Written by Bobby for Hong Kong Legal/ Politics Section.
What is 'freedom of speech' to Hong Kong? A basic right in the West is but a passing thought in some other countries. There is an evident opposition to free-speech by authorities in Hongkong. However, it is worth pondering whether Hongkongers are allowed to express their thoughts abroad, away from the reach of their homeland. This article examines just that.
Expressing your political views online sounds as ordinary as it can get, but have you ever considered that it is something that can get you arrested?
From 2018 to 2022, a girl from Hong Kong uploaded 13 posts advocating ideas such as Hong Kong independence and the collapse of the Chinese Communist Party on her personal social media accounts. 11 of these posts were uploaded when she was studying overseas in Japan.[1] She was 23 years old when she was arrested in Hong Kong in March 2023. The prosecutors claimed that her actions were performed with ‘seditious intention.’[2]
In July 2020, the National Security Law (“NSL”) was implemented in Hong Kong. NSL actions include 'secession', 'subversion', 'terrorism' and 'collusion with foreign forces', with the purpose of containing anti-government speeches and activities.[3]
However, instead of being charged for crimes under the NSL, the student was charged under Cap. 200 Crimes Ordinance for ‘inciting hatred or contempt against the government or stirring up hostility towards them, leading to rebellion or secession.’ This is the first time in decades prosecutors have invoked this law.[4] She was sentenced to two months in prison.
Her sentencing sparked attention throughout international Hong Kong communities. Because this case is the first extraterritorial case related to ‘seditious intention’ since the implementation of NSL in Hong Kong, immigrants started to worry about further extraterritorial application of laws in Hong Kong. One relevant issue is that some of the clauses are either overly vague or broad.
It is questionable whether posting mere slogans on one’s personal social media account can really arouse public discontent with the government, gradually 'stirring up hostility towards them, leading to rebellion or secession.' By the principle of lenity, whenever the law is ambiguous or vague, the court should apply it in the way that is most favourable to the defendant, not the claimant. If the court believes such an act would harm national security, freedom of speech will face increased scrutiny, raising further concerns about the boundaries between expression and perceived threats to security in the context of the NSL or related laws, even outside of Hong Kong.
Moreover, from a more fundamental perspective, the legitimacy of the ‘incitement’ article in Hong Kong is arguable. Back in 2009, the UK abolished the domestic ‘incitement’ article. While laws in other jurisdictions have no direct effect on Hong Kong, courts in Hong Kong always refer to cases or articles from other common law jurisdictions. Therefore, it is worth discussing whether the ‘incitement’ article should be kept in Hong Kong in the future.
The form of punishment or length of imprisonment is also questionable. The court may consider making use of discretion to mitigate punishment as this is the first time a defendant has been found guilty of publishing materials with seditious intent outside of Hong Kong especially since there has been no precedent.
The selective enforcement process in this case is doubtful as well. According to barrister-at-law Frankie Siu, the local government has previously denied aliens from entering Hong Kong who were seen as unwelcome in political aspects.[5] However, the government’s attitude towards local residents was more aggressive. This student was arrested and sent to jail. In the same vein, whether the double standards set by the Hong Kong government are justified, remains dubious.
This event is significant in pushing overseas Hong Kong residents into a higher level of self-censorship. Since the NSL’s implementation, people who commit political crimes locally as well as influential political activists make up the primary arrested group. Although the anxiety regarding potential arrests for actions abroad has circulated within the Hong Kong resident communities, the threat might be imaginary and speculative after all.[6]
Unfortunately, the recent sentencing of this student illustrates that the perceived threat has gradually evolved into a tangible reality. Hong Kong residents are increasingly worried about whether their actions will break the NSL or other related laws, even outside of their jurisdiction. While some migrants abroad may have made the decision not to return to Hong Kong in their lifetime, those who want to visit their home again shall have to practise stricter self-censorship, especially online.
So as long as the government insists on imposing the restrictions on freedom of speech so strictly, the question of how pro-democratic Hongkongers can cope with such adversity remains.
References
[1] William Yang, "Hong Kong student arrested over social media posts in Japan" DW (Taiepi, 24 April 2023) <https://www.dw.com/en/hong-kong-student-arrested-upon-return-from-japan-sparks-fears-over-security-laws-reach/a-65418216> accessed 15 November 2023
[2] Ibid
[3] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
[4] Cap. 200 Crimes Ordinance, Hong Kong
[5] Iris Tong, "Hong Kong Sentences Woman to 2 Months in Prison for Posts Uploaded in Tokyo" Voice of America (10 November 2023) <https://www.voanews.com/a/hong-kong-sentences-woman-to-2-months-in-prison-for-posts-uploaded-in-tokyo/7349919.html> accessed 15 November 2023
[6] Helen Davidson, "‘Gangster tactic’: the true aim behind Hong Kong’s pursuit of overseas dissidents" The Guardian (Taiepi, 17 August 2023) <https://www.theguardian.com/world/2023/aug/17/gangster-tactic-the-true-aim-behind-hong-kongs-pursuit-of-overseas-dissidents#:~:text=Overseas%20Hongkongers%20are%20fearful%2C%20and,particular%20jurisdictions%20when%20travelling%20internationally.> accessed 15 November 2023
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