In this first of a two-part series, we look at the workings of the law and how ‘soft resistance’ signals a next phase, and more importantly, as the focus shifts squarely to the economy.
A year after being arrested under Hong Kong’s domestic security law, former district councillor and theatre personality Katrina Chan Kim-kam has not been charged but feels society has already punished her.
Two theatre companies she worked with dropped her. An academic institution acted on an anonymous complaint and terminated her part-time teaching job, with no room to appeal.
Earlier this month, she was told to withdraw from a play she had been rehearsing since April for its November opening.
“The theatre company told me they had to ‘play safe’ to avoid trouble,” Chan, 38, told the Post.
Chan was arrested in May last year and accused of publishing seditious materials related to Beijing’s 1989 crackdown on protesters at Tiananmen Square, on a Facebook page about jailed activist Chow Hang-tung.
Out on bail, she has to report to police monthly. A licensed social worker, she has not landed any job in the sector. She will have to inform prospective employers of her current situation. She has been operating a stall selling incense and essential oils at a Sham Shui Po shopping centre.
“I feel stuck,” she said. “It’s difficult for me to plan anything for the future.”
Chan is among 332 people who have been arrested since Beijing imposed the national security law on Hong Kong five years ago, following several months of increasingly violent anti-government protests in 2019.
The law was followed by major reforms of the city’s politics to ensure that only “patriots” ruled Hong Kong. A much-delayed domestic security law, also usually referred to as Article 23, was enacted in March last year.
Apart from restoring order to the city, the security laws had plugged legal loopholes and ensured stability and prosperity for Hong Kong, officials and the business community said.
But their implementation has not always been smooth, as the government battles criticisms over alleged political persecution, the thorny issue of denial of bail, the backlog of cases and the room for free speech along with attacks from foreign countries, especially the United States, which has continued to sanction officials even as recently as a few months ago.
The figures for those arrested have gradually declined from a high of 134 in the first year after the law imposed by Beijing came into effect. Last year, there were at least 14 arrests, all under Article 23.
Increasingly, the authorities have been relying on sedition laws to prosecute those arrested.
Since the return to stability, Hong Kong has put economic development and livelihood issues at the top of the agenda. There is a clear desire to move on and local and Beijing officials have repeatedly underscored Hong Kong’s role as an international hub even as they emphasise the need to be on guard over national security risks amid geopolitical tensions.
Xia Baolong, Beijing’s point man on Hong Kong affairs, said during a visit to the city last week that while there were “complex and severe” external and internal threats, the financial hub had to press on with reforms and development.
He urged the local administration to seize on the advantages of the “one country, two systems” governing principle, enhancing ties with the world and the mainland.
In a show of unity, ministers of different bureaus this year also shared how they would safeguard national security in their purviews ahead of the legislation’s anniversary.
At the five-year mark, observers acknowledged that while the legislation had indeed halted the chaos in Hong Kong and all eyes would be trained on the economy, the next phase would entail refining and defining the contours of the law.
The government should also do more to engage on these aspects of the legislation even as fewer cases surfaced so that people were aware of their rights and freedoms.
“It must be explained that sedition does not criminalise all forms of criticism of the government or state,” said Professor Simon Young Ngai-man of the law faculty of the University of Hong Kong (HKU).
“Rather, constructive and reasoned criticism is well within the law and indeed should be encouraged.”
The law at work
Chief Executive John Lee Ka-chiu has emphasised repeatedly that the national security laws target only a minority, noting recently that the average number arrested each year over the past five years made up only 0.2 per cent of annual arrests.
Of the total 332 arrested, 57 per cent – 189 people and five companies – went on to face charges.
The 165 people convicted made for a conviction rate of 87.3 per cent.
That was similar to the 87.6 per cent conviction rate for various offences dealt with by the Court of First Instance in 2023, but lower than the District Court conviction rate of 95.1 per cent.
Senior Counsel Ronny Tong Ka-wah, a member of the government’s key decision-making Executive Council, noted a decline in “hardcore” offences in recent years, with most cases now involving sedition and acting as “accessories before the fact” without causing substantial harm to national security.
But it would be an “unrealistic fantasy” to have no national security cases in the future given the complex geopolitical environment, he said, warning about the need to guard against “soft resistance”.
Indeed, it has been an official catchphrase in recent years after the term was first coined in 2021 by the former director of Beijing’s liaison office, Luo Huining.
Xia, director of the Hong Kong and Macau Affairs Office who was in the city to mark the fifth anniversary of the Beijing-imposed law, urged the financial hub to focus on economic development and livelihood improvements to take it to the next stage, from “governance to prosperity”. Still, he also saw fit to warn that there remained people who were determined to threaten authorities with new forms of “soft resistance”.
Hongkongers should not forget about the pain when the wounds had healed, he said.
The law imposed by Beijing outlaws secession, subversion, terrorism and collusion with foreign forces and aims to “prevent, suppress and punish crimes” endangering national security.
Of all the cases so far, the trial of former media boss Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily, has attracted the most international attention.
He faces two counts of conspiring to collude with foreign forces and one count of conspiracy to publish seditious material.
He wrapped up his testimony in March, after 52 days on the witness stand. The marathon trial is scheduled to hear closing arguments in August.
The largest national security trial involved 47 opposition figures, some of whom had been detained for three years and eight months by the time the trial ended last November.
Among that group, two walked free while 45 received sentences of between four and 10 years for conspiring to commit subversion through their involvement in the 2020 unofficial “primary election”.
Social worker Lee Yue-shun, one of the two acquitted, said the lack of precedent regarding the national security law had made things tougher for defendants.
“No one – even the most experienced local legal heavyweights – could give you a clear answer. They said they are not familiar with mainland laws, and that is the only responsible answer,” the 31-year-old recalled.
He pleaded not guilty, while more than half of the 47 activists pleaded guilty in exchange for a one-third deduction of their sentences.
National security cases go before three judges appointed by the city leader. The accused in these cases also face a presumption against bail, making it harder to obtain.
HKU law professor Albert Chen Hung-yee said bail was one of the areas in which the Hong Kong courts had to work out how to apply a mainland-imposed law in the city’s common law framework.
“This is not local legislation but legislation of the central government. Hong Kong courts need to deal with how the national security law integrates with local laws in its implementation,” he said.
The bail issue aside, the availability of judges would also need to be ironed out, observers said.
The case concerning the alliance behind Hong Kong’s annual Tiananmen Square vigil will not be heard until November.
The three leaders of the alliance, Chow Hang-tung, Lee Cheuk-yan and Albert Ho Chun-yan, have been remanded in custody since September 2021. Ho was briefly granted bail.
Exco member Tong expressed confidence the backlog would ease soon. “The numerous cases arising from the protests in 2019 placed significant strain on the courts in the past five years. It’s been an extraordinary period that we have now moved beyond, and judicial procedures will become faster,” he said.
A criminal lawyer said that the long wait times for trials were partly due to the difficulty of coordinating available slots among national security judges, who must also handle other cases.
“Removing non-national security cases from these judges’ responsibilities would certainly speed up the processing of national security cases,” the lawyer said. But this could cause further delays in other cases unless judicial resources are increased.
Sedition route
Of the cases dealt with over the past five years, almost two fifths – 162, according to a count by the Post – were turned into sedition charges, reviving a colonial-era law expanded under Article 23.
In the first sedition trial against a media outlet since Hong Kong returned to Chinese sovereignty in 1997, two senior editors of now-defunct Stand News were found guilty of “conspiracy to publish and reproduce seditious publications.” They face up to two years in prison.
Since Article 23 became law in March last year, most security-related arrests have been linked to sedition and six of the eight individuals charged were convicted.
At least 10 arrests were related to social media activities. Among them, handyman Chow Kim-ho was jailed for a year for posting seditious messages on his social media accounts to incite hatred towards central and local authorities.
“Sedition is essentially a speech crime,” HKU law professor Young said, noting that Western democracies had difficulty reconciling speech crimes with liberal values and freedom of expression.
“Speech crimes, such as those that promote hatred and social disintegration, can be justified under human rights law. Yet, people in a free society will still have difficulty accepting this.”
But Elsie Leung Oi-sie, the city’s first justice minister after the 1997 handover, said Hong Kong’s situation was not unique, citing convictions of Catalan separatist leaders in Spain for sedition over their role in an independence referendum in 2017 without the use of violence.
She said court decisions over the past five years had come with detailed judgments establishing a clear framework for interpreting sedition.
“In the past, it was difficult to define what constituted sedition and determine whether the use of force was a necessary element,” she said. “Now it’s clear.”
She said the national security law had not undermined the rule of law, as judgments from Hong Kong’s top court had been widely cited by courts in the UK, Australia and New Zealand.
“Despite criticisms, the reputation of the Court of Final Appeal has been built for decades. We live up to that standard,” she said.
Soft resistance and free speech
As the number of cases declined, there was a risk of society becoming complacent, forgetting that it could still be vulnerable to attacks from within and without, said officials and pro-establishment members.
This partly explained the vigilance that should start by identifying areas of “soft resistance” and observers said this was likely to preoccupy authorities in the next phase of the law’s workings.
The main difficulty, however, will be in applying the law to contain it. There was also a danger of being overly sensitive to where the red lines were, critics said.
Culture chief Rosanna Law Shuk-pui’s recent pledge to step up her bureau’s vetting for subsidies and venues for shows to ensure the arts were not hijacked by acts of “soft resistance” received such a response.
Playwright Candace Chong Mui-ngam was among those who said it would cast a pall on the sector if artists started second guessing and retreating from “imaginary soft resistance” ideas.
Former Bar Association chairman Victor Dawes said residents needed to know where the line was drawn and what the law was.
“Any grey area is not conducive to the business environment as well,” he said.
Fearful of accidentally engaging in “soft resistance” and with the decline of NGOs and civil society groups, activists said they worried that over time the city’s free speech environment itself would shrink.
A check of official documents showed that 256 workers’ unions were deregistered in the past five years, with a peak of 112 disbanding in 2022. In the first five months this year, seven folded.
While officials had repeatedly highlighted that the national security law only targeted a very small minority of people and emphasised the legislation also protected freedom of speech, social worker Lee said there were still residents who did not necessarily feel easily reassured.
“I can feel that ordinary residents are wary of their speeches,” he said.
“You have to guess [where the red line is], and at the same time you have to be your own police, persuading yourself to give up your identity and value.”
He said Hong Kong had always valued free speech that had contributed to the city’s vibrancy. Retaining this was vital to the city’s creative DNA too, he said.
Still, a year after he walked free from the charges, Lee said he would do his bit to keep the spirit going, whether it was carrying on his job, which he hoped to keep low profile, taking part in boxing competitions, dancing shows and reading books about adversity and trauma psychology.
Just last week, he took part in a breakdance show – but on crutches. He had injured his knee in March but did not let it keep him down.
“Dancing with crutches implies that one can still manage to find different alternatives within constraints,” he said.
It was a metaphor, he added, that was also a reflection of his life and a lifestyle he advocated in today’s Hong Kong: finding new ways to thrive despite whatever challenges they faced.
“Everyone has agency and can find relief through things they are passionate about,” he said.
Additional reporting by Jess Ma and Joshua Kwok
Part 2 on Friday: Hong Kong’s battle against negative narratives