Tong Ying-kit’s Landmark Case Sets Bad Precedent For What Is To Come In An Already Deeply Divided Hong Kong

Tong Ying-kit, the first person to be charged under the national security law imposed on 30 June last year, has been found guilty in what Al Jazeera has called a landmark case. He is now likely to face between 10 years to a life sentence. The verdict, which was delivered by three judges, Esther Toh, Anthea Pang and Wilson Chan, found Tong to be guilty of both terrorism and inciting secession. The ruling has been called an “ominous moment” for human rights in Hong Kong by Amnesty International’s Asia-Pacific Regional Director Yamini Mishra, as it marks a new attempt to end freedom of speech in Hong Kong and to bring Hong Kong more directly under China’s sovereign rule.

Tong Ying-kit’s arrest occurred on 1 July 2020 during a protest against the National Security Law, which Beijing had imposed on Hong Kong the night before. Hong Kong’s National Security Law was aimed at punishing what the Chinese Communist Party believed to be threats to national security. This was justified due to the perceived need to bring stability after the 2019 pro-democracy protests. The law, which Amnesty International has called “dangerously vague and broad,” gives a maximum penalty of life imprisonment to any act which can be considered secession, subversion, terrorism or collusion with foreign forces. The definitions of these acts were purposefully left obscure to allow for a wide interpretation. At the time the United Nations Human Rights Office raised concerns that such broad definitions would undermine human rights by allowing discrimination and arbitrary interpretation.

According to Channel News Asia, Tong is one of 117 people to have been arrested under the National Security Law in the year since it was first imposed and was accused of driving his motorcycle into three riot police officers, causing injury. His case, however, did not consider a charge for dangerous driving causing grievous bodily harm. Instead, it rested on the interpretation of a slogan written on the flag which was attached to his motorcycle which read “Liberate Hong Kong, revolution of our times.” The Hong Kong government said this slogan, which was popular during the mass pro-democracy protests of 2019, was aimed at inciting Hong Kong independence and subverting state power. In a summary of the ruling read by judge Esther Toh, it was stated that “such a display of words was capable of inciting others to commit secession.” Toh further proclaimed that Tong had a political agenda that caused “grave harm to society.”

The ruling, which has received attention from all over the globe, has been greatly criticized by human rights and pro-democracy groups. Amnesty International’s Yamini Mishara spoke out against the ruling on the 27th of July saying “[t]o convict Tong Ying-kit of ‘secession’ for displaying a flag bearing a widely used political slogan is a violation of international law, under which expression must not be criminalized unless it poses a concrete threat. This feels like the beginning of the end for freedom of expression in Hong Kong.” Amnesty International has also gone so far as to call this a human rights emergency, a sentiment that has been shared by many. Part of the criticism has also been aimed at the wording for the law which allows for those arrested to be presumed guilty rather than innocent, therefore, denying them a right to bail unless they can prove they will not continue to endanger national security. It was under these conditions that Tong was denied bail.

The Hong Kong National Security Law is just one of multiple attempts by the Chinese government to tighten its grip on the Special Administrative Region. As a Special Administrative Region, Hong Kong currently maintains a separate governing body and economic system from that of mainland China. This arrangement is often referred to as the “one country, two systems” policy and originates from the Sino-British Joint Declaration of 1984. The agreement also stated that when Hong Kong was handed over from Britain to China its system would remain unchanged for 50 years. Then when those 50 years were up, there would be what is colloquially known as a second handover, where Hong Kong would come directly under the rule of the Chinese state and the one country, two system policy would cease to exist. The year 2047 looms large over Hong Kong, a region divided among those who wish for an independent and democratic Hong Kong and those whose allegiance lies with the mainland. These divides have been deepening since 2013 when Xi Jinping became the President of the People’s Republic of China. Since Xi Jinping has come to power the Chinese Communist Party has taken up a much more interventionist stance with Hong Kong, leading to a series of large protests across the region.

The first series of protests, known as the umbrella protests (named as such due to the umbrellas people used to protect themselves from tear gas), sparked in 2014 following a statement made by Xi Jinping himself, which proclaimed that the Chief Executive of Hong Kong must “love the country China and love the Country Hong Kong.” The harsh response to these protests sparked the first large wave of the pro-independence movement and pro-democracy movements. The second series of protests that occurred in 2019 were in response to the proposal of an amendment to Hong Kong’s extradition laws which would allow for criminal suspects to be extradited to mainland China for trial. The bill was eventually withdrawn after months of protests which rocked the city. Now, the most recent protests have been aimed at the National Security Laws.

There cannot be peace while China continues to interfere in Hong Kong’s political system. China’s actions against Hong Kong, including those against Tong, are in clear violation of international human rights law and the Joint Sino-British Declaration of 1984. Amnesty International has found that the broad language of the Hong Kong National Security Law has been used to violate several human rights in the past 12 months, including justifying censorship, harassment, arrests and prosecutions. While protections against these violations exist in Hong Kong law, Amnesty International has found that these protections have been trumped by the new laws. The international community must stand with the protesters in Hong Kong and put pressure on the Government and Chinese Communist Party to tighten up the wording of the law, if not completely revoke it, to ensure such violations cannot continue to go ahead. Furthermore, the international community should put pressure on China to abide by the Sino-British Joint Declaration of 1984 and truly allow for Hong Kong to have an independent political system where, as stated in the Basic Laws of Hong Kong, all members of the legislative council and all members of the committee are voted on by the public.

Furthermore, the pro-China Hong Kong government also has a large role to play in creating peace. Tong’s trial has set a bad precedent for what is to come; if peace is to be reached a new path needs to be taken. One where the government of Hong Kong must reassure its people that it is committed to the one country, two systems policy. To earn back the trust of its people some key things need to happen. Firstly, the legislative council elections, which were due to go ahead in September of 2020 but have been postponed to December this year, must go ahead fairly and without interference. This will require revoking the rule which barred Legislative Councils members from supporting Hong Kong independence, causing the invalidation of four opposition pro-democracy legislatures and the subsequent registration of the 15 remaining pro-democracy legislatures.

Secondly, Chief Executive Carrie Lam must make an earnest attempt to meet some of the demands which were first raised during the 2019 protests. These demands are known as the “five key demands, not one less.” These include the full withdrawal of the extradition bill (which is the only demand that was met), an independent inquiry into police brutality, amnesty for arrested protestors, the resignation of Lam, and universal suffrage. Taking accountability for the lack of effort to meet these demands and the police brutality which was imposed on what were mainly peaceful protests, would be a start. Ensuring fair trials for arrested protestors like Tong also needs to happen. In the end, both sides will likely have to make tough compromises, but if done in good faith there is potential to see at least some issues being partially resolved.

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