Hong Kong awaits verdict in first national security trial

Tong Ying-kit did not give evidence in the trial, which focussed on the meaning of the ‘Liberate Hong Kong’ flag he was carrying.

A court in Hong Kong will deliver its first decision in a national security law case on Tuesday with evidence hinging on the translation and meaning of the protest banner 'Liberate Hong Hong, Revolution of our Times' [File: Miguel Candela/EPA]

Hong Kong, China – That Tong Ying-kit buzzed his motorcycle past a cheering crowd and angry police on July 1, 2020, is not in question, nor that his bike wobbled and crashed and injured three police. What consumed most of the 15 days of Tong’s trial on charges of inciting separatism and terrorism – the first under the territory’s national security law (NSL) – was the meaning of a protest slogan emblazoned on a flag affixed to Tong’s backpack and uttered by hundreds of thousands of Hong Kong people in 2019: “Liberate Hong Kong, Revolution of Our Time.”

To the government, charged with enforcing a broad national security law imposed by Beijing only hours before the incident, Tong was a “terrorist” who seriously injured police after he ignored commands to stop and instead whipped up a crowd to revolt against China, which governs the semi-autonomous territory.

To the defence counsel, Tong was a young man who, before an officer made him lose control and crash, cheered up a crowd angry over a new law, approved without their consent. All he did was display one of the favoured slogans of the anti-government protests that rocked the territory in 2019.

Depending on which interpretation the three judges choose – the case is being decided by judges rather than a jury – 24-year-old Tong could go to prison for 10 years to life. They are expected to deliver their verdict on July 27, with the decision set to answer another important question in today’s Hong Kong: is shouting or displaying a protest slogan a crime?

Law scholars and activists are concerned that a guilty verdict will lead to the conviction of many more government opponents.

The trial shows that the government’s “same enthusiasm to find NSL violations has led to a wholesale attack on free speech,” said Michael Davis, a professor of human rights law who has taught for years in Hong Kong. “It seems from observation that this reflects a zeal to please Beijing.”

Tong Ying-kit is the first person charged under the National Security Law and faces at least 10 years in prison if found guilty [File: Vincent Yu/AP Photo]

To divine the true meaning behind the slogan, a phrase never made clear by the jailed young activist who used it at a 2016 election rally, both prosecution and defence presented witnesses, videos and text. They veered into an academic discussion of various disciplines and theories. Do the eight characters in Chinese refer to revolution as indicated by ancient Yuan Dynasty texts? Do they denote violence through elections, as one historian claimed in his interpretation of Malcolm X? Can the meaning be gleaned from the slogan’s use by the enormous crowds who shouted it or small focus groups that offered theories? Can it be divined by coded data or quantitative correlation? Perhaps the truth lies in theories of revolution, research into election slogans, crowd reaction, the complexities of English translation, semantics and theories of meaning.

Tong “must have intended that other persons should or will commit the offence of secession,” said Anthony Chau, the acting deputy director of public prosecutions. “There were people shouting, cheering and clapping their hands … It is immaterial that the incitement had no effect on other persons.”

“Worldwide, people have been demonstrating and holding up signs,” said Tong’s lawyer, Clive Grossman. “A simple slogan can mean different things to different people.”

Seeking clarity

Planned for years by legal scholars under President Xi Jinping and approved by China’s legislature, Hong Kong’s national security law took effect hours before Tong’s ride.

The law’s immediate goal was to tamp down the 2019 protests that had sometimes descended into violent confrontations and days-long sieges. The law criminalises acts of secession, subversion, terrorism and collusion with a foreign entity. More than 100 people have been arrested, with more than 60 charged, since it came into force.

From the start, western and even local law scholars criticised the NSL as being overly broad and in conflict with Hong Kong’s Common Law tradition. There, due process requires that the government clearly define illegal acts and prove someone’s intent for that person to be held guilty.

Not so with the legal system of mainland China, where the courts are controlled by the Communist Party. Article 20 of the NSL states it is illegal to separate Hong Kong from China or surrender Hong Kong to a foreign country. A person who organises, plans, commits or participates in such an act is guilty. It gives no more details and leaves a lot to interpretation, which is where the judges come in.

Tong’s own thoughts were not aired during the 15-day trial; he did not take the stand. He pleaded not guilty at the start of the trial.

The prosecution’s main witness, Lau Chi-pang, a professor of local and ancient history, testified that the term “gwong fuk,” which English writers have interpreted to mean “liberate” means to take back territory from a foreign enemy. “The meaning is to restore the regime or national territories that had fallen into the enemies or a foreign ethnic group.

“Hong Kong in such situation is equivalent to being occupied by the enemy or a foreign ethnic group,” Lau testified through an English interpreter. “The Hong Kong government is a government controlled by the enemy. The phrase’s second line refers to revolution, to overturn the current regime.”

The same slogan was first shouted five years ago by Edward Leung, a student and politician who punctuated a legislative campaign rally with the chant in 2016. Videos of that event, before a cheering crowd, were shown during the trial. Leung is serving a six-year sentence for rioting that month.

Lau insisted under cross-examination that no one can know Leung’s mind but the phrase would have the same historical meaning for 1,000 years – to rise up and revolt against the government. “ He made this vote equivalent to [a] weapon,” Lau testified. “His ultimate objective was to change this political regime …To a certain degree he was using the vote [for] the purpose of overthrowing the regime.”

The slogan – translated in English as ‘Liberate Hong Kong, Revolution of our Times’ was uttered by a student and politician in 2016. He is currently in prison [File: Alex Hofford/EPA]

The two defence witnesses injected much more uncertainty when debating the meaning.

Eliza Lee, a political scientist at the University of Hong Kong, noted that the term “gwong fuk” had been used by protesters since 2012, when they rallied against goods buyers from mainland China who flooded border towns to buy items like milk powder.

What was Leung trying to convey, asked junior defence lawyer, Lawrence Lau. Lau himself is a national security defendant in another case, charged along 46 others with conspiring to subvert the government by running in a citizens election primary.

Leung “conveyed a political message which was to recover an old order that was lost and to unite freedom-loving people and to bring about significant change,” she said. She acknowledged that Leung had spoken in favour of Hong Kong independence but stressed that just because people chanted it at a rally, it did not mean they necessarily wanted that same political split.

Similarly, it is not clear if crowds in 2019 were agitating for independence when they chanted the slogan, she said.

‘Different things to different people’

Lee and another professor, Francis Lee of Chinese University of Hong Kong, sifted through news reports, commentaries and focus group interviews to discern what crowds meant.

When people first chanted the words in 2019, on July 21, a group had just thrown black paint on the national emblem at a Chinese government office.

“People at that time felt they needed something new to represent their anger,” Eliza Lee testified. “It meant different things to different people.” As the protests dragged on, more people wrote on an internet forum about independence.

Lau, the historian, said that Leung had clearly wanted people to overthrow the government because he mentioned Malcolm X and “ballot is bullet”. That is a wrong translation and understanding, said Lee, who received her graduate education at Syracuse University in New York State.  The Black 1960s activist was trying to urge Black Americans to vote. “It’s a metaphor,” Lee said.

Prosecutors were clearly intent to prove that Edward Leung was a separatist and therefore, so was Tong, by using his slogan. Was Malcolm X a separatist? Lee tried to check her exasperation.

“How much do we need to venture into the complicated history of American racial segregation?” she told the prosecutor. “In order to do justice to what Black nationalism is, and what African-Americans at the time meant by separatism in the situation of apartheid, we have to go into great length.” One judge shut down the line of questions.

Still, a range of academic questions persisted: translations of translations of ancient words for revolution, the significance of waving colonial-era flags, and whether “reclaim” or “recover” overcrowded districts meant the same thing in 2016 as when protesters amassed in 2019.

“I have to say,” she said one long afternoon in court, “a lot of these protesters they are not coherent. They are not sure what they they are asking for either. They have grievances and … I don’t know what they really want to say.”

The national security law was imposed following mass rallies in Hong Kong in 2019 that evolved into sometimes violent anti-government protests [File: Jerome Favre/EPA]

Chau the prosecutor pushed on, asking her to acknowledge that the protests contained anti-China elements, anti-mainland people and those seeking a return to colonial-era rule as well as Hong Kong independence.

With “a screen capture … you capture one moment,” Lee responded. “I don’t know if one particular person holding that banner can represent everyone who participates in the protest.”

By showing her one image or video, “I would have to be a mind reader in order to understand what someone has in mind,” she said.

Source: Al Jazeera