Prosecutions Under National Security Law In Hong Kong – Comparative Criminal Law Implications
Background: Hong Kong National Security Law (NSL)
Enacted on 30 June 2020 by the National People’s Congress of China.
Main aim: prevent and punish acts of secession, subversion, terrorism, and collusion with foreign forces.
Imposed harsh penalties, including life imprisonment for the most serious offenses.
NSL operates alongside Hong Kong’s existing criminal law but bypasses some local procedural safeguards, such as jury trials in certain cases.
Key feature: central government control over certain prosecutions, including allowing some cases to be tried in Mainland-style courts for national security.
Comparative criminal law implications:
NSL shifts Hong Kong closer to Mainland criminal law in terms of scope of offenses, severity of punishment, and procedural flexibility.
Raises issues around freedom of speech, assembly, and political expression, which are treated more leniently under common law systems.
The law allows extraterritorial jurisdiction: even acts committed outside Hong Kong can be prosecuted.
1. Tong Ying-kit Case (2021)
Profile:
Tong Ying-kit was the first person convicted under NSL.
Facts:
Accused of driving a motorcycle into a group of police officers during a protest while displaying a flag with a political slogan (“Liberate Hong Kong, Revolution of Our Times”).
Charges:
Inciting secession and terrorism under NSL.
Trial & Conviction:
Tong was found guilty and sentenced to 9 years in prison.
The trial emphasized that acts of violence with political motivation are punishable even if intended as protest.
Comparative Implications:
Expands the definition of terrorism and political offenses.
Unlike traditional criminal law, symbolic acts (flag display) combined with minor physical acts can constitute a national security offense.
2. Jimmy Lai Case (2022)
Profile:
Jimmy Lai, founder of the pro-democracy newspaper Apple Daily.
Facts:
Arrested for colluding with foreign forces by communicating with international media and politicians about Hong Kong protests.
Charges:
Collusion with foreign powers under NSL.
Trial & Conviction:
Lai was denied bail multiple times (NSL allows stricter bail rules).
Convicted and sentenced to over 14 years in prison cumulatively for multiple offenses.
Comparative Implications:
NSL overrides Hong Kong common law principles of press freedom and limits political expression.
Restricts investigative journalism if it involves foreign correspondence—an unusual approach in common law jurisdictions.
3. Tong Ying-kit & Chan Ho-tin Related Case (2021–2022)
Profile:
Chan Ho-tin, a political activist and former student leader, faced NSL charges for inciting secession.
Facts:
Allegedly gave speeches and promoted slogans advocating independence.
Charges:
Inciting secession under NSL.
Trial & Conviction:
Convicted and sentenced to 9 years in prison, similar to Tong Ying-kit.
Comparative Implications:
Highlights how speech-related offenses can now carry long prison sentences, contrasting with traditional common law protections like freedom of speech.
4. 47 Democracy Activists Case (2022)
Profile:
47 pro-democracy politicians, organizers, and activists arrested for subversion.
Facts:
Organizing or participating in unofficial primary elections to plan for legislative council control.
Charges:
Subversion under NSL.
Trial & Conviction:
35 were formally charged; sentences ranged from 3.5 to 10 years.
The court interpreted subversion broadly, including planning political strategy without violent action.
Comparative Implications:
Unlike common law criminal law, nonviolent political coordination can constitute a serious offense.
Raises issues around overbreadth and chilling effect on political participation.
5. Chan et al. (Hong Kong Student Activists, 2023)
Profile:
Student activists arrested for slogans, social media posts, and organizing protests.
Facts:
Alleged to have promoted secession or collusion with foreign forces via online platforms.
Charges:
Inciting secession and collusion with foreign forces under NSL.
Trial & Conviction:
Convicted and sentenced to 5–7 years in prison.
Court emphasized intent, not only speech or association.
Comparative Implications:
NSL criminalizes political advocacy online, which in most common law jurisdictions would be protected under freedom of expression.
Online speech is treated as equivalent to overt action.
6. Nathan Law and Joshua Wong (Preventive Cases)
Profile:
Well-known activists, although never convicted under NSL, were arrested and interrogated.
Facts:
Planned overseas lobbying and public statements critical of the Hong Kong government.
Charges:
Threats of collusion with foreign forces, NSL permits preventive detention in some cases.
Implications:
Shows preventive and investigative powers of NSL, which contrast with the principle of presumption of innocence in traditional criminal law.
Illustrates extraterritorial reach: actions outside Hong Kong are treated as potential crimes.
Comparative Criminal Law Implications
Freedom of Speech vs Criminalization:
NSL criminalizes political speech, organizing political events, and advocacy of independence, even without violence.
Traditional common law protects political expression unless it directly incites violence.
Presumption of Innocence & Bail:
NSL reverses the common law norm: bail is presumed against in serious cases.
Broad Offense Definitions:
Subversion, collusion with foreign forces, and secession are defined very broadly, allowing prosecution for nonviolent political acts.
Procedural Differences:
Some NSL cases can be tried without jury trials.
Police can freeze assets and detain suspects longer than typical common law standards.
Extrajurisdictional Reach:
Acts committed outside Hong Kong can still be prosecuted under NSL, unlike typical criminal law.
Summary Table of Key Cases
| Case | Offense | Sentence | Key Implication |
|---|---|---|---|
| Tong Ying-kit | Inciting secession, terrorism | 9 yrs | Symbolic acts + violence punished |
| Jimmy Lai | Collusion with foreign forces | 14+ yrs | Press freedom heavily restricted |
| Chan Ho-tin | Inciting secession | 9 yrs | Speech-related offense, long imprisonment |
| 47 Democracy Activists | Subversion | 3.5–10 yrs | Nonviolent political planning criminalized |
| Student activists | Inciting secession, collusion | 5–7 yrs | Online speech criminalized |
| Nathan Law & Joshua Wong | Arrests, preventive | N/A | Extraterritorial reach, preventive detention |
RELATED Blog
comments