The Hong Kong government is expanding its application of a long-dormant sedition law in what some lawyers and democracy advocates say is intensifying a squeeze on media freedom.
Evidence of the renewed reliance on the sedition legislation came in late last month when China-ruled Hong Kong targeted two media companies. On Dec. 29, about 200 police raided the office of online news outlet Stand News and arrested seven people, charging two editors with conspiracy to publish “seditious publications.”
Authorities have not fully detailed what led to the charges, but the pro-Beijing Ta Kung Pao and the online publisher DotDotNews listed specific Stand News articles that they deemed seditious, including interviews with local democracy activists and opposition figures — topics that until recently were not out of the ordinary in Hong Kong.
Illustration: Tania Chou
A day earlier, prosecutors leveled a new charge of sedition against Jimmy Lai (黎智英), 74, founder of the shuttered Apple Daily newspaper and some of his top executives.
The charge of sedition, inciting resistance or insurrection against central authorities, stems from colonial-era laws designed to thwart dissent against the British crown, and had not been used in Hong Kong since the mid-1960s, three legal experts said, adding that last month’s sedition charges were the first to be brought against the media since 1967.
Some legal experts say that recent court judgments have empowered authorities to use the controversial National Security Law, imposed on Hong Kong by Beijing in 2020, to bolster colonial-era laws, including sedition.
The security law, enacted after sometimes-violent pro-democracy protests rocked Hong Kong in 2019, gives police extra powers of search, seizure and surveillance, and makes it tougher for those arrested to get bail. Only judges selected for national security duties can handle cases under the law.
The sedition law allows officials to directly target the published content of media operations and does not require prosecutors to prove that an offending article or speech was intended to be seditious, three lawyers said.
“To some extent, the government is better armed now,” University of Hong Kong legal professor Simon Young (楊艾文) said. “The National Security Law provides an enhanced procedural and investigative framework to bring these charges.”
“We can see that at a stroke, the security law has re-tooled these old laws that were largely forgotten,” a barrister whose career has straddled Hong Kong’s handover from Britain to China in 1997 said. “You could say we are now drinking bitter, old colonial wine from new, authoritarian bottles.”
Asked whether the security legislation had enhanced the powers of colonial-era laws such as sedition, the Hong Kong Department of Justice declined to comment, but said the prosecution of offenses endangering national security was “based on admissible evidence.”
“We express our deep regret regarding the governments, media and organizations of the United States and Western countries in respect of their attempt to twist facts and slandering remarks on the enforcement actions taken in accordance with the law,” a government spokesman said.
The actions against Stand News targeted “illegal acts” and had “nothing to do with freedom of the press,” he added.
The latest moves extend a media clampdown over the past year that included the shutdown of Apple Daily and the imposition of fresh staff guidelines on public broadcaster RTHK to ensure that all content complies with the national security law.
WALKING A TIGHTROPE
A full-page article in the China-backed Ta Kung Pao last week criticized the Hong Kong Journalists Association (HKJA) and the Foreign Correspondents’ Club (FCC) for helping to organize a regional human rights media award that honored journalistic works it said had “smeared” the Hong Kong police and Chinese government.
The newspaper, whose articles have often preceded enforcement actions, called on authorities to investigate.
Asked if the government planned to investigate the FCC and the HKJA, a government spokesman said that it does not comment on “speculation.”
“We will continue to spare no efforts in pursuing the legal liabilities of any organizations and individuals endangering national security,” he said.
Keith Richburg, the president of the FCC and head of the University of Hong Kong’s journalism school, said that the closure of Stand News and the arrests “leaves everyone walking on eggshells ... It’s an open question as to whether Hong Kong can continue to thrive and prosper without having that free and open and critical press.”
HKJA chairman Ronson Chan (陳朗昇) dismissed the Ta Kung Pao allegations, and said that the awards process was “independent and fair.”
“Freedom of speech and freedom of the press are not absolute, and can be restricted for reasons including protection of national security,” the government spokesman said, adding that “no one is above the law.”
DIFFICULT TO ENFORCE
Broadly defined by legal experts as a crime of incitement to resist or insurrect, in words or acts, against legal authority, the sedition laws in Hong Kong and elsewhere have long been seen as British colonial relics overtaken by modern statutes.
Hong Kong’s Crimes Ordinance — the legislation that details sedition offenses — stipulates it is a crime to publish anything that brings “into hatred or contempt or to excite disaffection against ... the government of Hong Kong.”
Despite the tough language, some lawyers and academics said that they had long believed sedition offenses would be difficult to enforce. Freedom of speech and other rights protections have been written into modern laws, including Hong Kong’s Bill of Rights and the Basic Law, the former British colony’s mini-constitution since its handover to Beijing in 1997.
Ten academics, criminal lawyers and diplomats interviewed for this article said that their views had changed because the National Security Law’s powers can be applied to older laws, such as sedition.
Some provisions of the security law refer generally to acts “endangering national security,” which judges have ruled effectively extends the law’s reach to cover older, pre-existing laws that involve national security, such as sedition and espionage.
In rulings on pretrial matters for two separate cases last year, including one involving Lai, the Court of Final Appeal said that the security law’s reference to “acts endangering national security” included violations of these older laws.
A District Court ruling in April also said that under the security law, the older offense of sedition was now classified as an indictable offense, making it a more serious crime with a potentially longer statute of limitations and tougher sentencing guidelines, legal experts said.
In the past, the offense of sedition was classified as a summary offense that would be handled by a lower court magistrate alone, without a jury.
While the government’s enforcement hand has been strengthened, the basis on which authorities arrested journalists and charged media organizations needs to be fully tested in Hong Kong’s courts, including the Court of Final Appeal, lawyers, legal experts and diplomats said.
Three criminal barristers said that certain exceptions written long ago into the sedition law that authorities are now relying on were good ammunition for defense counsel.
The Crimes Ordinance states, for example, that it is not seditious to show that the sovereign “has been misled or mistaken in any of [its] measures” or call attention to “matters which are producing ... feelings of ill-will or enmity between different classes of the population of Hong Kong.”
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