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Departure from International Human Rights Law and Comparative Best Practice: HKSAR v Tong Ying Kit

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Abstract

This article examines the verdict in HKSAR v Tong Ying Kit, the first criminal trial under the new National Security Law's secession and counter-terrorism criminal provisions. The article uses international human rights law and comparative law on counter-terrorism to argue that the verdict ignores rights-based jurisprudence, which could reconcile the tensions between human rights protec-tions and safeguarding national security. As a result, the ruling sets an example of the local courts' failure to integrate international human rights law and comparative best practice and thus to mount an effective, rights-based response to the enforcement of the national security law. As Tong decided not to file an appeal, his case serves as a disturbing precedent that will influence other national security trials that are already making their way through the courts.
D  I
H R L  C
B P: HKSAR  T
Y K*
Yan-ho Lai and Thomas E. Kellogg**
This article examines the verdict inHKSAR v Tong Ying Kit, the rst criminal
trial under the new National Security Law’s secession and counter-terrorism
criminal provisions. The article uses international human rights law and com-
parative law on counter-terrorism to argue that the verdict ignores rights-based
jurisprudence, which could reconcile the tensions between human rights protec-
tions and safeguarding national security. As a result, the ruling sets an exam-
ple of the local courts’ failure to integrate international human rights law and
comparative best practice and thus to mount an effective, rights-based response
to the enforcement of the national security law. As Tong decided not to le
an appeal, his case serves as a disturbing precedent that will inuence other
national security trials that are already making their way through the courts.
1. Introduction
Just hours after the new national security law (NSL) came into effect on
1 July2020, dozens of protesters were arrested for allegedly breaching the
NSL. Tong Ying Kit was one of them. Instead of marching along with the
other protesters, Tong drove his motorcycle while carrying a banner bear-
ing the protest slogan “Liberate Hong Kong, Revolution of Our Times”. He
drove his motorcycle around police check lines, at times at high speed, earn-
ing cheers from some in the crowd as he did so. Tong eventually collided
with a group of police ofcers, injuring three. He was charged with inciting
others to secession and with terrorism under arts 21 and 24 of the NSL.
* This article draws on the authors’ initial analysis of the case in their recent brieng paper: The
Tong Ying Kit NSL Verdict: An International& Comparative Law Analysis (Georgetown Center for
Asian Law 2021). The authors thank James V Feinerman, Michael C Davis, Carole J Petersen
and Kent Roach for their insightful comments on the earlier drafts of the brieng paper. This
article is based on that brieng paper, although it has been extensively revised and updated.
** Yan-ho Lai is the Hong Kong Law Fellow at Georgetown University’s Center for Asian Law and
PhD Candidate in Law from SOAS University of London in spring 2022. Thomas E. Kellogg
is the Executive Director of the Georgetown Center for Asian Law. Kellogg is also an Adjunct
Professor at Georgetown University Law Center and holds a JD from Harvard.
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466 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
Since the imposition of the NSL, the Hong Kong Government has
taken several steps to limit the due process rights of NSL defendants,
including their rights to bail, a jury trial and access to a counsel of their
choice.1 Tong was no exception. He was placed in pretrial detention for
more than 11 months, and a jury trial was denied, although his right
to counsel of his own choosing was respected.2 On 27 July2021, Tong
became the rst person to be found guilty of inciting secession and terror-
ism under the NSL. He was sentenced to nine years in prison.3
The Court of First Instance (CFI) verdict is the rst issued in an NSL
case and is therefore of utmost importance to gaining an understanding of
how the courts will deal with the many challenges posed by the NSL. This
article analyses the verdict in Tong’s case from a perspective of international
human rights and comparative law. We discuss why and how the verdict
fails to follow the international and comparative jurisprudence on protect-
ing human rights while safeguarding legitimate national security interests.
We argue that, in the Tong Ying Kit verdict, the court failed to mount an
effective, rights-based response to the NSL. International human rights law
and best practice, which the court did not integrate into their verdict, have
been recognised by domestic human rights jurisprudence since the 1997
Handover. Instead, the court relied on a series of obscure and outdated
precedents that often seem cherry-picked to reach a particular result.4
Following this introduction, the article includes sections on Tong’s
incitement charge, his terrorism charge and a brief conclusion about the
reasoning and implications of the verdict. With the incitement charge,
we argue that the court failed to engage in any human rights analysis
whatsoever, even though Tong was charged with a crime related to his
right to freedom of expression. If the court had engaged in a rights-based
analysis of the facts of Tong’s case, referring to the Basic Law, the Inter-
national Covenant on Civil and Political Rights (ICCPR), judgments
from the European Court of Human Rights (ECtHR), the 1984 Siracusa
Principles on Limitation and Derogation Provisions in the ICCPR (the
1 Lydia Wong, Thomas E Kellogg and (Eric) Yan-ho Lai, “Hong Kong’s National Security Law and
the Right to a Fair Trial: AGCAL Brieng Paper” (Georgetown Center for Asian Law, 2021),
available at https://www.law.georgetown.edu/law-asia/wp-content/uploads/sites/31/2021/06/
HongKongNSLRightToFairTrial.pdf (visited 16 December2021).
2 Thomas E Kellogg and (Eric) Yan-ho Lai, “Death by a Thousand Cuts: Chipping Away at
Due Process Rights in HK NSL Cases” Lawfare (28 May2021), available at https://www.law
fareblog.com/death-thousand-cuts-chipping-away-due-process-rights-hk-nsl-cases (visited 16
December2021).
3 HKSAR v Tong Ying Kit, HCCC 280C/2020 [2021] CFI 2239 (Reasons for sentence), [46].
4 The authors made a similar point immediately after the Tong verdict was issued. See Yan-ho Lai
and Thomas E Kellogg, “Judgment in Tong Ying Kit’s Case Sets Dangerous Precedent, Ignores
Human Rights Law” Hong Kong Free Press (31 July 2021), available at https://hongkongfp.
com/2021/07/31/judgement-in-tong-ying-kits-case-sets-dangerous-precedent-ignores-human-
rights-law/ (visited 16 December2021).
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Vol 52 Part 2 Departure from International Human Rights Law 467
Siracusa Principles) and the 1996 Johannesburg Principles on National
Security, including both Freedom of Expression and Access to Informa-
tion (the “Johannesburg Principles”), it would have been almost impossi-
ble to nd Tong guilty of inciting secession. Section3 uses the framework
of the United Nations Security Council (UNSC) Resolution 1566 and
other comparative jurisprudence to argue that Tong’s actions would gen-
erally not be considered an act of terrorism in other jurisdictions or under
international law.
2. The Incitement Charge
The incitement charge against Tong Ying Kit does not conform to the
human rights protections found in the Basic Law and is also inconsistent
with Hong Kong’s obligations under the ICCPR. The Basic Law protects
the right to free speech and makes clear that the ICCPR remains in force
in Hong Kong with limited exceptions. Free expression is protected by
art 19 of the ICCPR. The United Nations Human Rights Committee
(UNHRC) and other key regional and international bodies have sought
to concretise the requirements of art 19 to ensure that the core right to
free expression is given the fullest possible protection by states. To com-
ply with their obligations under the ICCPR, state parties can only impose
restrictions on basic rights when exercising those rights causes a specic
and articulable threat to national security. We argue that, in Tong’s case,
this high threshold was not met.
This section begins with an analysis of the framework of free speech
protections under the Basic Law and international human rights law,
then examines the consistency between the NSL provisions on inciting
secession and that rights framework and nally explains its implications
on Tong’s case.
(a) The Legal Framework: The Basic Law and International
Human Rights Law
The right to free expression is protected by art 27 of the Basic Law and art
19 of the ICCPR, which remain in force and are implemented in Hong
Kong under art 39 of the Basic Law. Undoubtedly, the Basic Law and its
human rights provisions apply to all criminal cases in the city, with no
exception for NSL cases. Since the Basic Law directly incorporates the
ICCPR and other international human rights treaties into local law, the
key NSL provisions must be read consistent with those conventions.
Provisions of the NSL reinforce this view. Article 1 of the NSL states
that the NSL is enacted “in accordance with” both the People’s Republic
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468 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
of China (PRC) Constitution and the Basic Law. Article 4 also states
that rights protection in provisions of the Basic Law and the ICCPR as
applied to Hong Kong remain applicable to NSL cases. There is no sug-
gestion in the text of the NSL that the NSL is placed above the Basic
Law, even though art 62 places the NSL above all other local laws in cases
of conict. According to Fu, the Basic Law upholds its superior status in
Hong Kong’s legal framework.5 Therefore, the NSL must be interpreted
and enforced in ways that harmonise apparent tensions with the Basic
Law. In HKSAR v Lai Chee Ying, the Court of Final Appeal (CFA) held
that the Basic Law and the NSL should be viewed as “a coherent whole”,
with the provisions of the two laws being read whenever possible as in
harmony with each other; thus, the courts are still able to, and should,
make efforts to reconcile apparent conicts between the human rights
provisions in the Basic Law and the criminal and other NSL provisions.6
Human rights protections under the Basic Law, including free speech
and free expression protections, should be consistent with the ICCPR
under art 39 of the Basic Law. Article 19(3) of the ICCPR provides that
national security can be a legitimate ground for restricting the exercise of
free speech. Yet the scope of national security must be appropriately and
narrowly dened, in accordance with the jurisprudence of the UNHRC
and ECtHR. In 1994, in its ruling on a complaint led by a Korean stu-
dent activist to the UN, the UNHRC stressed that governments cannot
use national security as a blank cheque for restricting free expression and
association. Rather, they must “specify the precise nature of the threat”
to national security that justies the specic restriction.7
In 2011, the UNHRC’s General Comment on art 19 of the ICCPR
restated that state parties have to take “extreme care” to ensure that
any provisions relating to national security are drafted and enforced in
“a manner that conforms to the strict requirements” of the legitimate
grounds provided by art 19(3) of the ICCPR.8 The UNHRC further
stated that the state parties cannot restrict key forms of peaceful political
speech, including “any advocacy of multi-party democracy, democratic
5 Fu Hualing, “ANote on the Basic Law and the National Security Law” HKU Legal Scholarship
Blog (12 August 2020), available at https://researchblog.law.hku.hk/2020/08/hualing-fu-on-
relationship-between-hong.html (16 December2021).
6 HKSAR v Lai Chee Ying [2021] HKCFA 3, [41]–[44].
7 Tae-Hoon Park v Republic of Korea [1998] Comm No. 628/1995, 20 October1998, [10.3]; Carole
J Petersen, “Prohibiting the Hong Kong National Party: Has Hong Kong Violated the Interna-
tional Covenant on Civil and Political Rights?” (2018) 48 HKLJ 3, 789–805; Carole J Petersen,
“Article 23 of the Basic Law: International Law and Institutions as Sources of Resilience” in
Cora Chan and Fiona de Londras (eds), China’s National Security: Endangering Hong Kong’s Rule
of Law? (Oxford: Hart Publishing 2020) p 241.
8 UNHRC, General Comment No. 34, CCPR/C/GC/34, para 30.
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Vol 52 Part 2 Departure from International Human Rights Law 469
tenets, and human rights”, on national security grounds.9 States should
only employ the “least intrusive instrument” possible and conform to
the principle of proportionality to achieve their goal.10 In short, refer-
ence to the notion of “national security” in the ICCPR does not end an
inquiry into whether restricting free speech shall be justiable. Instead,
a deeper analysis of the necessity and proportionality of that restriction
is necessary.
Apart from UNHRC’s analysis, two key soft law documents offer more
detailed guidance on balancing free expression and national security
concerns: the Siracusa and the Johannesburg Principles. Principle 29 of
the Siracusa Principles states that, instead of abusing its national security
powers to crack down on speech that it does not like, a state must limit
its use of national security measures to combat force or the threat of force
that endangers the existence of the nation, its territorial integrity or its
political independence.11 Principle 6 of the Johannesburg Principles fur-
ther qualies the use of national security measures by a three-pronged
test:
“[E]xpression may be punished as a threat to national security only if a
government can demonstrate that:
(a) The expression is intended to incite imminent violence;
(b) It is likely to incite such violence; and
(c) There is a direct and immediate connection between the expres-
sion and the likelihood of occurrence of such violence”.12
This three-pronged test, which is drawn from the 1969 US Supreme
Court case Brandenburg v Ohio,13 provides a rigorous and effective stand-
ard by which speech can be judged. The test states that political speech
will generally not be subject to criminal sanction unless all three prongs
of the test are met. Following the Sixth Principle, most peaceful political
speech per se should not be capable of threatening national security and
therefore should not be the subject of criminal prosecution.
As soft laws, both the Siracusa and Johannesburg Principles do not
enjoy ofcial legal standing. Nonetheless, they should be considered
highly authoritative statements of best practice in balancing national
security and human rights. The UNHRC endorsed the Siracusa Princi-
ples the year they were released, and the Johannesburg Principles have
9 Ibid., para 23.
10 Ibid., paras 33–35.
11 The Siracusa Principles, Principle 29.
12 The Johannesburg Principles, Principle 6.
13 [1969] 395 US 444.
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470 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
been cited approvingly by other key UN human rights bodies.14 Both
documents have been directly applied to rulings of the ECtHR and by
some national-level courts, enhancing their legal stature and authorita-
tiveness.15 The Hong Kong Government and courts have also made direct
reference to both sets of Principles. In at least two court judgments, Hong
Kong courts have cited the Siracusa Principles,16 and during the debate
over the government’s proposed national security legislation in 2003, the
government stated that “the Johannesburg Principles provide a useful
benchmark against which the proposals may be judged” and claimed that
its bill was “broadly in line with the principles”.17
Key decisions of the ECtHR provide invaluable comparative insights
into striking the balance between national security and rights protections.
These decisions are particularly relevant since the court has weighed in
directly on how states should handle speech related to territorial inde-
pendence. In Stankov and the United Macedonian Organisation Ilinden v
Bulgaria, the Court ruled that “advocating for territorial changes in
speeches and demonstrations does not automatically amount to a threat
to the country’s territorial integrity and national security”, and thus the
prohibition of public assemblies that might have attendants or organisers
calling for autonomy or secession is not justiable.18 In other cases, the
court has ruled against member states that have sought to criminalise
peaceful political speech, stressing that member states must allow their
citizens to speak freely unless they are directly inciting violence.19
Though Hong Kong courts are not bound by ECtHR decisions, they
have at times drawn on those decisions in their own jurisprudence. For
instance the CFA once noted that ECtHR verdicts are of “high persuasive
authority” in Hong Kong.20 Local courts should continue the practice of
14 Then-UN Special Rapporteur on Freedom of Opinion and Expression Abid Hussain referenced
the Johannesburg Principles in various reports; the UN Commission on Human Rights similarly
made a note of the Johannesburg Principles in its resolutions on Freedom of Expression.
15 The ECtHR referred to the Johannesburg Principles in Ten Human Rights Organisations v United
Kingdom, 24960/15; Canadian courts have cited them in Khadr v Canada (Attorney General)
[2008] FC 549, [88] and Canada (Attorney General) v Almalki [2010] FC 1106, [72]–[74].
16 The Siracusa Principles are cited in HKSAR v Ng Kung Siu [1999] FACC4/1999, [52] and Leung
Kwok Hung v HKSAR [2005] FACC1&2/2005, [32] and [71].
17 Security Bureau of the Hong Kong Special Administrative Region, Proposals to Implement
Article 23 Broadly Consistent with Johannesburg Principles (LC Paper No. CB(2)1577/02–
03(02), March2003).
18 Stankov and the United Macedonian Organisation Ilinden v Bulgaria [2001], ECtHR (First Section),
Applications nos 29221/95 and 29225/95; Petersen, 2020 (n 7 above) p 243.
19 Incal v Turkey [1998] ECtHR 48, Application no. 22678/93; Ceylan v Turkey [1999], ECtHR,
Application no. 23556/94; Petersen, 2018 (n 7 above) pp 798–799.
20 Koon Wing Yee v Insider Dealing Tribunal [2008] HKCFA 21, [27]; Petersen, 2020 (n 7 above)
p 234.
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Vol 52 Part 2 Departure from International Human Rights Law 471
applying authoritative soft law and cases from the ECtHR as they begin
to apply key NSL provisions in specic cases.21
(b) Compatibility with the NSL
Article 20 of the NSL provides:
“Aperson who organises, plans, commits or participates in any of the fol-
lowing acts, whether or not by force or threat of force, with a view to
committing secession or undermining national unication shall be guilty
of an offence:
(1) Separating the Hong Kong Special Administrative Region or any
other part of the People’s Republic of China from the People’s
Republic of China;
(2) Altering by unlawful means the legal status of the Hong Kong
Special Administrative Region or of any other part of the People’s
Republic of China; or
(3) Surrendering the Hong Kong Special Administrative Region or any
other part of the People’s Republic of China to a foreign country”.
This provision makes clear that there is no requirement that acts
include “force or the threat of force”, which makes it more difcult to
reconcile that provision of the NSL with the international and compar-
ative best practice on free expression discussed above. Article 21 of the
NSL, which covers incitement to secession, is also inconsistent with the
ICCPR and other international standards as it refers to the overbroad
language of art 20. The two articles fail to meet the requirements of Sir-
acusa Principle 29 and the Sixth Johannesburg Principle, which make
direct reference to the use or threat of force or imminent violence.
The internal conict within the text of the NSL is quite clear; while
art 4 makes explicit reference to the ICCPR as applied to Hong Kong,
meaning that these standards apply in all NSL criminal prosecutions, arts
20 and 21 display an obvious inconsistency to the proper enforcement of
the free speech protections under the ICCPR.22 The aws in arts 20 and
21 could have been addressed by the CFI in Tong’s case, but unfortunately,
it failed to do so; rather, it justied and expanded the NSLs vague and
overbroad language in determining the facts of the case.
21 The CFA, for example, drew upon ECtHR jurisprudence in Leung Kwok Hung v HKSAR [2005]
HKCFA 41.
22 Lydia Wong and Thomas E Kellogg, “Hong Kong’s National Security Law: AHuman Rights
and Rule of Law Analysis” (Georgetown Center for Asian Law, 2021), available at https://www.
law.georgetown.edu/law-asia/wp-content/uploads/sites/31/2021/02/GT-HK-Report-Accessible.
pdf (visited 26 February2022).
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472 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
(c) Application in Tong’s Case
The verdict in Tong’s case from the CFI ignored the human rights protec-
tions in the Basic Law, as well as arts 4 and 5 of the NSL, which reiter-
ate that human rights protections apply to all NSL cases. The court also
ignored all international human rights conventions that remain applica-
ble in Hong Kong and comparative jurisprudence, which seek to balance
national security and human rights concerns.
Following the Siracusa and the Johannesburg Principles, alongside
rulings from the ECtHR, even if Tong made a more direct and overt
statement in favour of political independence for Hong Kong, he should
not have been convicted unless his speech was both intended to incite
imminent violence and likely to do so. Any court adopting this more rig-
orous international law-based standard would almost certainly nd Tong
not guilty of inciting secession since he did not make any specic call to
violence. The violence requirement is meant to guarantee that provoca-
tive public speech is protected even if the government nds it offensive
or determines that it undermines political legitimacy.
If the NSL was part of the ordinary criminal law in Hong Kong, the
CFI would not have ignored the free speech provisions in both the Bill
of Rights Ordinance (BORO) and the Basic Law. However, there is lim-
ited room for the CFI to challenge the constitutionality of NSL provi-
sions, and it cannot interpret the NSL provisions beyond the plain and
expressive meaning. As the CFA has held, the Hong Kong courts cannot
engage in a constitutional review of NSL provisions.23 The CFI had no
way of engaging with a direct facial challenge against the inclusion of
both violent and non-violent acts as possible constituent elements of the
crime of secession under the NSL. That said, the court could at least have
cited art 4 of the NSL and the CFA ruling to reassert that the NSL should
be interpreted and applied consistently with the ICCPR to the maximum
possible extent.24 The CFI could also have done more to explain how to
reconcile the apparent inconsistencies between arts 4, 20 and 21 of the
NSL. Such approaches would have signalled to the public that the courts
still give weight to protecting free speech in their judgments and ensure
that human rights remain at the core of Hong Kong law.
Instead, the CFI chose to focus quite heavily on the meaning of
the slogan on Tong’s banner, “Liberate Hong Kong, Revolution of our
23 HKSAR v Lai Chee Ying (n 6 above) [37].
24 Ibid., [41] and [46]. See also Carole J Petersen, “Hong Kong’s First Conviction for Incitement to
Secession: What Role for the ICCPR?” (13 October2021) 25(22) American Society of Interna-
tional Law (ASIL) Insights, available at https://www.asil.org/insights/volume/25/issue/22 (visited
26 February2022).
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Vol 52 Part 2 Departure from International Human Rights Law 473
Times”. After an extensive discussion, the Court concluded that the slo-
gan, which can have multiple interpretations of its meaning, is “capable
of inciting others to commit secession” and thus actionable as a violation
of art 21 of the NSL.25 The Court then suggested that Tong’s actions
were such that “he intended to incite others to commit acts separating
the HKSAR from the PRC”.26 This reasoning is deeply problematic. The
Court disregarded the fact that the slogan could be interpreted in sev-
eral ways, and many valid interpretations would be neither secessionist
nor threatening to national security. Instead, it reached for the strong-
est interpretation of Tong’s use of the slogan, which in turn supported
a guilty verdict. Thus, the Court avoided a narrow interpretation of the
statutory text and also took a very specic, government-friendly view of
Tong’s actions, one that amplied the allegedly threatening nature of his
expression. This approach does not bode well for future speech-based
prosecutions under the NSL.
While repeating the more provocative aspects of Tong’s behaviour,
such as Tong’s “repeated challenge to police check lines”27 and his protest
on the anniversary of the handover, the court was incapable of demon-
strating any effort by Tong to incite others to any specic action. No
doubt, many in the crowd applauded Tong’s display of the slogan, which
could be seen as conveying a more confrontational stance, given that the
NSL was enacted a day before that protest. Yet it was also indisputable
that Tong’s provocative actions did not stir the crowd to any act of seces-
sionist violence nor would they easily be classied as likely to do so in
general. In short, the court’s attempt to conate Tong’s dangerous driving
and the display of his banner with the speech crime of inciting secession
fails the three-prong test under the Johannesburg Principles.
Hong Kong courts have rich experience in citing international trea-
ties, ECtHR case law and best practices from other common law jurisdic-
tions. It is therefore hard to justify the CFI’s decision to turn a blind eye
to human rights jurisprudence in Tong’s case. The court’s undue heavy
focus on one of the possible meanings of the slogan is highly misleading,
as the court failed to take the vagueness of the slogan into account. As
other scholars have pointed out, the slogan is capable of any number of
different interpretations and has been adopted by many to show support
for peaceful political reform, including reforms specically contemplated
by the Basic Law.28 The secessionist message proposed by the prosecution
25 HKSAR v Tong Ying Kit [2021] HKCFI 2200, [141].
26 Ibid., [150].
27 Ibid., [149].
28 Michael C Davis, “National Security Trial Ruling a Setback for Human Rights in Hong Kong”
South China Morning Post (4 August2021), available https://www.scmp.com/comment/opinion/
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474 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
and the judges is only in the eye of the beholder. If adopted by other
Hong Kong courts, this reasoning will have signicant implications for
other pending NSL trials and future enforcement of the NSL. Various
other forms of peaceful political speech, including criticism of govern-
ment ofcials and the courts and other forms of anti-government speech,
could be interpreted as secessionist and thus potentially actionable under
the NSL. This potential anti-free speech jurisprudence could give the
Hong Kong Government broad licence to effectively prohibit the use of
both key slogans from the 2019 protest movement and serve as a warning
to the would-be critics of the government that the authorities have the
power to crack down on speech that they do not like. The CFI’s verdict
failed to give a clear boundary of the limits of free speech or whether
and how the courts will reconcile NSL charges with fundamental human
rights norms.
3. The Terrorism Charge
(a) Counter-Terrorism and International Law:
The Post-9/11 Evolution
Over more than two decades since the 11 September2001 terror attacks
on the United States, both key UN bodies and individual member states
have accumulated a body of knowledge and experience on counter-
terrorism law and how to balance counter-terrorism with human rights.
Although the international community has yet to reach a consensus on
a long-stalled Draft Comprehensive Convention on Terrorism,29 it has
taken several steps towards forging a denition of terrorism that high-
lights both the seriousness of the crime and the need for a rigorous and
narrow denition of the term to guard against abuse.
Any assessment of art 24 of the NSL and its application in the Tong
Ying Kit verdict needs to be seen through the prism of that body of inter-
national and comparative law and the extent to which art 24 draws from
the counter-terror laws of other countries, and the international law de-
nition; the extent to which the court absorbed the accumulated learning
of the international community on how to balance counter-terror goals
with the need to protect human rights and whether Tong would have
article/3143634/national-security-trial-ruling-setback-human-rights-hong-kong (visited 16
December 2021).
29 The Draft Convention is generally considered to have stalled, with no immediate prospects for
its resuscitation. See Elizabeth Stubbins Bates, Terrorism and International Law: Accountability,
Remedies, and Reform (Oxford: Oxford University Press, 2011) p 2.
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Vol 52 Part 2 Departure from International Human Rights Law 475
been convicted of terrorism had he committed the same acts in another
jurisdiction.
As this section shows, these issues are clear. Although art 24 does
draw on certain elements of international and comparative counter-
terrorism law, it diverges signicantly in terms of its scope and precision
from the narrower denition put forward by the international community
in the years after 9/11. The court largely ignored international best prac-
tice and comparative jurisprudence in its verdict, delivering a conviction
against Tong for terrorism that would nd little support among global
counter-terror experts.
(b) The Aftermath of 9/11—Struggling for a Workable Denition
of Terrorism
Both before and after 9/11, the international community struggled to
agree on a legal denition of terrorism. Before that day, it seemed more
comfortable dealing with key specic elements of terrorism, such as plane
hijackings or the nancing terror groups, rather than tackling the broader
questions of how terrorism should be dened in law or how counter-terror
concerns should be balanced with human rights.
The 9/11 attacks led to a urry of activity at the international and
national levels around the world. Just weeks later, the UNSC passed UN
Security Council Resolution 1373, which called on all member states
to criminalise terrorism in state law and to ensure that the individuals
engaged in such activities were held fully accountable.30 Resolution 1373
also focused on the need for states to criminalise funding and other forms
of support to terrorist groups and to ensure that states took other neces-
sary measures to combat terrorism.
The response from member states to Resolution 1373 was quite
robust. Many states moved to implement new counter-terrorism laws or
strengthen existing ones. Yet all of these legal reforms took place even
though there was no universally agreed-upon denition of terrorism that
could serve as the basis for domestic legislation. The failure of the inter-
national community to agree on such a denition was directly tied to the
fact that terrorism itself is a political crime, one that is tied to the core
political questions on the right of the state to maintain its monopoly on
the use of force.31
30 UNSC Resolution 1373, S/RES/1373, 2001.
31 Mahmoud Hmoud, “Negotiating the Draft Comprehensive Convention on International Ter-
rorism: Major Bones of Contention” (2006) 4 Journal of International Criminal Justice 1031,
1032–1037.
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476 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
In the absence of a rigorous and narrowly tailored denition of ter-
rorism, many observers felt that the call to action in UNSC Resolution
1373 was an outright invitation to political repression and abuse in the
name of counter-terrorism.32 States could, and in all too many cases did,
introduce overly vague denitions of terrorism in domestic laws and then
moved quickly to use those laws to crack down on political opponents.
Perhaps recognising the negative effect that national and international
counter-terror efforts were having on human rights, the UNSC and other
UN bodies started to slowly shift direction as early as 2003 when, for
example, the UNSC unanimously issued Resolution 1456, which called
on states to “ensure that any measure taken to combat terrorism com-
ply with all their obligations under international law, and should adopt
such measures in accordance with international law, in particular inter-
national human rights, refugee, and humanitarian law”.33 Future UNSC
Resolutions on terrorism would generally include similar language on
human rights.34
For states seeking to revise their domestic counter-terror laws, the
meaning of Resolution 1456 was quite clear. Criminal denitions of ter-
rorism must be narrowly tailored so that they cannot easily be used to
target a regime’s peaceful political opponents and others not engaged in
genuine acts of terrorism. Resolution 1456’s reference to international
human rights law also highlights the need to protect the basic due process
rights of the accused in all criminal trials related to terrorism.
The UNSC took another step towards integrating a rights-based
approach into its counter-terror efforts in 2004 with the adoption of Res-
olution 1566,35 which reiterated the need for all counter-terror efforts
to comply with international law, and in particular with international
human rights law. It also gave further guidance to states on their domestic
counter-terror laws.
The key provision of art 3 of the Resolution 1566 takes a signicant
step forward in terms of a clear and narrowly tailored denition of terror-
ism under international law. The denition was subsequently endorsed by
other key UN bodies, including those with a human rights mandate.36 The
denition of terrorism under Resolution 1566 has three prongs that must
32 Kent Roach, “Comparative Counter-Terrorism Law Comes of Age” in Kent Roach (ed), Com-
parative Counter-Terrorism Law (Cambridge: Cambridge University Press, 2015) p 4.
33 UNSC Resolution 1456, S/RES/1456, 2003.
34 Manfred Nowak and Anne Charbord, “Key Trends in the Fight Against Terrorism and Key
Aspects of International Human Rights Law” in M Nowak and ACharbord (eds), Using Human
Rights to Counter Terrorism (Cheltenham: Edward Elgar, 2018) p 22.
35 UNSC Resolution 1566, S/RES/1566, 2004.
36 Martin Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms while Countering Terrorism, E/CN.4/2006/98, 2005, paras
26–42.
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Vol 52 Part 2 Departure from International Human Rights Law 477
be met. It must: (1) have the intended purpose of causing death, causing
serious bodily injury or the taking of hostages; (2) have the intended
purpose of provoking a state of terror in the general public or particu-
lar subgroups, intimidating a population or compelling a government to
take an action or refrain from taking action and (3) constitute offences
within the scope of international conventions and protocols relating to
terrorism. These three prongs are cumulative; all three elements must be
satised for an act to be considered terrorist in nature.37
Other denitions of terrorism, including those put forward by academic
experts and those adopted by some states such as Canada, Australia and
New Zealand, have included a provision exempting non-premeditated
protest-related violence from the denition.38 This approach has much
to commend it, in that it insures against potential abuse by prosecutors
seeking to punish individuals who engage in protest-related violence or
destruction of property that does not rise to the level of terrorism.
Resolution 1566 would have beneted from the inclusion of such a pro-
test-related exception. However, when properly applied, its three prongs
help prevent unrelated cases from moving forward with criminal charges
of terrorism under domestic law.39 The exclusion of non-premeditated
protest-related violence from the denition of terrorism would extend
to acts of serious violence undertaken with other criminal acts, given
that such acts generally are not meant to provoke a state of terror in the
general public. The denition would also exclude destruction of property
or even low-level acts of violence that occur in public protests, given
that such acts are generally not intended to cause death or serious bodily
injury.40
Many acts that fall short of this denition of terrorism may well be
criminally actionable under other provisions of a state’s domestic crimi-
nal law. Low-level acts of spontaneous violence, which take place during
37 As former Special Rapporteur Scheinin has noted, the cumulative approach embodied by Reso-
lution 1566 “acts as a safety threshold to ensure that it is only conduct of a terrorist nature that
is identied as terrorist conduct”. Ibid., para 38.
38 In Australia, for example, acts of “advocacy, protest, dissent or industrial action” are not con-
sidered terrorism if those actions are not intended to cause death, serious physical harm to a
person, or serious risk to public health or safety, or to endanger life. See Ben Saul, Dening
Terrorism in International Law (Oxford University Press 2006) p 65.
39 Ibid., p.66.
40 Mandates of the Special Rapporteur on the Promotion and Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism; the Working Group on Arbitrary Deten-
tion; the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions; the Special
Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expres-
sion; the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Associa-
tion; the Special Rapporteur on the Situation of Human Rights Defenders; and the Special
Rapporteur on Minority Issues, Letter to the People’s Republic of China (OL/CHN 17/2020, 1
September 2020), available at https://spcommreports.ohchr.org/TMResultsBase/DownLoad
PublicCommunicationFile?gId=25487 (visited 16 December2021).
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478 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
a public protest, for example, could be actionable under criminal pro-
visions relating to assault or the destruction of property. The key is to
ensure that, given their politically charged and highly stigmatising nature
and their heavy criminal penalties, criminal provisions relating to terror-
ism are only used against genuine acts of terrorism and not as a tool to
deal with other crimes.41
Resolution 1566 has had a positive effect on global debates over the
need to narrowly dene terrorism in domestic law. It remains an impor-
tant model for states while revising the criminal laws related to counter-
terrorism. Sadly, in drafting art 24 of the NSL, the Standing Committee
of the National People’s Congress largely ignored both Resolution 1566
and the broader literature on counter-terrorism and human rights as it
relates to domestic criminal law. As a result, the denition of terrorism
under art 24 is vague, overbroad and vulnerable to manipulation and
abuse by counter-terror authorities in Hong Kong.
(c) NSL of the Article 24: Departing from the International Norm
Article 24 of the NSL is much broader than the model denition put for-
ward by Resolution 1566. First, its structure is different. Instead of a series
of cumulative triggers, all of which must be present to move forward with
a terrorism prosecution, art 24 creates an open-ended list of examples that
are then linked to the core elements of the crime. The core elements of
terrorism described by art 24 include an action that causes or is intended
to cause grave harm to society, to coerce the central government or the
Hong Kong Government or to intimidate the public. The action must
also be taken “to pursue a political agenda”. These criteria and the list of
actions create a less rigorous denition than Resolution 1566’s denition
and are much more susceptible to manipulation and abuse.
Article 24’s most troubling prong is the rst one, determining that an
action causes or is intended to cause “grave harm to the society”. This
language is much broader and more subjective than Resolution 1566’s
reference to intent to cause death or serious bodily injury, making it much
more vulnerable to manipulation by Hong Kong and Mainland authori-
ties. Article 24 also replaces Resolution 1566’s clear intent requirement
with broader language that includes the actual, presumably including the
accidental or unintended causing of harm, in addition to the intent to
cause harm. This is a key divergence from Resolution 1566, which was
very important in the Tong Ying Kit verdict.
41 Scheinin (n 36 above) paras 47–50.
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Vol 52 Part 2 Departure from International Human Rights Law 479
Unfortunately, art 24’s list of actions that constitute terrorist activity
includes potentially criminally actionable acts that would not rise to the
level of terrorism under Resolution 1566, in addition to actions likely
to conform to Resolution 1566’s denition, such as the dissemination of
poisonous or radioactive substances. Article 24(3) and 24(4), for exam-
ple, refers to the damage to public property. Depending on the circum-
stances of the case, these articles could be used to target individuals who
really should not be charged with terrorism, including public protesters
who do damage to government property.
Finally, art 24(5), which refers to “other dangerous activities which
seriously jeopardise public health, safety, or security”, functions as a broad
catch-all. Article 24(5) could allow both prosecutors and judges to cat-
egorise a number of actions as terrorism, even if they do not t the more
rigorous Resolution 1566 denition.
The other elements of the crime of terrorism under art 24 include an
intent to coerce the Central People’s Government or the Hong Kong
Government or an effort to intimidate the public. Both of these elements
of the crime track closely with the elements laid out in Resolution 1566
and are less vulnerable to manipulation or abuse. Article 24 also includes
a requirement that the action be taken in pursuit of a political agenda, an
element that is included in other expert denitions of terrorism but is not
directly included in Resolution 1566.42
Article 24 draws on the counter-terror laws of other countries. Much
of the vague and overbroad language described earlier can also be found
in the laws of the countries that apparently served as a basis for art 24.
Some of its language appears to be drawn from the denition found in
the UK’s Terrorism Act, for example. The language in the UK law has
been criticised for being vague and overbroad, and some UK politicians
have called for the language to be revised to guard against abuse.43 In
the United Kingdom and elsewhere, both the court system and public
oversight, including the media, the public and elected representatives,
have been able to play an active role in guarding against the abuse of
counter-terror laws.
International experts on counter-terrorism and human rights have also
criticised art 24’s denition of terrorism. In September2020, for example,
a group of prominent UN human rights experts expressed concern that
42 Saul (n 38 above) pp 65–66; Ken Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cam-
bridge: Cambridge University Press, 2011).
43 Keith Syrett, “The United Kingdom” in Kent Roach (ed), Comparative Counter-Terrorism Law
(New York: Cambridge University Press, 2015) pp 168–170.
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480 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
art 24’s inclusion of damage to physical property as part of its denition of
terrorism pushed it beyond the denition provided by Resolution 1566.44
(d) The Tong Ying Kit Verdict: Dening Terrorism Downwards
As this analysis shows, art 24’s textual aws are quite serious. However,
they could have been addressed by the High Court in Tong Ying Kit. In
every rights-respecting jurisdiction around the world, courts play a key
role in ensuring that counter-terror laws are not abused. When govern-
ments attempt to stretch terror laws to cover defendants whose actions
simply do not t the denition, it is the job of the court system to reject
such attempts, even in those cases in which defendants may well be guilty
of other crimes.
In Tong’s case, the Court failed to judicially limit art 24’s vague and
overbroad language. Instead, it further stretched the already loose text,
inating the seriousness and exaggerating the impact of Tong’s actions to
t its core elements.
Despite the international community’s heavy focus on counter-
terrorism and human rights over the past 20 years, the Court ignored
both international and comparative laws on counter-terrorism in its ver-
dict. Instead, it retreated to a series of obscure, outdated and often irrele-
vant precedents in pursuit of a nal verdict that will fail to persuade any
but Beijing’s most ardent supporters. Most experts would not consider the
cases cited by the Court to represent cutting-edge jurisprudence on bal-
ancing legitimate counter-terrorism imperatives with protecting human
rights. This failure to grapple with international and comparative law is
perplexing, especially given the Hong Kong’s rich history of cosmopoli-
tan and outward-facing jurisprudence.
The Court’s broad interpretation of one of art 24’s core elements of
terrorism — that an action causes harm to society — is at the core of
the Tong Ying Kit verdict. The Court also set a very low threshold for art
24(1)’s action prong that an action constitutes serious violence against a
person or persons. In our analysis, we show that the Court both adopted
the broad interpretations of these prongs and embraced an expansive
view of Tong’s actions. The combination of these moves led directly to
the court’s guilty verdict against Tong on the terrorism charge.
The Court was right in holding that Tong’s actions were in pursuit of
a political agenda; he was indeed attempting to make a political state-
ment, both by carrying a banner bearing slogans and by driving recklessly
44 Letter of the Permanent Mission of the People’s Republic of China to the United Nations
Ofce at Geneva, No. GJ/64/2020 (30 October2020).
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Vol 52 Part 2 Departure from International Human Rights Law 481
around and through police lines. The specic requirement of art 24 was
rightly found to be met by the court.
It is perhaps surprising that the Court did not link Tong’s actions to
art 24(5), the broader catch-all provision which refers to “other dan-
gerous activities”, but rather to art 24(1), which refers to “serious vio-
lence against a person or persons”.45 That language more closely tracks
the Resolution 1566 denition, even if it falls short of its more stringent
language.
In its analysis, the court relied heavily on the prosecution’s submis-
sion that “serious violence against persons does not mean serious injuries
caused to the persons”.46 In essence, the Court took the view that Tong’s
actions were of such an inherently reckless and dangerous nature that
they should satisfy the requirements of art 24(1) even in the absence of
any serious injuries.
But this analysis confuses the nature of the terrorist act. In most cases,
death or serious injury is very much an intended outcome, indeed a core
goal, and not an accidental or unintended by-product. It seems clear,
even from the factual recitation put forward by the prosecution, that
Tong was attempting to evade the police, and in so doing continue his
protest. He was clearly not attempting to use violence as a means to make
a political statement, as is almost always the case in counter-terror cases.
The requisite intent to cause serious bodily injury or death required by
the Resolution 1566 denition is absent.
Tong’s actions are almost certainly criminally actionable under other
provisions of Hong Kong’s Crimes Ordinance. The Court is right to con-
clude that Tong “created a dangerous situation where police ofcers had
to jump out of his way and pedestrians ... were potentially put at risk and
in harm’s way”.47 Such actions should be taken seriously, but they are the
stuff of day-to-day criminal law cases and not of high-level counter-terror
prosecutions.
Although the Court repeatedly characterises the violence engaged in
by Tong as “serious”, its own analysis suggests that the actual level of vio-
lence involved in Tong’s case was quite low. The Court is right to point
out that a motorcycle can be a deadly weapon,48 and no doubt one could
imagine situations in which a motorcycle is used as a key element of a ter-
rorist attack, but that is not what happened in Tong’s case, as evidenced by
45 HKSAR v Tong Ying Kit (n 25 above) [160].
46 Ibid., [159].
47 Ibid., [152].
48 Ibid., [158].
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482 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
the fact that the injuries sustained by three of the police ofcers involved,
though not trivial, were also by no means grave or life-threatening.49
This aspect of the Court’s analysis is especially troubling, given its poten-
tial application to future cases. If art 24(1) can be satised by acts that are
neither aggressively violent nor result in serious harm to others, then any
number of acts including stghts between protesters and police or acci-
dental contact between protesters and police ofcers resulting in minor
injury could also be swept up into an art 24 terrorism charge. In essence, the
Court’s reasoning on this prong represents a serious watering down of the
action requirement of art 24(1) and a signicant departure from the “intent
to cause death or serious bodily injury” language of Resolution 1566.
The Court’s harm to society analysis involves a similar watering down
of the legal requirement and a similar ination of the effect of Tong’s
actions. The Court begins its analysis of the harm requirement by what it
acknowledges as a “wide” denition of harm, one that goes beyond physi-
cal harm to embrace a range of other kinds of social and political effects.50
It concludes that Tong’s actions caused “law-abiding citizens to fear for
their own safety and to worry about the public security of Hong Kong”.51
This is a rather signicant conclusion to draw, and yet the only evi-
dence that the court cites in support of it is the testimony of two witnesses
to Tong’s actions, who were apparently “shocked” by what happened.52
Their subjective reactions should indeed be taken at face value, but it
seems strange to gauge the response of an entire city of 7.5million on
the basis of two eyewitnesses, especially when the legal stakes are so high.
Even more perplexing is the Court’s decision to heavily link its analy-
sis of the harm to society prong to the fact that Tong struck police ofcers.
According to the Court, his reckless driving constituted a “blatant and
serious challenge mounted against the police force [that] will certainly
instil a sense of fear amongst the law-abiding members of the public”.53
That fear will quickly, the court argues, morph into “apprehension of a
breakdown of a safe and peaceful society into a lawless one”.54
Terrorists often strike at symbolic targets to use violence to communi-
cate a political message and to undermine the credibility of those targets,
which are often state-afliated. In some cases, attacks on state entities
are also meant to create a sense of fear in the general public and to send a
49 Holmes Chan, “Inside the Surreal Trial of the ‘Most Benevolent Terrorist in the World’
Vice World News (20 September2021), available at https://www.vice.com/en/article/93y47p/
hong-kong-national-security-trial-tong-Ying Kit (visited 16 December2021).
50 HKSAR v Tong Ying Kit (n 25 above) [161].
51 Ibid., [163].
52 Ibid.
53 Ibid., [162].
54 Ibid.
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Vol 52 Part 2 Departure from International Human Rights Law 483
message that the state cannot protect either itself or its citizenry. In such
cases, criminal prosecution on terrorism charges may well be warranted.
We do not believe that such dramatic dynamics are in play in Tong’s
case. Taken at face value, the court’s analysis would seem to suggest that
any physical confrontation between police and civilians that results in
physical injury to police ofcers would, as long as political motives are
involved, rise to the level of terrorism or at least “instil a sense of fear
amongst law-abiding members of the public”, which in turn causes great
harm to society. Confrontations between police and the public are by no
means unknown in countries around the world and are generally subject
to criminal sanctions but, with an absent “intent to cause death or serious
bodily injury”, to use the Resolution 1566 language, they should not be
considered terrorism.
It does seem clear that Tong was attempting to make a negative state-
ment about the police through his actions and perhaps to embarrass them
as well. If that was indeed his intent, such taunting is a familiar part of life
in an open society. But such acts should not be considered terrorism and
should not be treated as such by the criminal justice system.
4. Conclusion
As this article has documented, the challenges posed by the NSL to
the Hong Kong court system are both real and signicant. Some have
expressed concerns about external political pressure on the judiciary.55
The Hong Kong government must do its best to safeguard judicial inde-
pendence and the rule of law. Any pressure on courts to deliver guilty
verdicts in NSL cases will have potentially wide-ranging consequences
for the judiciary’s public legitimacy.
As numerous international studies and surveys have shown, Hong
Kong’s judiciary is widely respected, and its judgments are often cited
by other common law courts around the world.56 In 2019, for example,
Hong Kong was ranked 16th among 126 countries and jurisdictions in
the World Justice Project Rule of Law Index, beating such countries as
55 See Carole Petersen, “The Disappearing Firewall” (2020) 50 HKLJ 655. See also Kelly Ho, “Top
Hong Kong Barrister Raises Concerns Over ‘Executive Interference’ into Judiciary” HKFP (22
June 2020), available at https://hongkongfp.com/2020/06/22/security-law-top-hong-kong-bar
rister-raises-concerns-over-executive-interference-into-judiciary/; and Tommy Walker, “Legal
Experts Question Hong Kong Chief Justice’s Independence Claims” VOA News (27 Janu-
ary 2022), available at https://www.voanews.com/a/legal-experts-question-hong-kong-chief-
justice-s-independence-claims-/6416303.html.
56 Pui Yin Lo, “Impact of Jurisprudence beyond Hong Kong” in Simon NM Young and Y Ghai
(eds), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong
(Cambridge: Cambridge University Press, 2014) pp 579–607.
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484 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
the United States, France and South Korea.57 The success of the courts
in maintaining their independence and commitment to the rule of law
has been integral to Hong Kong’s ability to preserve its stature as a key
global nancial hub.
And yet, even before the 2019 protests, condence in the judiciary
among Hongkongers had begun to slip. According to various public opin-
ion surveys, public condence in judicial fairness and impartiality dropped
to all-time lows in 2021, as did public faith in the rule of law in the spe-
cial administrative region. According to the Hong Kong Public Opinion
Research Institute, public scoring of the rule of law in Hong Kong has
dropped from 6.9 (out of a possible 10) just after the 1997 Handover to
4.5 in July2021.58 No doubt, some of the fall can be attributed to the
system-wide loss of public condence in Hong Kong’s political system in
the wake of the 2019 protests,59 but it seems likely that broader trends
in the administration of justice in Hong Kong are also core factors that
drive the growing public discontent with the courts.
The conundrum that the courts face is all too clear. As they deliver
more verdicts favourable to the government, they may be seen as less
institutionally independent, and public trust in the courts declines.60
However, if they fail to deliver government-favoured outcomes, espe-
cially in key high-prole cases, they face the very real risk of a backlash.
Over the past two years, pro-Beijing politicians in Hong Kong have
called for reforms that would undercut judicial independence.61 The
authorities may also act to limit the power of the courts if necessary.62
In the past, the courts have used various strategies to balance com-
peting pressures from Beijing and the people of Hong Kong, including
extensive use of comparative and international law, a deep commitment
57 World Justice Project, The WJP Rule of Law Index 2019, available at https://worldjusticeproject.
org/sites/default/les/documents/ROLI-2019-Reduced.pdf (visited 15 March 2022).
58 Hong Kong Public Opinion Research Institute, “Appraisal of Degree of Compliance with the
Rule of Law”, available at https://www.pori.hk/pop-poll/rule-law-indicators-en/g002.html?
lang=en (visited 15 March2022).
59 Julius Yam, “Approaching the Legitimacy Paradox in Hong Kong: Lessons for Hybrid Regime
Courts” (2021) 46 Law and Social Inquiry 1, 182.
60 Ibid.
61 Ng Kang-Chung, “Hong Kong Not an ‘Independent Judicial Kingdom’: Pro-Beijing Heavy-
weight Doubles Down on Reform Calls” South China Morning Post (4 January2021), available at
https://www.scmp.com/news/hong-kong/politics/article/3116411/hong-kong-not-independent-
judicial-kingdom-pro-beijing (visited 15 March2022); Primrose Riordan, “Pro-Beijing Reforms
Threaten ‘End’ of HK’s Legal System, Top Lawyer Warns” Financial Times (20 February2021),
available at https://www.ft.com/content/da312e66-bea5-464f-bc5a-490729f3fbca (visited 15
March2022).
62 Jerome ACohen, “The Intensifying Pressures to Further ‘Reform’ Hong Kong’s Courts” The
Diplomat (23 November 2020), available at https://thediplomat.com/2020/11/the-intensi
fying-pressures-to-further-reform-hong-kongs-courts/.
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Vol 52 Part 2 Departure from International Human Rights Law 485
to procedural justice and a differential approach to cases based on the
political imperatives involved.63 The use of such strategies allows the
courts to signal to Beijing that its interests will be protected in key cases
such as those involving democratic reform. At the same time, the use of
comparative and international law and a strong commitment to proce-
dural justice can signal to the public that the courts value the core rule of
law principles and will, when possible, align Hong Kong’s jurisprudence
with that of other, demonstrably rights-respecting jurisdictions.
The NSL seems almost designed to frustrate these strategies. Its crim-
inal provisions, for example, necessitate a court hearing. The aggressive
use of these criminal provisions by the government means that the courts
are expected to deliver verdicts in a large volume of cases over the next
year or more, making a delaying or differentiation strategy impossible
to implement. At the same time, both the NSL and its Implementing
Regulations limit the due process rights of those accused of NSL crimes,
making it more difcult for the courts to emphasise procedural fairness as
a means to win public support.64 Finally, both the text of the NSL and the
government’s choice of cases have thus far made it virtually impossible
for the courts to successfully draw upon comparative sources to rational-
ise guilty verdicts in ways that would bolster judicial legitimacy.
The courts have yet to come up with an effective response to the deep
and real challenges posed by the NSL. The judiciary’s public legitimacy
crisis could well continue to deepen, unless the courts can develop effec-
tive mitigation strategies that will allow them to handle future NSL cases
in ways that will bolster or at least not continue to undercut public con-
dence in them.
Declining public trust in the Hong Kong legal system should be viewed
as a deeply troubling warning sign. The aggressive implementation of the
NSL is generating many ancillary costs, including deep damage to the
institutional legitimacy of the court system.
For the court system, the time may soon come to embrace alterna-
tive strategies for handling future NSL cases. With dozens of NSL cases
currently pending, the judiciary will have to test Beijing’s willingness
to accept more rights-protective outcomes at some point. Otherwise,
the downward spiral in public trust will likely continue. While there is
no easy answer to the NSL-imposed legitimacy paradox that the Hong
Kong courts face, it is clear that a continuation of the status quo will only
deepen the current crisis, rather than end it.
63 Yam (n 59 above) pp 162–178.
64 Wong, Kellogg and Lai (n 1 above).
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486 Yan-ho Lai and Thomas E. Kellogg (2022) HKLJ
The CFI’s verdict has already inuenced the outcomes of a subsequent
NSL case and a non-NSL national security case on seditious speech over
the past few months: HKSAR v Ma Chun Man and HKSAR v Tam Tak
Chi. The judge in both cases, Judge Stanley Chan, cited the CFI’s verdict
in Tong Ying Kit in both the Ma Chun Man and Tam Tak Chi verdicts.
Ma was convicted of incitement to secession and then sentenced to jail
for ve-and-a-half years. Tam was convicted of uttering seditious words,
and one of the pieces of evidence cited in Chan’s nal verdict was his
utterance of the slogan “Liberate Hong Kong, Revolution of Our Times”,
the same slogan that Tong had emblazoned on a banner that he carried
during the 1 July2020 protest, the meaning of which was a focal point of
his trial. On 20 April2022, Tam was sentenced to 40 months in jail.65 As
these two verdicts make clear, the decision in Tong’s case will resonate in
other NSL and national security verdicts, likely, for years to come.
As this article was being nalised for publication, Tong decided to
drop his appeal against the verdict. His reasons for doing so are not pub-
licly known.66 While it is not possible to discern the reasons behind his
decision, the immediate legal effect is clear: the CFI’s verdict will stand
and will serve as a precedent for other NSL cases currently making their
way through the courts, including other secession and terrorism cases.
Any chance that the Court of Appeal would have overturned the CFI’s
awed verdict has now been lost, and Tong will continue to serve his
nine-year sentence.
65 HKSAR v Ma Chun Man, DCCC0122/2021; [2021] HKDC 1325, [43] and [81]; HKSAR v Tam
Tak Chi, DCCC 927, 928& 930/2020; [2022] HKDC 208, [60], 927, 928 & 930/2020; [2022]
HKDC 343. Also see (Eric) Yan-ho Lai, “Hong Kong’s Sedition Law is Back” The Diplomat (3
September 2021), available at https://thediplomat.com/2021/09/hong-kongs-sedition-law-is-
back/ (visited 26 February2022); (Eric) Yan-ho Lai and Thomas Kellogg, “NSL Verdict a Major
Blow to Free Speech in Hong Kong” Lawfare (19 November2021), available at https://www.
lawfareblog.com/nsl-verdict-major-blow-free-speech-hong-kong (visited 26 February2022).
66 Kelly Ho, “First Hong Kong Activist Jailed under National Security Law Drops Appeal in
‘Surprise’ Move” Hong Kong Free Press (13 January 2022), available at https://hongkongfp.
com/2022/01/13/rst-hong-kong-activist-jailed-under-national-security-law-drops-appeal-in-
surprise-move/ (visited 26 February2022).
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ResearchGate has not been able to resolve any citations for this publication.
Article
A hybrid regime court faces a legitimacy paradox: an activist court risks attracting backlash from the incumbent, whereas a deferential court may undermine public trust. The Hong Kong courts, at least in the twenty or so years following handover, provide an example of courts successfully navigating the legitimacy paradox despite the conflicting expectations from political actors. This article draws on the experiences of the Hong Kong courts to better understand the legitimacy paradox. It identifies three tools that Hong Kong courts have used to maneuver through the paradox, namely (1) the differential treatment of cases according to political stakes; (2) the use of comparative jurisprudence; and (3) the commitment to procedural justice. Studying these techniques may provide relevant insights to courts in similarly constrained political environments as to how judicial legitimacy can be earned. The article also reflects on the institutional future of Hong Kong courts in light of the increasing polarization of Hong Kong society as a result of the anti-extradition bill protests and signs of greater interference from Mainland China.
The WJP Rule of Law Index
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World Justice Project, The WJP Rule of Law Index 2019, available at https://worldjusticeproject. org/sites/default/files/documents/ROLI-2019-Reduced.pdf (visited 15 March 2022).
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