The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKASPDMC)’s refusal to hand over information The Court of Final Appeal (CFA) overturned the trial judgment

“A “woman” cannot be interpreted as someone who “reasonably believes” that she is a woman, and a deer cannot become a horse because someone “reasonably believes” that it is a horse” – Tonyee Chow Hang-tung, arguing in the appeal to the Court of Final Appeal.

“Some people may say that the king’s lack of clothes is obvious to everyone, so what difference does it make whether or not it is said? … If we want to see changes in the outside world, we cannot remain unaware of them.”

“We must continue to burst the lies of power.” ‘No matter how many bubbles of lies, they are still fragile.’ ”It is not impossible to win, even if we have to pay a price.” — Written speech by Tonyee Chow Hang-tung

Introduction: Dissolved Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKASPDMC) Accused of Two Offenses

The Hong Kong Alliance in Support of Patriotic Democratic Movements of China, or the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKASPDMC) for short, is a former pan-democratic political organization in Hong Kong. It was founded on May 21, 1989, in the midst of the global Chinese mass rally in support of the 1989 pro-democracy movement in Hong Kong. From 1990 to 2019, the HKASPDMC has been organizing the June Fourth Rally and the Victoria Park Candlelight Vigil for 30 consecutive years to commemorate the June Fourth Incident and to express its insistence on the protection of China. For the first 22 years of its existence, the HKASPDMC was chaired by Mr. Szeto Wah, who was regarded as a lifelong patriot.

On August 25, 2021, the National Security Bureau of the police wrote to the Standing Committee and the person-in-charge of the HKASPDMC, stating that based on the police investigation, the Commissioner of Police had reasonable grounds to believe that the HKASPDMC was an “agent of a foreign country”, and requesting the HKASPDMC to submit the information and the relevant supporting documents to the Police Headquarters in writing, in person and in accordance with the requirements of the 5th Schedule of the 43rd Schedule of the Hong Kong National Security Law, within 14 days (September 7th).

On September 7, four members of the Standing Committee of the HKASPDMC submitted a letter to the Police Headquarters in Wan Chai, explaining their refusal to submit information on the membership and finances of the HKASPDMC as requested by the Police’s National Security Bureau. In its reply to the Police, the HKASPDMC said that the HKASPDMC was not a “foreign agent” and the Police had no right to request the HKASPDMC to provide the information. The HKASPDMC also considered that the Police had committed a legal error in requesting the HKASPDMC to provide the information, and was dissatisfied that the Police had not provided any justification for the refusal in the letter, which was considered to be a violation of the principle of natural justice.

On September 8, the Vice-Chairman of the HKASPDMC, Ms. Tonyee Chow Hang-tung, and members of the Standing Committee, Mr. Leung Kam-wai, Mr. Tang Ngok-kwan and Mr. Chan To-wai, were arrested by the Police National Security Bureau (NSB) at different locations in the morning and detained for investigation. Four of them were detained for investigation. Later, together with Tsui Hon-kwong, five people were charged.

On September 25, 2021, the EGM passed a resolution to dissolve the organization.

Subsequently, Leung Kam Wai and Chan To Wai, who had already been imprisoned for more than the maximum sentence for the alleged offense, pleaded guilty and were sentenced to three months’ imprisonment and released immediately. Tonyee Chow Hang Tung, Tang Ngok Kwan and Tsui Hon Kwong pleaded not guilty and were convicted on March 11, 2023 and sentenced to four and a half months’ imprisonment. Their appeals to the High Court were dismissed and they finally appealed to the Court of Final Appeal.

At present, the HKASPDMC, Lee Cheuk-yan, Albert Ho and Tonyee Chow Hang-tung are still being prosecuted for one count of “inciting subversion of state power”. The case has been referred to the High Court, and the trial date is tentatively set for May 6 this year, but the court said it may be postponed due to the judge’s lack of time to hear the case.

A Rare Small Victory

The HKASPDMC’s refusal to hand over information was unanimously ruled in favor of its appeal by the Hong Kong Court of Final Appeal (CFA) on June 6, with the convictions of Tonyee Chow Hang-tung, then vice-chairman of the HKASPDMC, and two former members of the Standing Committee of the HKASPDMC, namely, Tang Yuek-kwan and Tsui Hon-kwong, being quashed. The three were originally convicted and jailed for refusing to submit information about the organization to the police and were charged with violating the implementation details of the Hong Kong National Security Law. This is the first time that a case involving the Hong Kong National Security Law has been won at the Court of Final Appeal and the convictions quashed, a rare victory for Hong Kong’s pro-democracy camp.

The first case involving the implementation details of the Hong Kong National Security Law.

The HKASPDMC, famous for hosting the annual June 4 Candlelight Vigil in remembrance of the 1989 Tiananmen Square Incident, was disbanded in 2021 under the shadow of China’s enactment and full implementation of the Hong Kong National Security Law. Prior to its dissolution, the Hong Kong police’s National Security Bureau demanded that the organization provide information on its operations and finances, such as its members and donors, and accused it of being a “foreign agent” and of receiving HK$20,000 from an unnamed organization on suspicion of having ties to an overseas pro-democracy group. However, the HKASPDMC refused to cooperate, arguing that the authorities had arbitrarily labeled pro-democracy organizations as foreign agents and had no right to request information from them.

In March 2023, the Hong Kong Court of Appeal in West Kowloon stated that based on the background of the Alliance, the activities it organized and its relationship with people in Hong Kong and overseas over the past years, the Police had reasonable grounds to believe that the Alliance was a foreign agent. The judge found all the defendants guilty of the charge, as he considered that the activists were obliged to comply with the notification requirement to provide information, but did not intend to do so. But now, two years later, five judges of the Hong Kong Court of Final Appeal have unanimously held that the prosecution’s actions had “denied the defendants a fair trial” and ruled against the Department of Justice, which prosecuted on behalf of the Government.

In their judgment, the five Hong Kong CFA judges, headed by Chief Justice Andrew Cheung, said that the prosecution’s removal from evidence of the only material that would have established that the Alliance was a foreign agent was counterproductive to the prosecution’s case and “deprived the appellants of their right to a fair trial, resulting in their conviction involving an unfair trial”. Specifically, the Department of Justice had to prove that the HKASPDMC was in fact an “agent of a foreign state”, and the invocation of “public interest immunity” to substantially cover up the NSA’s investigation report denied the defendant access to the prosecution’s case, deprived him of his right to a fair trial, and rendered the Department of Justice’s conviction unsafe without any evidence to substantiate its case.

The Court also pointed out that the trial magistrate, Mr. Justice Lo Tak Chuen, had emphasized that in order to “effectively” safeguard national security, it was sufficient for the police to have reasonable grounds to believe that the HKASPDMC was an agent, and that the High Court Judge, Ms. Justice Lai Yuen Kei, had further ruled on appeal that the Defendant was unable to challenge the validity of the police notification letter, and that the ruling of the High Court Judge was wrong in both cases. The Court of Final Appeal pointed out that the courts could not ignore the protection of rights in the discharge of their duty to safeguard national security. This is the first time that a national security defendant has been acquitted in a final judgment. In the past, the Court of Final Appeal has lost national security cases, including the bail case of Jimmy Lai, the bail case of the defendant in the “Guardians of the Sheep Village” case, and the case of Lui Sai-yu’s commutation of sentence. Before leaving the court, Chow smiled and raised the “V” sign. Outside the court, Tang said “justice lies in the hearts of the people”, while Tsui replied that “unjust incarceration is untenable”.

From an oasis of rule of law to a “police state

During a hearing at the Hong Kong Court of Final Appeal in January this year, Tonyee Chow Hang-tung defended herself in court, saying that the case highlighted what a police state is, and that a police state is the result of the courts’ connivance of such abuse of power. This connivance must stop immediately. China’s state security apparatus, which has always operated largely in the shadows, has been expanded in recent years by the Communist Party as a defender against threats to Communist rule, public order and national unity. With the introduction of the Hong Kong National Security Law a few years ago, China’s police state was rightfully extended to Hong Kong, where the Chinese security agencies will not be subject to the supervision of local laws and courts.

The open and unregulated nature of the security agencies’ operations represents a significant change for Hong Kong, which has long labeled itself an oasis of law and order. Hong Kong’s national security law introduced vaguely defined offenses, such as secession and collusion, that could well have been used to stifle protests. This was also the case when, on the first full day of the law, the Hong Kong police arrested protesters as a demonstration of the new powers given to the police under the law.

Although the Court of Final Appeal overturned the original verdict, Tonyee Chow Hang-tung , Tang Yuek Kwan and Tsui Hon-kwong were sentenced to 4.5 months in prison for “failing to comply with the notification requirement for the provision of information”, and all three of them have already served their sentences. In fact, for this kind of situation where the sentence is very short and the case is still under appeal, it is entirely possible to apply for bail. However, I do not know whether it is because the application of the Hong Kong National Security Law has increased the political sensitivity of the case that bail was not granted in this case. And it seems that there is no follow-up protection for the three people who have already served their sentences, so one cannot help but ask – is justice belatedly done, or is it still justice?

The June 4 Candlelight Vigil in Victoria Park was an annual event in Hong Kong to commemorate the victims of the June 4 Incident, organized by the HKASPDMC every year from 1990 to 2019, and held at the hard-surface soccer pitch in Victoria Park. The event was once the world’s largest June 4 commemoration, with tens to hundreds of thousands of participants each year. Hong Kong used to be the only place in Chinese territory where the victims of the June 4 Tiananmen Square incident in 1989 could be publicly commemorated, but in recent years the commemoration has gone underground. Since the central government imposed national security laws on Hong Kong in 2020, almost all forms of dissent have become criminalized in the city. As of early March this year, Hong Kong authorities have arrested 320 people on charges of endangering national security, of whom 161 have been convicted.

The Future of National Security Law in Hong Kong’s Judicial Practice

As a high standard common law jurisdiction, Hong Kong should strike a reasonable balance between safeguarding national security and protecting human rights. Specifically, it should not only implement the Hong Kong National Security Law, but also respect and protect the requirements of the Basic Law and the International Covenant on Civil and Political Rights (ICCPR). Under common law principles, the law should be understood as a whole. Therefore, when the court interprets the elements of Schedule 5 to the legislation, it should not only consider the textual formulation of the Schedule, but should also consider the elements of Schedule 7 to the legislation where necessary and relevant. For example, in applying to the Court for an order to furnish information or produce material, the judge has to be satisfied that there are “reasonable grounds” for suspecting that a person is in possession of the information or material and that the information or material is likely to be relevant to the investigation.

Of course, the Court of Final Appeal’s ruling does not undermine the police’s investigative powers in national security cases. Even if it cannot be proved for the time being that a person or an organization belongs to “a foreign agent, a Taiwanese agent, or an agent or manager thereof”, the police can still apply to the court on the basis of “reasonable belief”, and after sufficient evidence has been provided, the court will issue an order for the provision of information or the production of materials in accordance with the law. This arrangement is in line with the propriety of the legal procedures and demonstrates the respect and protection of human rights.

Commenting on the final judgment of the case, Mr. Sun Qingnuo, Deputy Director of the Office of National Security of the Central People’s Government in the Hong Kong Special Administrative Region, when asked whether there were loopholes in the Hong Kong National Security Law that needed to be amended, said that the Hong Kong National Security Law could be improved continuously, including through the National People’s Congress (NPC)’s interpretation of the Basic Law. On the other hand, Professor Albert Chan of the Faculty of Law of the University of Hong Kong is of the view that the case of the HKASPDMC only involves the interpretation by the Court of Final Appeal of individual provisions of the implementation details, and does not involve the interpretation of the Basic Law by NPC. Mr. Ronny Tong, a member of the Executive Council, also analyzed that an interpretation of the Basic Law by the NPC is unlikely at this stage. The SAR Government has already indicated that it will study the judgment and the relevant legal principles, and examine how to further improve the relevant legal system and enforcement mechanism, so as to more effectively prevent, stop and punish acts endangering national security, and to continue to strengthen law enforcement power.

In recent years, the Hong Kong Government has repeatedly emphasized on different occasions that safeguarding national security is a top priority for Hong Kong. The protection of national security is not a work in progress, but a work in progress. Meanwhile, the international community has never ceased to worry that the Hong Kong National Security Law will further undermine civil liberties and fundamental freedoms, and a number of international organizations have been committed to calling for the repeal of this law and for the cessation of interpreting co-operation with United Nations agencies as a threat to national security. It is conceivable that after the first final victory for the defendants of the Hong Kong National Security Law, these two forces will further tussle with each other – whether Hong Kong’s long-proud judicial independence will be reduced to a tool of the Hong Kong National Security Law, or whether this case will rekindle Hong Kong people’s hopes for the re-establishment of a civil society is still very much an unknown. This is still a big unknown.

Article/Editorial Department Sameway Magazine

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