Hong Kong national security trial ruling faithful to the letter and spirit of the Sino-British Joint Declaration

The meaning of the slogan at the heart of the court debate was never in doubt – it means ‘liberate Hong Kong from Chinese rule’. Hongkongers who sought to undermine China’s territorial integrity and the foreigners who supported them were acting against the Joint Declaration

Ronny Tong

Published: 8:30am, 6 Aug 2021

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After a three-week trial under the Hong Kong national security law, an unprecedented three-judge court found a motorcyclist guilty of terrorism and inciting secession when he rode into a police line on July 1, 2020. At the heart of this trial was an intense debate as to what exactly is the meaning of the slogan, “Liberate Hong Kong; revolution of our times”, printed on a black flag carried by the accused.

This slogan had been made popular among politicians advocating localism since 2016, at the height of a wave of anti-mainlander protests. However, in 2019, during the anti-extradition law amendment riots, this slogan was used widely to express dissatisfaction with the special administrative region and central governments.

The court – despite allowing three scholars to give evidence as to the meaning of the slogan for about a week, or a third of the total trial time – eventually found that most of such evidence is irrelevant. This is hardly surprising.

What surprised most people was that the court allowed this academic debate to take place at all.

There is no evidence that the accused is a history or literature scholar and that he intended to use the slogan in some holistic way to further Chinese history or literature. Nor is there evidence that the people in the street who witnessed and understood the incident are academically inclined either.

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Everyone in Hong Kong who had gone through those few tumultuous years knew exactly what the slogan means: it means “liberate Hong Kong from Chinese rule”. No matter how you dress it up or camouflage it, the meaning has never been in doubt. All you have to do is to ask, liberate Hong Kong from what?

And here lies the crux of the matter. We are talking about a political aim to oppose, if not remove, the exercise of Chinese sovereignty over Hong Kong. It is surprising to say the least that the court did not refer to the incident on September 8, 2019.

You may recall that on that day, thousands if not tens of thousands gathered at Chater Garden and marched towards the United States consulate waving American flags. Many carried banners that read “President Trump, please liberate Hong Kong” or similar slogans.

Is inviting a foreign power to invade your own country and liberate you from your own government a matter of free speech? I don’t think any country in the world would agree. Such intention is treasonous under our Crimes Ordinance. Same with the treason acts in the US and Britain.

Did anyone abroad say anything about this? Not a thing.

This is not just double standards, but also a serious case of an attempt to breach the Sino-British Joint Declaration. The Joint Declaration actually includes only one joint declaration; the rest of it is a unilateral declaration by China as regards its basic policy towards Hong Kong.

The one and only joint declaration is set out in clauses 1 and 2 of the document where China and Britain respectively agreed that Hong Kong was to return to China under its sovereign rule. There can be no mistake as to what this means.

It means Britain has to respect and accept that China has sovereignty rights over Hong Kong. So anyone, be it the US president or the British prime minister, trying to undermine or change that constitutional fact, or to allow or encourage others to do that is palpably acting contrary to the only main agreement and accepted fact of the Joint Declaration.

Britain may doubt its own wisdom in signing the Joint Declaration, or question the way in which China seeks to protect its sovereign rights, but it should not be encouraging people, tacitly or otherwise, to undermine Chinese sovereignty over Hong Kong, for example by rewarding them with the right of abode in Britain.

Western countries, politicians and media were quick to condemn the trial of the motorcyclist, but they never condemned any attempt to undermine the territorial integrity of China.

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Over the last few years, neither Britain nor its allies in the Western world had ever uttered anything to indicate their respect and acceptance of Chinese rule over Hong Kong. Rather, they are doing everything they can to pass a not-too-subtle message to some Hong Kong people that it is all right to oppose Chinese rule and there is an escape haven waiting for them if things go wrong.

At the end of the day, the trial was just and fair. Even if there had been no national security law, the accused would probably face serious charges for assaulting three police officers, occasioning significant bodily harm, driving dangerously and other offences which might well result in similar sentences.

The accused himself accepted in his legal challenge the no-jury decision: that the trial was still fair and just without a jury. The accused had the advantage of a large and talented legal team. It was a long and careful trial resulting in a lengthy and meticulous judgment spanning over 60 pages.

Moreover, the court referred to many Commonwealth authorities, including leading authorities from Britain. All of this showcases the independence and integrity of our well-respected judiciary.

Ronny K.W. Tong, QC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy