Kong was bound to experience the pain of the process of decolonization, namely, erasing to a certain extent the residual mental traces of British exercise of sovereignty over Hong Kong [emphasis added]’.[20]
What does China’s vision of ‘decolonising’ Hong Kong involve? On a superficial level, it involves calls for symbolic changes such as wanting to change street names that reference the British colonial era or even arguing that Hong Kong was never a British colony in the first place.[21] More substantively, the PRC’s vision of the ‘decolonisation’ of Hong Kong involves the fundamental reshaping of policy and institutional settings. This would include ending the close relationship between British colonial-era businesses and the Hong Kong authorities, curbing ‘poisonous’ (namely, non-CPC friendly) Hong Kong media, and patriotic education in schools to prevent younger people from supporting Hong Kong independence or any return to British rule.[22]
All these objectives have been or are being achieved. Jardine Matheson and Swire, both stalwart Hong Kong companies during the British colonial era, no longer occupy positions of influence in Hong Kong’s executive government or its legislature, and Beijing has insisted on their political obedience in the way they run their businesses.[23] Media considered unfriendly Chinese and Hong Kong authorities, such as Apple Daily and Stand News, were forced to close in 2021.[24] In 2024, the Hong Kong government announced that it will introduce patriotic education ‘to enhance national identity and appreciation of the richness and beauty of the traditional Chinese culture among the people of Hong Kong, [and] laying a good foundation for national unity and solidarity’.[25]
When it comes to the law and its legal system, China made clear its expectations in the State Council’s 2014 White Paper on Hong Kong’s ‘One Country, Two Systems’ policy.[26] The document stated that China has ‘overall jurisdiction’ over a Hong Kong that ‘got rid of colonial rule’, under which Hong Kong ‘administrators’, including judges, must meet the ‘political requirement’ of ‘loving the country’ and act in accordance with China’s ‘sovereignty, security and development interests’. As for the actual content of laws, pro-Beijing Hong Kong legislator Maggie Chan has called for the removal of colonial terminology such as ‘Her Majesty’ and ‘Secretary of State’.[27] In addition, PRC state media have framed the National Security Law as being part and parcel of the territory’s decolonisation.[28]
‘Decolonised’ ends, colonial means
The Tam case concerned the propagation of a set of slogans and messages that are considered to be unsupportive of Chinese rule over Hong Kong. To the extent that the Hong Kong Court of Appeal has upheld the criminalisation of such public utterances even where no call to violence was involved, it ticks a number of boxes as regards China’s expectations regarding Hong Kong’s ‘decolonisation’. These involve pushing back against the expression of the desire for Hong Kong independence. Hong Kong judges have previously ruled that such slogans as ‘Liberate Hong Kong, revolution of our times’ have separatist connotations.[29] Such rulings are seen as consistent with Hong Kong judges ‘loving the country’ and acting in China’s sovereignty and security interests. Like the use of the National Security Law itself, the ruling involved using the law to advance China’s vision of Hong Kong’s ‘decolonialisation’.
Nonetheless, it is hard to avoid finding irony in ‘decolonising’ through charging its opponents with sedition, a convenient legal tool of oppression used by British colonial government. Before the National Security Law came into force, the Hong Kong authorities had not prosecuted anyone for sedition since the 1967 riots.[30] Its revival subsequent to the National Security Law smacks of recolonialisation rather than ‘decolonisation’. This in itself already sits uncomfortably with calls for Hong Kong laws to be ‘decolonialised’ by removing colonial-era references in legislation: what is the point of less ‘colonial’ language when the law itself replicates one of the oppressive aspects of British colonial rule?
In Tam, given the chance to adopt the post-colonial narrative so strongly suggested by Maharaj, the Hong Kong Court of appeal chose instead to ‘recolonise’ by following Fei. This is the stuff of black comedy when one considers that Fei was a case in which colonialists were seeking to oppress and persecute supporters of the Communist Party of China. Colonialism in the name of ‘decolonisation’ has now come full circle.
Notes
[1] James Lee, ‘Nat. security trial for Tiananmen crackdown vigil group members to begin November at earliest’, Hong Kong Free Press, 19 February 2024, online at: https://hongkongfp.com/2024/02/19/nat-security-trial-for-tiananmen-crackdown-vigil-group-members-to-begin-november-at-earliest/
[2] Jessie Pang and Edward Cho, ‘National security trial of Hong Kong media tycoon Jimmy Lai: what’s happened so far’, Reuters, 10 April 2024, online at: https://www.reuters.com/world/asia-pacific/national-security-trial-hong-kong-media-tycoon-jimmy-lai-whats-happened-so-far-2024-03-04/
[3] Brian Hong, ‘Hong Kong 47: Who are the key defendants in national security trial over Legco primary and what do they claim?’, South China Morning Post, 10 December 2023, online at: https://www.scmp.com/news/hong-kong/law-and-crime/article/3244511/hong-kong-47-who-are-key-defendants-national-security-trial-over-legco-primary-and-what-do-they
[4] Eric Lai, ‘Hong Kong’s sedition law is back’, Diplomat, 3 September 2021, online at: https://thediplomat.com/2021/09/hong-kongs-sedition-law-is-back/
[5] [2024] HKCA 231 (‘Tam’).
[6] Crimes Ordinance (Hong Kong), sections 9(1) and 10(1).
[7] Tam (note 5 above), paragraphs 13 to 36.
[8] Boucher v. The King [1951] 2 DLR 369; R v. Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1990] 1 QB 429.
[9] Tam (note 5 above), paragraph 82.
[10] (1936) 36 HKLR 133 (‘Fei’).
[11] [1940] AC 231 (‘Wallace’).
[12] Tam (note 5 above), paragraph 70.
[13] Fei (note 10 above), pp. 138–9.
[14] [2023] UKPC 36 (‘Maharaj’).
[15] Ibid., paragraph 43.
[16] Ibid., paragraph 45.
[17] Tam (note 5 above), paragraph 79.
[18] Law Wing Sang, ‘Reunification discourse and Chinese nationalisms’, in Gary Chi-hung Luk (ed.), From a British to a Chinese Colony? Hong Kong Before and After the 1997 Handover, Berkeley, USA: Institute of East Asian Studies, University of California, Berkeley, 2017, p. 236.
[19] Gina Anne Tam, ‘Colonialism and nationalism in Hong Kong: Towards true decolonization’, Historical Journal, vol. 67 (2024): 169–77, at p. 169.
[20] 強世功, 中國香港: 文化與政治的視野, Hong Kong: Oxford University Press, 2008; English translation published as Jiang Shigong, China’s Hong Kong: A Political and Cultural Perspective, Singapore: Springer, 2017, p. 194.
[21] Karen Cheung, ‘“Decolonise” Hong Kong street names, suggests member of Beijing’s top advisory body’, Hong Kong Free Press, 5 March 2018, online at: https://hongkongfp.com/2018/03/05/decolonise-hong-kong-street-names-suggests-member-beijings-top-advisory-body/. Priscilla Leung, ‘Was Hong Kong a colony? An international law perspective’, Hong Kong Lawyer, August 2022, online at: https://www.hk-lawyer.org/content/was-hong-kong-colony-international-law-perspective
[22] Fan Lingzhi, Wang Wenwen and Chen Qingqing, ‘Hong Kong has not acted enough to detach from colonial past, experts argue’, Global Times, 4 September 2019, online at: https://www.globaltimes.cn/content/1163630.shtml
[23] Leo Lewis, Primrose Riordan, Alice Woodhouse, Nicolle Liu and Stefania Palma, ‘Hong Kong’s historic businesses face an uncertain future’, Financial Times, 18 February 2021, online at: https://www.ft.com/content/3ab1091c-8ebc-47a9-b57c-0264ab75e677
[24] Helen Davidson, ‘Free media in Hong Kong almost completely dismantled – report’, Guardian, 26 April 2022, online at: https://www.theguardian.com/world/2022/apr/26/free-media-in-hong-kong-almost-completely-dismantled-report
[25] Hong Kong Government, ‘Government establishes working group on patriotic education’, 8 April 2024, online at: https://www.info.gov.hk/gia/general/202404/08/P2024040800562.htm
[26] Information Office of the State Council, People’s Republic of China, ‘The practice of “One Country, Two Systems” policy in the Hong Kong Special Administrative Region’, June 2014, official English version online at: https://english.www.gov.cn/archive/white_paper/2014/08/23/content_281474982986578.htm
[27] ‘Lawmaker urges authorities to speed up work on decolonizing Hong Kong’s laws’, Standard, 16 November 2022, online at: https://www.thestandard.com.hk/breaking-news/section/4/197208/
[28] See for example Thomas Hon Wing Polin, ‘National security law for Hong Kong: Bane to subversives, boon for citizens’, Global Times, 30 June 2020, online at: https://www.globaltimes.cn/content/1193021.shtml; James Smith, ‘NSL ends colonial legacy of Hong Kong whilst preserving its greatness’, Global Times, 30 June 2022, online at: https://www.globaltimes.cn/page/202206/1269415.shtml; Md Enamul Hassan, ‘National Security Law paves the way for more prosperous HK’, China Daily, 3 July 2020, online at: https://www.chinadaily.com.cn/a/202007/03/WS5efe731ea310834817256e5e.html; Lau Siu-kai, ‘“De-decolonization” achieves remarkable results but is far from complete’, China Daily, 1 September 2022, online at: https://www.chinadailyhk.com/hk/article/288215
[29] HKSAR v. Tong Ying Kit [2021] HKCFI 2200.
[30] Lai (note 4 above).
