The first case of alleged violation of the Hong Kong version of the National Security Law (NSL) was heard in the High Court of Hong Kong on Wednesday (June 23), the first day the NSL came into effect on July 1, 2020, when a Hong Kong man driving a motorcycle hit and injured three police officers in a downtown area and displayed a “Restoration of Hong Kong” flag. The first defendant to be charged with violating Hong Kong’s national security law was a man who drove a motorcycle into three police officers in a downtown area and displayed a banner reading “Restoration of Hong Kong: A Revolution in Our Time. The case was tried without a jury, but by three judges appointed by the National Security Law. Some analysts believe that even if the judges hear the case fairly, the defendant is likely to receive a heavy sentence due to the overriding nature of Hong Kong’s national security laws.
After nearly a year in custody, 24-year-old Tang was escorted by prison van to the Hong Kong High Court on Wednesday (June 23). He was charged with three counts of inciting others to secede from the state, terrorism, and dangerous driving causing grievous bodily harm as an alternative to terrorism.
Court hearing without a jury
Earlier, the Hong Kong Department of Justice, citing the provisions of the National Security Law, directed that the case be heard without a jury by judges designated by the National Security Law, including To Lai-bing, Pang Po-kam and Chan Ka-shun, and that the trial is expected to last 15 days.
The prosecution said in court that on July 1 last year, Tang Yingjie drove a motorcycle with a banner with the slogan “Restoration of Hong Kong, the revolution of the times” and crossed three police lines in Wan Chai, during which people cheered and police officers asked to stop, but the defendant ignored. When the motorcycle passed the fourth line of defense, some police officers tried to intercept it but failed. The motorcycle finally crashed into three police officers. Both they and Tang were injured. Some police officers took a two-month leave of absence as a result.
According to the expert witness report written by Lingnan University history professor Liu Zhipeng, “Restoration of Hong Kong” means that Hong Kong is in the hands of the enemy and wants to return to the status quo ante, i.e., not recognizing Hong Kong as a part of China and treating the Chinese government as an enemy, while “Times Revolution” means changing the ruling system. The “Times Revolution” represents a change in the ruling system, i.e., disagreement with the rule of China and the HKSAR government.
The prosecution also said that the case occurred on the first day of the implementation of the Hong Kong version of the National Security Law. Tang intended to convey the message on the flag and to coerce the central government, the Hong Kong government or the public for political purposes, and his act of rushing to the police line is a serious danger to society and constitutes the crime of terrorist activity.
The prosecution played a video of the day of the incident in court in the afternoon, showing flags and other exhibits, and called a police superintendent as the first witness.
Lawyer: Exclusion of jury untenable
Barrister Xiao Zhiwen told the Voice of America that in Hong Kong, where common law is implemented, generally speaking, the High Court handles serious cases with jury participation. The jury members are randomly sampled and come from different backgrounds, have different political philosophies and represent the conscience and values of the community. According to Xiao Zhiwen, the practice of not having a jury in the Tang Yingjie case and leaving it solely to the national security judge is unconvincing. If the case in question involved classified information such as national defense and security, it would be understandable not to have a jury, but the need to exclude a jury from the Tang Yingjie case is not apparent at this time, and it does not hold water on the grounds of protecting the safety of the jurors.
Xiao Zhiwen said: “I am not saying that these judges will handle things unfairly, but at least these judges are from the same type of background, seems to be insufficient to fully represent the conscience of society. The authorities cited the safety of the jury and their families (as the reason for their exclusion). But the problem is that judges and their families can be in the same situation. This is not a reasonable, persuasive reason. It’s also been said that if jurors are scheduled, the defendant will definitely be released, but I don’t think that should be a consideration.”
Authorities’ allegations criticized as trivial
Hong Kong Institute of Public Opinion’s deputy chief executive Jianhua Zhong, who was interviewed by Voice of America, said, “It seems now that there is no organization behind Tang Yingjie that supports him, and he is not a member of a political group. It is quite far-fetched if you say he is endangering national security. Beijing authorities often criminalize people by invoking concepts such as national security and subversion, which are basically political charges and objectively suppressing political elements. You can say that he drove dangerously with the intention of hurting people, but to elevate it to the level of subverting state power or endangering national security is a bit trivial and clearly intended to make an example of the monkey. To suppress the freedom of speech and expression space with this case.”
Samp, a current commentator who is himself a lawyer, told Voice of America that the focus of Tang’s case is whether the traffic accident was linked to alleged terrorist activities.
Samp said, “The case is that Tang Yingjie rammed three police officers. This was a traffic accident. The defendant’s motive is not in question under strict legal principles. Therefore, the prosecution filed an alternate charge: dangerous driving causing serious bodily injury. This was proved by facts and evidence. It’s a reasonable charge, not related to terrorist activity. If you measure this traffic accident by motive, it’s definitely not appropriate.”
“Restoration of Hong Kong” equals Hong Kong independence?
As to whether the display of the slogan “Restoring Hong Kong, Revolution of the Times” is enough to convict Tang, Samp said it will depend on how the national security judge interprets the slogan.
Samp said, “The slogan ‘Restoration of Hong Kong, Revolution of the Times’ was said by the prosecution to be from the previous year (2019) when it stormed the Liaison Office of the Central People’s Government on July 21, but at that time there were many marches, many ‘peace, reason and non-violence’ ( peaceful, rational, non-violent protesters) were speaking. Do they all fully support Hong Kong independence? It forgets that the core is ‘the restoration of Hong Kong is to realize five major demands’, of course there are many different advocates, such as the call for Hong Kong independence, but you can’t say that speaking this slogan necessarily extends to Hong Kong independence, separation, not recognizing Hong Kong as part of China, seeing the People’s Republic of China as an enemy and so on. “
Thorpe is pessimistic about whether judges can uphold the principle of Hong Kong’s judicial independence under the national security law.
He said, “The judge (in Hong Kong) now, we say, is a ‘legal craftsman,’ meaning that he is completely talking about the words, what it means to ‘incite secession,’ what it means to ‘intend to cause serious social harm’, these are all open-ended, indefinite legal concepts. The problem is that, by the previous standard, a person could not be sentenced for his political advocacy if it was under ‘unconstitutional review’. Since the implementation of the National Security Law, people have said that basically they can be criminalized whether they use force or not.”
NPC holds the power to interpret the national security law
Tang Yingjie’s case is seen as indicative as the first national security law case. Samp believes that even if the three NSCL-appointed judges handle the case fairly, there is no guarantee that the defendants will receive a fair verdict.
Because the national security law has an overriding nature and the power of interpretation is always firmly in the hands of the NPC Standing Committee,” he said. So it’s not really useful for these judges to find him not guilty, because the defendant can be sent to China to be dealt with in accordance with the national security law. So, it can be said that this is a complete deadlock. Now it’s a test of whether this group of judges can take charge, but I’m definitely not optimistic. I think there is a good chance that he will be convicted very heavily. The maximum (sentence) for inciting secession is 10 years, and even if the charges are alternated and he is not convicted of terrorist activities, the sentence for dangerous driving is still seven years, and if it is executed in stages, Tang Yingjie could sit for a very long sentence. This is very sad.”
The Deputy Chief Executive of the Hong Kong Institute of Public Opinion, Mr. Chung Kin-wah, also questioned the ability of the three national security judges to be completely impartial as well as to decide cases without bias.
Chung said, “Some of the judges in Hong Kong have completely adjusted their support for the spirit of the common law, even to the point of questioning whether they have been influenced by the SAR government and the Beijing authorities, because the national security judges are appointed by the SAR government, and it is conceivable that these judges must have certain factors that make the government choose them to hear such cases. I believe the likelihood of incriminating defendants in a harsh manner is quite high.”