As expected, Joshua Wong Chi-fung pleaded guilty to the charge of “collusion with foreign forces”. Again, this raises questions about how Hong Kong’s criminal justice system has evolved. Meeting with foreign officials and politicians can potentially be construed as “collusion”. Just as in mainland China, anyone who attempts to tell their stories to foreign journalists or politicians could face lengthy prison sentences. China, a powerful authoritarian regime, appears to be so threatened by a 29-year-old former student leader and aspiring young politician that even his international advocacy has been treated as a matter of national security.
Judges in Hong Kong no longer appear to give sufficient consideration to the significance of the evidence presented in these cases. How could the prosecution prove beyond reasonable doubt that Joshua Wong committed the offence of “collusion with foreign forces”? This is the prosecution’s usual burden of proof in criminal proceedings in common-law jurisdictions.
What constitutes the offence is so arbitrary, and its definition so broad, that it is effectively left to the judge to determine its scope. Moreover, the reasoning given by the courts in the national-security cases heard so far has failed to demonstrate that the provisions of the National Security Law (NSL) are compatible with the international standards set out in the International Covenant on Civil and Political Rights (ICCPR).
Talking to the media and foreign politicians have been deemed to be highly risky. People who work on human rights advocacy would need to exercise self-censorship of what they can talk about and who they can meet before they can do their work. It would also create a chilling effect on raising any human rights concerns in the city.
I have engaged in international advocacy in various ways: testifying before the US Congressional-Executive Commission on China; briefing members of the European Parliament’s human rights committee; briefing members of United Nations committees, including the UN Committee against Torture; and briefing diplomats from UN Human Rights Council member states in preparation for the Universal Periodic Review (UPR). If such activities, or similar forms of advocacy, were considered violations of the NSL, this would effectively mean that the regime does not permit any form of advocacy or criticism of the government.
By comparing the convictions of Chow Hang-tung and Lee Cheuk-yan, respectively the vice-chairperson and chairperson of the disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China (Hong Kong Alliance), we can once again see how broadly and vaguely defined the national security offences are, giving the authorities extensive power to prosecute political dissidents under the National Security Law.
There are also contradictory aspects to the development of case law. No matter how problematic or lacking in legitimacy the cases against dissidents may be, the resulting judgments could become precedents that judges feel obliged to follow as part of the common-law system. Once such precedents become established norms, it would be increasingly difficult to challenge subsequent court decisions. Judges may also come to take compliance with the draconian law and established judicial decisions for granted, regardless of whether those decisions are legally sound.
While waiting for the sentencing, we should ask whether the courts in Hong Kong will still consider a sentence reduction for a guilty plea, as has traditionally been the practice. I wonder whether the court will take this into account at all, or whether it could impose an excessively long sentence, or even life imprisonment, as some people have expressed concern. If the court no longer considers a guilty plea as a mitigating factor, I would ask what the rationale is for requiring defendants to make submissions in mitigation. I would also challenge the legal community to explain the purpose of the mitigation process if it no longer has any meaningful effect.
Why do we need a mitigation process if defendants are expected to admit only the facts relating to the actus reus (the guilty act), but not the mens rea (the guilty mind)? As for mens rea, how could the prosecution and the judges establish that engaging in international advocacy could in any way constitute “subverting the state”, “inciting subversion of the state” or “colluding with foreign forces”? How could such an interpretation be legally and logically justified?
The existence of the United Nations and the practice of diplomacy are intended, among other things, to facilitate states’ compliance with their international commitments. How, then, could a person be accused of these offences when their actions consist solely of international advocacy that is consistent with established international norms?
The Hong Kong government and the courts have clearly ignored the importance of ensuring that citizens can exercise their right to freedom of expression, including through international advocacy, meetings and lobbying of foreign politicians and governments. By disregarding these rights, the authorities could easily abuse their power by charging individuals with “collusion” when they are merely exercising their legitimate right to freedom of expression. If international advocacy is no longer permitted and is treated as a criminal activity, ordinary citizens could effectively be criminalised for engaging in what has traditionally been regarded as legitimate international activity.
State leaders can meet with one another to exchange views. Why, then, should citizens be prevented from expressing their views and concerns about human rights abuses and individual cases of human rights violations? Would this not mean that governments could operate without meaningful scrutiny? Such a situation would only serve to legitimise and justify tyranny.
Patrick Poon is a board member and consultant of Tokyo-based Asian Lawyers Network and a member of Lady Liberty Hong Kong. He was previously a Visiting Researcher of the University of Tokyo and the Institute for Comparative Law of Meiji University in Tokyo, Japan, and a Visiting Scholar at the University of St Andrews in Scotland. In his years in Hong Kong, he was a court reporter at the South China Morning Post, an English website editor of China Labour Bulletin, executive secretary and board member of China Human Rights Lawyers Concern Group, executive secretary and board member of Independent Chinese PEN Center, and a China researcher at Amnesty International. His opinion articles have been published in South China Morning Post, Hong Kong Free Press, Radio Taiwan International, Nikkei Asia and Japan News, among others.
Editorial Credit: Ka Hang Wong