Hong Kong must operate within one country (of which it forms a part) and between two systems of outside normative expectations (within which it seeks to operate in economic, social and cultural spaces). Hong Kong owes the highest duty to the one country of which it is part and from which it derives its autonomy. That duty is a function of the norms and expectations that are deemed at the core of the relationship between the central authorities and the SAR and by which Hong Kong is judged. Nonetheless, Hong Kong is embedded in webs of responsibility to systems of outside expectations on which its prosperity depends, and as a function of its values and expectations the SAR is judged and consequences attach. These two foreign systems include the international community, on the one hand, and the core of leadership of the liberal democratic united front alliance on the other. The duty to one country is formal and preeminent; the responsibility to the two systems is practical and operational. The great challenge for Hong Kong involves navigating between the two when they collide, sensitive to both the superior duty it owes to One Country and the practical effects of provoking the two outside systems on its its prosperity is to some extent still dependent.
As a consequence, Hong Kong is always balancing. Its paramount loyalty to the state of which it forms a part must remain unquestioned, as must its willingness to accept the leadership and guidance of its vanguard (directly or expressed as policy or rules through the administrative apparatus of the central authorities). That includes accepting guidance not just on its politics, but on its macro-economic, social, and cultural objectives. It also includes ensuring the continuing triumph of the patriotic elements of Hong Kong in the governance of the SAR (学习宣传贯彻习近平主席重要讲话精神座谈会
[Symposium on Learning, Propagating and Implementing the Spirit of
President Xi Jinping's Important Speech] hosted by 中央政府驻港联络办举办香港社会各界
[Liaison Office of the Central Government in Hong Kong]]). At the same time Hong Kong must adjust its operations within the parameters set out for the SAR by the Central Authorities, to conform to the expectations of the international community and to a lesser extent to the leadership core of the liberal democratic united front. This is especially important now in the context of judgments about the legalities of Hong Kong's approach to the protection of the civil and political rights of its inhabitants, residents, and investors from abroad. In that context the balancing cam be quite difficult. On the one hand the SAR must adjust to the consequences of nudging legislation from the leadership core of the liberal democratic united front (see, e.g., Hong Kong Policy Act (S. 1731 Pub.L. 102–383; 106 Stat. 1448 (adding 22 U.S.C. §§ 5701–5732) as amended by the Hong Kong Human Rights and Democracy Act, S. 1838; Pub.L. 116–76 (adding 22 U.S.C. §§ 5725–5726, and amending 22 U.S.C. § 5721) (2019)). On the other, it must harmonize the application of international fundamental human rights covenants (and specifically in this context the International Covenant for Civil and Political Rights) in the SAR with the expectations of such application by international oversight bodies. This later sometimes converges with the objectives of the liberal democratic united front (see, e.g., here: US State Dept. Country Report--Hong Kong).
Both balancing acts were very much on display this week.
First,
The United Nations Human Rights Committee on Thursday began reviewing Hong Kong’s rights record for the first time since Beijing imposed its national security law, amid questions about whether groups making submissions to the meeting could fall foul of the legislation. . . Secretary for Constitutional and Mainland Affairs Erick Tsang and several other top officials attended the meeting in Geneva via video link. In his opening speech, which lasted just under 20 minutes, Tsang said the government had done much to protect human rights in Hong Kong. . . (UN rights committee seeks assurances hearing participants from Hong Kong won’t be targeted under security law ).
The position and actions of Hong Kong were criticized by the Human Rights Committee (the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its States parties).
“I note, honourable secretary, your comment about the events that precipitated this law, but I must observe that it was done overnight, without consultation, and bypassing the local legislature,” the committee’s vice chair Christopher Arif Bulkan said. The Guyanese lawyer also asked Hong Kong officials whether civil society organisations (CSOs) taking part in the current review would be accused of violating the national security law (NSL). “Can you provide assurances that the CSOs who participate here today, and over the next three days, are not in danger of prosecution or victimisation under the NSL, for such engagement?” Bulkan asked. (UN rights committee seeks assurances hearing participants from Hong Kong won’t be targeted under security law ).
Erick Tsang attempted to meet these objections in his opening and closing statements. These follow below. Both statements are models of discursive mediation between systemic expectations that are at their respe3ctive cores substantially incompatible. Hong Kong musty have a measure of both--one is at the center of its governance, the other is necessary for its economic prosperity. The discursive mediation is built on the investing of terms with double meanings--one set of meaning will resonate with the territorial sovereign; the other is meant to resonate sufficiently with HK's business elements.
The report concludes that if Hong Kong’s Justice Department and prosecutors continue to expand arbitrary detention and political prosecutions, the United States and the international community should consider taking targeted actions to address the erosion of the rule of law, including through additional sanctions under the Hong Kong Autonomy Act and the Hong Kong Human Rights and Democracy Act.
For China, of course, the reverse is true--the measure of autonomy between Hong Kong and the rest of China is taken by reference to its economic policies rather than with respect to its application of principles of civil and political rights. Hong Kong is autonomous because it remains market driven in the sense that markets are less bent to the objectives of the state or of the Chinese vanguard. The measure of that autonomy is calculated by the distance between the role of the market in Hing Kong versus that of socialist markets in the rest of China. Autonomy grounded in human rights does not map the same way except to the extent that some measure of latitude is permitted in the forms of governance given Hong Kong's history.
The space between these points--between the expectation of the country within which Hong Kong exists and systems of outside normative expectations; between autonomy grounded in economics versus autonomy grounded in differences in human rights-- that space maps the terrains the Hong Kong must manage in its international activities, especially as they affect economic activities (The
Double Happiness (囍) of Hong Kong: 習近平在慶祝香港回歸祖國25周年大會暨香港特區第六屆政府就職典禮上的講話
[Speech by Xi Jinping at the Celebration of the 25th Anniversary of
Hong Kong's Return to the Motherland and the Inauguration Ceremony of
the Sixth Government of the Hong Kong Special Administrative Region]). This s a space made more complicated still by the current state of the Russo-Ukrainian war and the lines that separate China and its networks from the leading forces of the liberal democratic united front.
Erick Tsang's opening and closing statements, along with the CECC Staff Report follow.
Opening statement by SCMA at UN Human Rights Committee meeting on HKSAR's fourth report in light of International Covenant on Civil and Political Rights (English only) (with photos)
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Following is the opening statement by the Secretary for Constitutional and Mainland Affairs, Mr Erick Tsang Kwok-wai, on the Hong Kong Special Administrative Region (HKSAR)'s fourth report in light of the International Covenant on Civil and Political Rights (ICCPR) at the meeting of the United Nations Human Rights Committee today (July 7):
Madam Chairperson, distinguished members,
As the Secretary for Constitutional and Mainland Affairs of the Hong Kong Special Administrative Region Government of the People's Republic of China, that's the HKSAR Government, I have the great honour to have this opportunity to address you on the implementation of the International Covenant on Civil and Political Rights in the HKSAR. First of all, I wish to thank Ambassador Chen Xu, Permanent Representative of the People's Republic of China to the United Nations Office at Geneva and Other International Organisations in Switzerland, for making the necessary arrangement for our attendance online and for his kind introductory remarks.
This year marks the 25th anniversary of the establishment of the HKSAR. The HKSAR is an inalienable part of the People's Republic of China. We are a local administrative region that enjoys a high degree of autonomy under "one country, two systems" and comes directly under the Central People's Government of our country. Over the past quarter century, the HKSAR has been implementing "one country, two systems", which has proven to be the best institutional arrangement to ensure Hong Kong's long-term prosperity and stability and to serve the fundamental interest of our nation. As President Xi Jinping stated that, the policy of "one country, two systems", having been tested and proved time and again, enjoys the full support of more than 1.4 billion people of the motherland, has the unanimous endorsement of Hong Kong residents, and is widely recognised by the international community.
The legal basis for implementing "one country, two systems" is the Constitution of the People's Republic of China and the Basic Law of the HKSAR. The Constitution of the People's Republic of China and the Basic Law provide constitutional guarantee for fundamental rights and freedoms, including the right to equality before the law, and is buttressed by the rule of law and an independent judiciary. Article 39 of the Basic Law further provides that the provisions of the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.
Safeguarding human rights and freedoms is a constitutional duty of the HKSAR Government. The Government attaches the utmost importance and is firmly committed to the protection of human rights, which has been upheld firmly, and across the board, by all our government bureaux and departments. Today, I have some other key representatives of the HKSAR Government and they are:
Mr Llewellyn Mui, Solicitor General, and his colleague Mr Vernon Loh, both from the Department of Justice;
Mr Esmond Lee, Deputy Secretary for Education;
Miss Shirley Yung and Mrs Apollonia Liu, who are Deputy Secretaries for Security;
Mr Joe Chow, Deputy Commissioner of Police; and
Mr Raymond Ho, Deputy Commissioner of the Labour Department.
Madam Chairperson, as we see it, our submission of the periodic reports to your Committee, the subsequent response to the Committee's "List of Issues", and these meetings are all very good opportunities to promote our mutual understanding with the international community. In the process of compiling the fourth report, we have widely consulted members of the Legislative Council, NGOs and members of the public. Such consultation processes and exchanges have also helped heighten our community's general awareness and interest in the Covenant and human rights issues.
I wish to express our appreciation to the Committee for your "List of Issues" issued in August 2020. The questions raised in the List have given us the opportunity to provide clarifications and updates relating to some key areas after the submission of the fourth report to the Committee in September 2019.
I would like to highlight two critical developments in recent years to help illustrate our Government's commitment to firmly upholding the principle of "one country, two systems" while safeguarding people's rights and freedoms. They are the enactment of the Law of the People's Republic of China on Safeguarding National Security in the HKSAR in June 2020, and the improvements to the electoral system of the HKSAR made last year.
The Hong Kong National Security Law
Allow me to take you back to three years ago, to June 2019 when the HKSAR faced unprecedented challenges which have derailed "one country, two systems" and paralysed the Government.
For those of you who are familiar with Hong Kong, it would be no exaggeration to say that that was the darkest time of Hong Kong. For almost one whole year, Hong Kong was held hostage by the rioting mobs. Citizens witnessed regular outbreaks of serious riots across the city. Never before had our society seen such violent scenes, with thousands of petrol bombs being thrown and fire set on sundries, citizens holding views different from the mobs being attacked viciously, public properties and facilities being vandalised, and widespread blockage of traffic. The Legislative Council building was stormed and seriously damaged by a violent mob. There were blatant attempts to incite Hong Kong's independence and of foreign interference. That was the type of horrible menace that innocent Hong Kong citizens were facing at that time. Such acts of secession, violence and terrorism, together with foreign interference in Hong Kong's affairs, seriously jeopardised national sovereignty, unity and territorial integrity.
Ensuring national security is the responsibility of all governments. To stop and suppress those violent, subversive and terrorist activities, so as to safeguard the long-term prosperity and stability of Hong Kong and uphold the "one country, two systems" regime, the Standing Committee of the National People's Congress timely and resolutely adopted the Law of the People's Republic of China on Safeguarding National Security in the HKSAR in June 2020.
As a matter of fact, the Hong Kong National Security Law upholds the rights and freedoms of Hong Kong people as well as the high degree of autonomy of the HKSAR. It clearly stipulates that the HKSAR shall protect the rights and freedoms enjoyed by residents under the Basic Law and the provisions of the ICCPR and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong in accordance with the law. It also stresses the rule of law including the presumption of innocence, the right to defend oneself, and protection against double jeopardy. The above notwithstanding, it is a well-known principle that many rights and freedoms recognised in the ICCPR are not absolute, and may be subject to restrictions as provided by law if it is necessary for the protection of national security, public safety, public order or the rights and freedoms of others, etc.
The effect of the Hong Kong National Security Law is obvious and direct. The civil unrest in Hong Kong has since subsided. Street violence substantially reduced. The law has restored peace and stability. People returned to their day-to-day life in peace, and society has returned to normal. The economy has begun to recover, except for the reason of the pandemic. For example, since the implementation of the Hong Kong National Security Law until this April, funds raised through initial public offerings in the HKSAR had increased by 30 per cent, and the average turnover of the stock market had lifted by 60 per cent. Comparing 2020 with 2019, the value of assets under management for the asset and wealth management industry surged 20 per cent. No doubt, the Hong Kong National Security Law has effectively restored stability in our society and helped Hong Kong come out of the shadow of violence.
It should also be stressed that in Hong Kong, no person is above the law. The status, wealth, political power or background of anyone are all irrelevant. Law enforcement actions only target on criminal acts, and they are all based on evidence, strictly according to the law and for the acts of the persons concerned, absolutely having nothing to do with their background. Hong Kong is renowned for having a fair and mature criminal justice system. The principle of prosecutorial independence by the Department of Justice is constitutionally guaranteed. When adjudicating cases, the judges in Hong Kong remain independent and impartial in discharging their judicial duties, free from any interference. Judgments are also made public with elaborate reasoning on decisions.
Improving Hong Kong's Electoral System
National security and political security are inseparable. The emergence of acts and activities endangering national security was fuelled by persons conspiring with external forces who managed to get their way into public offices through open elections. Those people made use of the status of their public offices to obstruct or even paralyse the operation of the Government, and glorified the violent acts of rioters, trying to sway public opinion to bring down the Government. Some even colluded with external forces to undermine both our country's and Hong Kong's security and interests. The chaos exposed loopholes and deficiencies in Hong Kong's electoral system at that time.
The National People's Congress, by having recourse to the Constitution of the People's Republic of China, made provision not only for the city's good governance but also for the sustained success of the "one country, two systems" policy. Given the situation that arose in Hong Kong two years ago, the National People's Congress acted legitimately in making adjustments to Hong Kong's electoral system that were absolutely necessary to rectify the problems. In March 2021, the National People's Congress adopted the Decision on Improving the Electoral System of the HKSAR (the Decision), which provides a robust systemic safeguard for "patriots administering Hong Kong". In accordance with the Decision, the Standing Committee of the National People's Congress then adopted the amended Annexes I and II to the Basic Law.
Pursuant to the Decision and the amended Annexes I and II to the Basic Law, the HKSAR Government enacted local legislation to implement the improved electoral system. The new electoral system, while amending and improving the electoral methods for the Chief Executive and the Legislative Council, further introduces a mechanism for reviewing the eligibility of candidates for Election Committee members, for the office of Chief Executive and for members of the Legislative Council. This series of institutional mechanisms put in place legal safeguards to ensure a full application of "patriots administering Hong Kong". Keeping political power in the hands of patriots is a political rule commonly practised in the world. No one in any country or region in the world will ever allow political power to fall into the hands of forces or individuals who do not love, or even sell out or betray, their own country.
Since then, three public elections under the improved electoral system, namely the Election Committee Subsector Ordinary Elections, the Legislative Council General Election and the Chief Executive Election, were conducted smoothly, in an open, fair and honest manner.
The improved electoral system represents a quantum leap in terms of the unprecedentedly broad coverage and balanced composition of public voices of all walks of life in the Election Committee and consequently the Legislative Council compared to previous terms. Business leaders, grassroots organisations, representatives from neighbourhood committees, representatives of associations of Hong Kong residents in the Mainland, and Hong Kong representatives in relevant national organisations are added to the Election Committee composition. Membership of the Legislative Council is also increased from 70 to 90, spreading across different backgrounds and political spectrum. This enables all social sectors to be represented in a fair and balanced manner.
The new legislature is now rid of extremists who wish to obstruct or even paralyse the operation of the Government without any intention of entering into constructive dialogue to represent the interests of all Hong Kong people. There is popular support for early solutions to long-standing livelihood problems. The newly elected members have been displaying commitment to serve the interests of Hong Kong wholeheartedly. The quality of legislative scrutiny and debates as well as the efficiency of the Legislative Council have significantly improved.
Let me also take this opportunity to point out that the democratic process of Hong Kong has really started only after China's, our motherland, resumption of the exercise of sovereignty in 1997. The democratic development of Hong Kong is clearly defined under the Basic Law. It stipulates that the method for selecting the Chief Executive shall be specified in the light of the actual situation in the HKSAR and, in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. Citizens' rights such as the right to vote, to stand for election, and the freedoms of speech and of the press, are well enshrined in the Basic Law. The exercise of these rights is well protected, consistently with the provisions of the ICCPR applicable to Hong Kong.
Conclusion
This year marks the 25th anniversary of the establishment of the HKSAR and our reunification with our motherland. With order restored by the Hong Kong National Security Law and the electoral system improved, it is high time for Hong Kong to start a new chapter of development, one that guides Hong Kong from stability to prosperity. The HKSAR Government will continue to work with the whole community to fight against the pandemic, improve people's livelihood, strive for economic development, build a caring and inclusive society, integrate the HKSAR into the overall development of the country, as well as join hands with relevant parties in promoting the opportunities brought about by the Guangdong-Hong Kong-Macao Greater Bay Area and our country's 14th Five-Year Plan, thereby expanding the room for development of young people and injecting impetus into Hong Kong's development.
Madam Chairperson and distinguished members, we look forward to fruitful and constructive exchanges with the Committee on the HKSAR's fourth report in the light of the ICCPR. Thank you.
Ends/Thursday, July 7, 2022
Issued at HKT 18:40
Closing remarks by SCMA at UN Human Rights Committee meeting on HKSAR's fourth report in light of International Covenant on Civil and Political Rights (English only) (with photos)
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Following are the closing remarks by the Secretary for Constitutional and Mainland Affairs, Mr Erick Tsang Kwok-wai, on the Hong Kong Special Administrative Region (HKSAR)'s fourth report in light of the International Covenant on Civil and Political Rights (ICCPR) at the meeting of the United Nations Human Rights Committee today (July 12):
Madam Chairperson, distinguished members,
It's a great pleasure here to attend the Human Rights Committee's meetings on the HKSAR's fourth report in the light of the ICCPR. They give us the opportunity to present the developments made since the submission of the third report in 2011. The meetings also enable us to have frank and constructive exchanges with members of the Committee to dispel doubts on the HKSAR's human rights situation.
Hong Kong has been a Special Administrative Region of the People's Republic of China since 1997 and has been implementing the "one country, two systems" policy which is underpinned by the Constitution of the People's Republic of China and the Basic Law of the HKSAR. The HKSAR mirrors, in all significant institutions and policies, the Hong Kong that existed before July 1, 1997. There has been continuity as well as significant progress. For instance, Hong Kong has continued to play to its commercial, financial and legal strengths. In 2021, Hong Kong was acknowledged as the world's freest economy by the Fraser Institute. Judicial independence remains solid and robust. Hong Kong's rule of law has been consistently recognised globally in the Worldwide Governance Indicators project of the World Bank. Hong Kong has been consistently above the 90th percentile in the aggregate indicator in respect of the rule of law, showing a remarkable improvement from 69.85 back in 1996.
Human rights are guaranteed constitutionally by both the Constitution of the People's Republic of China and the Basic Law of the HKSAR, and is underpinned by the rule of law and an independent judiciary. The provisions of the ICCPR as applied to the HKSAR have already been incorporated into local law by the Hong Kong Bill of Rights Ordinance.
Both the Central People's Government and the HKSAR Government are determined to make "one country, two systems" a continued success. However, events in the HKSAR in recent years, particularly the serious violence in 2019 posed challenges to the "one country, two systems" principle and endangered sovereignty, national security and Hong Kong's stability.
Against this background, the Standing Committee of the National People's Congress adopted the Law of the People's Republic of China on Safeguarding National Security in the HKSAR in June 2020. The Hong Kong National Security Law is vital in bringing the HKSAR back on track and safeguarding our country's sovereignty, security and development interests. In implementing the law, the legitimate rights and freedoms of Hong Kong people are protected and respected, as especially provided for in the law. Our fundamental rights and freedoms remain intact under the Basic Law, which also provides that, among others, the provisions of the ICCPR as applied to the HKSAR shall remain in force. As we have explained over these three days' meetings, there is no cause for concern that the legitimate rights and freedoms as well as the rule of law of the HKSAR are under threat after the adoption of the Hong Kong National Security Law.
First of all, the National Security Law does not affect the common law system in Hong Kong. Secondly, the well-established criminal justice system similarly applies to national security offences. Thirdly, judges remain independent and impartial while adjudicating cases strictly in accordance with law and evidence, and are free from any interference. Principles such as the presumption of innocence and right to defend oneself continue to be applied in cases concerning national security.
To attain long-term stability, the National People's Congress, at the constitutional level, adopted the Decision to improve the electoral system of the HKSAR. In so doing, the Central People's Government is faithfully exercising its overall jurisdiction over the HKSAR; fully supporting the HKSAR Government to put things back on the right track and govern the HKSAR in accordance with the law; and protecting the well-being of over 7 million residents of the HKSAR.
The overarching approach for improving the electoral system of the HKSAR is to enhance the balanced and orderly participation, and ensure broader representation in the political structure through the reconstituted Election Committee. In the new system, the Election Committee comprises 1 500 members from five sectors, thereby enhancing its representation. The number of seats in the Legislative Council is increased from 70 to 90 and all of them are returned by election, thereby upholding residents' right to vote and to stand for election.
The Election Committee is composed of representatives from different sectors of the Hong Kong community. Since it elects some of the legislators and nominates candidates for the Legislative Council elections, it helps go beyond the vested interests of specific sectors, districts and groups, and makes the Legislative Council more representative of the overall interest of Hong Kong. Moreover, as the Election Committee elects the Chief Executive and some legislators, this ensures that they share the same political belief, which is conducive to effective communication between the executive authorities and the legislature as well as the implementation of the executive-led governance structure as enshrined in the Basic Law.
Through constructing a democratic system that is consistent with the actual situation of Hong Kong, and fully conforms to the constitutional order under the "one country, two systems" principle and manifests Hong Kong characteristics, Hong Kong is now back on the right track.
I trust Madam Chairperson and members would agree that every place has its own historical, cultural and political background. There is no cure-all in respect of an electoral system and improvements to be made. The Standing Committee of the National People's Congress, when deliberating the amendments to Annexes I and II to the Basic Law, has already taken into account the actual situation in Hong Kong. It should be noted that the ultimate aim of universal suffrage, to be achieved in light of the actual situation of Hong Kong and in accordance with the principle of gradual and orderly process, as specified in Articles 45 and 68 of the Basic Law, has never been changed.
The United Nations Human Rights Committee can rest assured that the HKSAR Government is firmly committed as ever to the protection of human rights and always seeks to make improvements suited to Hong Kong's realities. This is evident in, just to name a few, the introduction of statutory paternity leave in 2015; the establishment of a Commission on Children in 2018 to formulate long-term targets and strategic directions concerning the holistic development and important growth stages of children; the enhancements of legal protection from discrimination and harassment under the four anti-discrimination ordinances in 2020 and 2021; the efforts to combat doxxing acts through amendments to the Personal Data (Privacy) Ordinance in 2021 which has struck a fine balance between protection of privacy and freedom of speech; and the improvements in the handling of non-refoulement claims through amendment to the Immigration Ordinance in 2021.
This year marks the 25th anniversary of the establishment of the HKSAR. Our anniversary theme is "A New Era - Stability • Prosperity • Opportunity", to highlight the abundant opportunities of Hong Kong and the bright future ahead. Madam Chairperson, with order restored by the Hong Kong National Security Law and the electoral system improved, the HKSAR will turn over a new leaf and forge ahead with openness, diversity and harmony under the successful and well-proven "one country, two systems". Thank you.
Ends/Tuesday, July 12, 2022
Issued at HKT 20:01
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
HONG KONG PROSECUTORS PLAY A KEY ROLE IN CARRYING OUTPOLITICAL PROSECUTION
July 12, 2022
SUMMARY
The Hong Kong government’s hardline approach to dissent and pro-democracy views, and the growing number of political prisoners, raises serious concerns about the erosion of the rule of law in the city. A stable legal system, the free flow of news and information, and guaranteed rights protections have undergirded Hong Kong’s economic and cultural vitality and were critical to both business confidence and U.S.-Hong Kong relations.
If Hong Kong’s prosecutors are allowed to exercise the discretion given them under the city’s Prosecution Code, the number of political prosecutions and arbitrary detentions could dramatically decrease, as at least 10,500 people were arrested for political and protest-related activity. However, the growing number of political prisoners in Hong Kong and the role of the Justice Department and prosecutors in expanding arbitrary detention may require actions from the United States and the international community to address the erosion of the rule of law and human rights, including additional sanctions authorized by the Hong Kong Autonomy Act and the Hong Kong Human Rights and Democracy Act.
- Background
Hong Kong’s Basic Law provides that “[t]he Department of Justice . . . shall control criminal prosecutions, free from any interference.” Within the department, the prosecutorial function is discharged by the Prosecutions Division and the National Security Prosecution Division. The latter was created in June 2020 by Article 18 of the National Security Law (NSL), but its operations and staffing have remained opaque, as the government has refused to disclose relevant details. Public reporting shows that cases involving national security and those arising from the pro-democracy protests in 2019 primarily have been handled by prosecutors in the Prosecutions Division’s Special Duties team, which was set up in mid-April 2020, two months before enactment of the NSL.
In December 2021, Director of Public Prosecutions Maggie Yang Mei-kei, who heads the Prosecutions Division, issued a yearly review in which she acknowledged that some prosecutions carried out by her division were “politically sensitive” but maintained that her team adhered to prosecutorial independence as required by the Basic Law and the Prosecution Code. The yearly review, however, made no mention of prosecutions involving alleged national security, which observers have described as political persecution.
The increasingly apparent political motivation behind the department’s actions had provoked some internal dissent, but such voices have not been heard since 2019, possibly due to retaliation. During the 2019 protests, a group of prosecutors questioned the integrity of their leadership anonymously in an open letter, saying that the then-Secretary of Justice and Director of Public Prosecutions placed political considerations above the Prosecution Code when they decided to charge 44 protesters with rioting the day after police arrested them at a protest against police brutality. Another prosecutor also wrote to the leadership criticizing the Hong Kong government’s handling of the protests, but he was later suspended and faced further possible disciplinary action.
Since June 2019, the Department of Justice has prosecuted at least 2,944 individuals on NSL and protest-related charges, some of which infringed on the universal human rights of a wide range of people including protesters, journalists, civil society workers, and opposition political figures. The Commission has identified the Hong Kong government prosecutors responsible for some of these cases:
- The Prosecutors
- Maggie YANG Mei-kei[1] is Director of Public Prosecution, the head of the Prosecution Division.[2] Yang was promoted in August 2021 from her post as head of the Special Duties team two weeks after she reportedly made a trip to Beijing with the Secretary of Justice.[3]
- Yang was the lead prosecutor in the case involving 47 pro-democracy activists who were arrested for organizing or participating in the informal primary election in July 2020 ahead of the scheduled Legislative Council election.[4] In March 2021, she sought to deny bail for the detainees and appealed 11 of the 15 cases in which the detainees were granted bail.[5]
- Anthony CHAU Tin-hang[6] is acting Deputy Director of Public Prosecution of the Special Duties team.[7]
- Chau prosecuted protesters Leon Tong Ying-kit and Adam Ma Chun-man and secured convictions against them on charges including “inciting secession” for displaying or chanting slogans such as “Liberate Hong Kong, Revolution of Our Times.”[8] Ma’s case in particular, as one that involved only speech,[9] represents a setback for free speech protection in Hong Kong and a departure from the government’s previous deference to the Johannesburg Principles, which limits government restrictions on speech and access to information on national security grounds.[10]
- Laura NG Shuk-kuen[11] is acting Senior Assistant Director of Public Prosecutions for the Special Duties team.[12]
- Ng oversaw the prosecution of seven editors and executives of the now-defunct pro-democracy online publication Stand News on the charge of “conspiracy to publish seditious content.”[13] While the offense is not criminalized in the NSL, the case is being heard by a judge designated to hear NSL cases.[14]
- She also is responsible for prosecuting five trustees of the 612 Humanitarian Relief Fund that provided assistance to arrested protesters,[15] and five speech therapists who authored children’s books deemed to convey anti-government messages.[16]
- William SIU Kai-yip[17] is acting Senior Assistant Director of Public Prosecutions for the Special Duties team.[18]
- Siu is one of two prosecutors who handled the “unauthorized assembly” case against 26 pro-democracy activists—including Jimmy Lai Chee-ying, Lee Cheuk-yan, Albert Ho Chun-yan, Chow Hang-tung, and Joshua Wong Chi-fung—for participating in a June 2020 vigil commemorating the 1989 Tiananmen protests.[19]
- Andy LO Tin-wai[20] is acting Assistant Director of Public Prosecutions for the Special Duties team.[21]
- Lo is responsible for prosecuting four senior editors and executives of the now-defunct pro-democracy news outlet Apple Daily on the charge of “collusion with a foreign country” in conspiracy with Apple Daily’s founder Jimmy Lai and others, alleging that they had asked foreign countries to impose sanctions on Hong Kong and Chinese officials.[22] The NSL case against Jimmy Lai is being prosecuted by Ivan Cheung Cheuk Kan.[23] British lawyer David Perry, whom the Department of Justice instructed to prosecute Jimmy Lai and eight others on a separate “unauthorized assembly” offense, withdrew from the case.[24] A former policy advisor welcomed the move, saying, “British barristers should not become part of the repressive apparatus of President Xi’s dictatorship.”[25]
- Ivan CHEUNG Cheuk-kan[26] is acting Assistant Director of Public Prosecutions for the Special Duties team.[27]
- Besides the above-mentioned NSL case against Jimmy Lai, Cheung is responsible for prosecuting student activist Tony Chung Hon-lam on the charges of “secession” and “money laundering.”[28] With respect to the latter charge, reports did not indicate that it was supported by wrongdoing independent of Chung’s activism.[29]
The Commission also observed that other prosecutors (who are not or cannot be confirmed to be part of the Special Duties team) have handled political cases in varying degrees of involvement. They include—Alice CHAN Shook-man,[30] Crystal CHAN Wing-sum,[31] Cherry CHONG Man-yan,[32] Derek LAI Kim-wah,[33] Wilson LAM Yi Yeung,[34] Edward LAU Wan-cheung,[35] Vincent LEE Ting-wai,[36] Karen NG Ka-yuet,[37] and Jennifer TSUI Sin-chi.[38]
- U.S. Policy Options
Under U.S. law, foreign persons who violate human rights or undermine Hong Kong’s autonomy may be subject to sanctions. The Hong Kong Human Rights and Democracy Act of 2019 obligates the President to deny entry to the United States and block assets of foreign persons identified as being responsible for human rights violations including arbitrary detention.[39] While “arbitrary detention” is not defined in the law, the UN Working Group on Arbitrary Detention considers a detention arbitrary if, for instance, it is used to suppress the exercise of universal human rights or is applied in a discriminatory manner based on a person’s political opinions.[40] The Hong Kong Autonomy Act of 2020, which was enacted shortly after the NSL, similarly provides for sanctions on foreign persons who have “materially contribute[d] to the failure of the Government of China to meet its obligations under the Joint Declaration or the Basic Law,” obligations that guarantee that Hong Kong “will enjoy a high degree of autonomy.”[41]
Based on these legal authorities and Executive Order 13936, the Department of the Treasury in August 2020 imposed sanctions on 11 individuals “for undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.”[42] Among them is then-Secretary of Justice Teresa Cheng Yeuk-wah, whom the U.S. Government sanctioned for “being responsible or involved in developing, adopting, or implementing the National Security Law.”[43]
On July 1, 2022, Paul LAM Ting-kwok took office as the new Secretary of Justice.[44] Lam expressed that he was not concerned about being sanctioned,[45] and Reuters reported that he “is widely expected to continue to oversee the tough prosecutorial approach of his predecessor, Teresa Cheng, against opposition figures, activists and protesters.”[46] But prosecutors within the department are free to make decisions for themselves, as the Prosecution Code specifically grants them prosecutorial discretion, stating that they “shall not be bound to prosecute an accused person in any case in which [they] may be of [the] opinion that the interests of public justice do not require their interference.”[47]
ENDNOTES
[1] Chinese name in traditional characters: 楊美琪.
[2] “Maggie Yang Mei-kei Appointed as Head of Prosecution,” Standard, August 13, 2021, https://perma.cc/J42K-MALY.
[3] “Maggie Yang Mei-kei Appointed as Head of Prosecution,” Standard, August 13, 2021, https://perma.cc/J42K-MALY; “Luzhengsi lililuan xingshi jiankong zhuanyuan weiyou renxuan Yang Meiqi huo wei chuli sangeyue” [Department of Justice is a mess; Maggie Yang appointed in acting capacity for three month as there are no candidates for the Director of Public Prosecution position], On.cc, July 2, 2021, https://perma.cc/C8RL-KVBU; Chris Lau, “Hong Kong Prosecutor Leading National Security Law Case against 47 Opposition Figures Takes Key Justice Department Role,” South China Morning Post, August 13, 2021.
[4] Michael Shum, “Court Battle Drags on for 47 Activists, Politicians,” Standard, March 3, 2021, https://perma.cc/VS88-ECU2; Chris Lau and Brian Wong, “Hong Kong National Security Law: Defence Slams ‘Draconian’ Case against 47 Opposition Figures—but Proceedings Halted after Defendant Faints,” South China Morning Post, March 1, 2021.
[5] Chris Lau and Brian Wong, “Hong Kong National Security Law: Defence Slams ‘Draconian’ Case against 47 Opposition Figures – but Proceedings Halted after Defendant Faints,” South China Morning Post, March 1, 2021; Chris Lau, “National Security Law: Surprise U-turn as Hong Kong Prosecutors Drop Challenge to Four Defendants Receiving Bail in Case Involving 47 Accused Opposition Activists,” South China Morning Post, March 5, 2021.
[6] Chinese name in traditional characters: 周天行.
[7] Hong Kong SAR Government, “Government Telephone Directory,” accessed June 24, 2022, https://perma.cc/X5ZE-3GA7.
[8] HKSAR v Tong Ying Kit, (2021) Court of First Instance 2200, para. 134-144, 171, https://perma.cc/JJP5-6TTZ; Brian Wong, “Hong Kong’s First National Security Law Prosecution for Pro-Independence Chanting Launches at West Kowloon Court,” South China Morning Post, November 24, 2020; Kelly Ho, “Security Law: Nearly 6 Years Jail for Hongkonger Who ‘Incited Secession’ with Pro-Independence Chants and Slogans,” Hong Kong Free Press, November 11, 2021, https://perma.cc/EN3Y-764E.
[9] Kelly Ho, “Security Law: Nearly 6 Years Jail for Hongkonger Who ‘Incited Secession’ with Pro-Independence Chants and Slogans,” Hong Kong Free Press, November 11, 2021, https://perma.cc/EN3Y-764E.
[10] Department of Justice, Hong Kong SAR Government, "Speech by the Secretary for Justice, Ms Elsie Leung, in a motion debate on Article 23 of the Basic Law, in the Legislative Council on Thursday, 12 December 2002," accessed July 6, 2022, https://perma.cc/7RB7-44XX; Department of Justice, Hong Kong SAR Government, "Speech by Solicitor General," accessed July 6, 2022, https://perma.cc/FAS9-E3HP; Eric Yan-ho Lai, Thomas E. Kellogg, “NSL Verdict a Major Blow to Free Speech in Hong Kong,” Lawfare (blog), November 19, 2021, https://perma.cc/9YUZ-TCNN.
[11] Chinese name in traditional characters: 伍淑娟.
[12] Hong Kong SAR Government, “Government Telephone Directory,” accessed June 24, 2022, https://perma.cc/U868-DFY3.
[13] “‘Lichang Xinwen’ chuanmou fabu shandong kanwu an chuanjie zhi Quyu Fating chuli jiang yu 5 yue chu tixun” [The case against “Stand New” on the charge of conspiracy to publish seditious content has been transferred to the District Court, Hearing will be held in early May], Radio Free Asia, April 13, 2022, https://perma.cc/7SJM-VVFG; Jane Cheung, “Bail Rejected for Top Pair of Stand News,” The Standard, December 31, 2021, https://perma.cc/JU2T-N8J5; Jessie Pang and Edmond Ng, “Hong Kong’s Citizen News Says Closure Triggered by Stand News Collapse,” Reuters, January 3, 2022, https://perma.cc/Z7R9-55K5.
[14] Crimes Ordinance (Cap. 200), sec. 10, https://perma.cc/Q7NL-P9D9; “‘Lichang Xinwen’ chuanmou fabu shandong kanwu an chuanjie zhi Quyu Fating chuli jiang yu 5 yue chu tixun” [The case against “Stand New” on the charge of conspiracy to publish seditious content has been transferred to the District Court, Hearing will be held in early May], Radio Free Asia, April 13, 2022, https://perma.cc/A2EM-3SEA.
[15] “Trustees of 612 Humanitarian Relief Fund to Go on Trial September 19,” Standard, May 24, 2022, https://perma.cc/7CRV-EZTC. 612 Humanitarian Relief Fund, “612 Humanitarian Relief Fund” (web page), accessed June 3, 2022, https://perma.cc/4FJK-8XJY.
[16] Brian Wong and Clifford Lo, “National Security Law: Hong Kong Children’s Books Trio Remanded in Custody after Being Charged with Conspiracy to Distribute Seditious Material,” South China Morning Post, August 30, 2021.
[17] Chinese name in traditional characters: 蕭啟業.
[18] Hong Kong SAR Government, “Government Telephone Directory,” accessed June 24, 2022, https://perma.cc/BD42-UJJM.
[19] Chen Jiayi, “Liusi jihui an 20 beigao jin 9 ren wei bei shouya faguan toulu He Xiulan Yang Shen jiang renzui” [In the case of June 4 assembly, only 9 defendants out of 20 have not been detained; judge reveals that Cyd Ho and Yeung Sum will plea guilty], Hong Kong 01, June 29, 2021, https://perma.cc/T5TW-KMKM; Ge Ting, “Weiyuan feifa jijie an 12 zhenggun renzui xiazhou san panxing” [In the case of unauthorized assembly in Victoria Park, 12 crooked politicians pleaded guilty, will be sentenced next week], Wen Wei Po, September 10, 2021, https://perma.cc/Q6Y4-DHN3.
[20] Chinese name in traditional characters: 羅天瑋.
[21] Hong Kong SAR Government, “Government Telephone Directory,” accessed June 24, 2022, https://perma.cc/W7YT-SXJE.
[22] “Qian ‘Pingguo Ribao’ 4 gaoceng kong chuanmou goujie baoshi bei ju yahou 9 yue 30 ri xun [duanpian]” [Four former senior officers of “Apple Daily” accused of conspiracy to collude, bail denied, case adjourned to September 30 [short footage]], Ming Pao, July 22, 2021, https://perma.cc/6ZNB-2X3D; Shibani Mahtani, “Hong Kong Media Tycoon Jimmy Lai Arrested under National Security Law,” Washington Post, August 10, 2020, https://perma.cc/6MDX-56MG.
[23] “Li Zhiying she goujie waiguo shili wei Guo’an Fa zhuanjie Gaoyuan shen xu huanya” [Lai Chee-ying suspected of colluding with foreign forces in violation of the National Security Law; Lai remanded and case transferred to the High Court], Ming Pao, June 15, 2021, https://perma.cc/Q4AL-CH5H.
[24] Helen Davidson and Patrick Wintour, “David Perry QC Quits Prosecution of Hong Kong Activists,” Guardian, January 20, 2021, https://perma.cc/87NC-UBE5.
[25] Helen Davidson and Patrick Wintour, “David Perry QC Quits Prosecution of Hong Kong Activists,” Guardian, January 20, 2021, https://perma.cc/87NC-UBE5.
[26] Chinese name in traditional characters: 張卓勤.
[27] Hong Kong SAR Government, “Government Telephone Directory,” accessed June 24, 2022, https://perma.cc/W8LP-UF2N.
[28] Brian Wong, “National Security Law: Student Activist Who Advocated Hong Kong Independence Jailed for 43 Months,” South China Morning Post, November 23, 2021; Jessie Pang, "Former Leader of Hong Kong Pro-Independence Group Found Guilty of Secession," Reuters, November 3, 2021, https://perma.cc/2J6F-G9QM.
[29] Brian Wong, “National Security Law: Student Activist Who Advocated Hong Kong Independence Jailed for 43 Months,” South China Morning Post, November 23, 2021; Song Ren, “Guo’an Fa fawei, qian Gangdu zuzhi zhaojiren Zhong Hanlin beipan ruyu 43 ge yue” [National Security Law shows its might, former Hong Kong independence group Chung Hon-lam sentenced to 43 months in prison], Voice of America, November 23, 2021, https://perma.cc/8T6G-JV98.
[30] Chinese name in traditional characters: 陳淑文. Huang Jianlang, “[Pilu jingsi shoucha] Kongfang zhi Lin Zhuoting ti ‘You Naiqiang’ yi fanfa bianfang pi jiedu huangmiu zhiwei jin zixun fabu” [[Investigated for exposing superintendent of police] Prosecution alleges that Lam Cheuk-ting broke the law by mentioning “Yau Nai-keung”; defense says ridiculous interpretation is intended to stop dissemination of information], Citizen News, March 12, 2021, https://perma.cc/79FL-9BDM.
[31] Chinese name in traditional characters: 陳穎琛. Wallis Wang, “Monday Skirmish Set for Lai Bail Hearing,” Standard, January 29, 2021, https://perma.cc/3497-N5MU.
[32] Chinese name in traditional characters: 莊文欣. “She guli paishou liangpang tingshi fouren shandong wenzizui 9 yue kaishen pindao guanliyuan buman kongfang jianji pianduan chengtang” [Suspected of encouraging to clap, audience denies inciting to commit speech crime, trial to begin in September; channel administrator displeased with prosecution’s use of edited footage as evidence], inmediahk.net, May 31, 2022, https://perma.cc/N9FN-UNT7.
[33] Chinese name in traditional characters: 黎劍華. “Liang Guoxiong she qiang wenjian an zhongji baisu hou weichi burenzui: yiyuan wuzui, kangzheng qizui mingnian 1 yue chongshen” [In the case involving Leung Kwok-hung being suspected of grabbing documents, he maintains innocence after ultimately losing: councilor is innocent, protest charge, retrial in January next year], inmediahk.net, November 26, 2021, https://perma.cc/NV6C-8PXQ.
[34] Chinese name in traditional characters: 林宜養. “Zhongyuan caiding ‘gongtong fanzui’ yuanze bushiyong dan guli huo xiezhuzhe ke shiwei ‘chongfan’ chengchu” [Court of Final Appeals rules that “joint enterprise” principle inapplicable, but people who encourage or assist others may be deemed “an accessory” for imposing punishment], inmediahk.net, November 4, 2021, https://perma.cc/PD62-3MDE.
[35] Chinese name in traditional characters: 劉允祥. Brian Wong, “Hong Kong Opposition Activist Joshua Wong Among Group Facing Five Years in Jail over Banned June 4 Vigil after Guilty Pleas,” South China Morning Post, February 5, 2021.
[36] Chinese name in traditional characters: 李庭偉. Brian Wong, “National Security Law: Bail Denied for Hong Kong Schoolgirl and 6 Others Charged with Subversion under Beijing-Imposed Legislation,” South China Morning Post, September 29, 2021.
[37] Chinese name in traditional characters: 吳加悅. Jasmine Siu, “Hong Kong Protests: Opposition Activists Plead Guilty to Incitement over Unauthorised March, Which They Claim More Than 350,000 People Attended,” South China Morning Post, August 19, 2021.
[38] Chinese name in traditional characters: 徐倩姿. “Trustees of 612 Humanitarian Relief Fund to Go on Trial September 19,” Standard, May 24, 2022, https://perma.cc/7CRV-EZTC.
[39] Hong Kong Human Rights and Democracy Act, Public Law 116-76, sec. 7(a), (b), (c).
[40] UN Human Rights Council, Working Group on Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary Detention at its 78th session, (19–27 April 2017), A/HRC/WGAD/2017/5, July 28, 2017, paras. 3(b), (e), https://perma.cc/S523-RGXV.
[41] Hong Kong Autonomy Act, Public Law 116-149, secs. 3(4), 5(a), 6(b).
[42] U.S. Department of Treasury, “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” August 7, 2020, https://perma.cc/25FU-F4RC.
[43] U.S. Department of Treasury, “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” August 7, 2020, https://perma.cc/25FU-F4RC.
[44] Chris Lau, "Xi Jinping’s Remarks on Preserving Common Law System and Independent Judiciary, but Some Lawyers Express Doubts," South China Morning Post, July 1, 2022. See also “Guowuyuan renming Xianggang Tebie Xingzhengqu diliu jie zhengfu zhuyao guanyuan” [State Council appoints principal officials for the sixth term of the Hong Kong Special Administration Government], Xinhua, June 19, 2022, https://perma.cc/Z5K2-ZFV6; Hong Kong SAR Government, “Principal Officials of Sixth-term HKSAR Government appointed (with photos),” June 19, 2022, https://perma.cc/T9VX-3PBT.
[45] Tang Huiyun, “Beijing renming xin yijie Xianggang Tequ zhuyao guanyuan 4 ren wuguan chushen shou Meiguo zhicai huo yingxiang guoji guanxi” [Beijing appoints principal officials for a new term of the Hong Kong SAR, 4 of them have law enforcement background and have been sanctioned by the US; it may affect international relationship], Voice of America, June 21, 2022, https://perma.cc/V38N-TYS8.
[46] “Factbox: Hong Kong’s New Cabinet to Focus on National Security,” Reuters, June 20, 2022, https://perma.cc/QXK6-MGB7.
[47] Department of Justice, Hong Kong SAR Government, “Prosecution Code,” accessed July 5, 2022, secs. 5.1, 5.2, https://perma.cc/Y94H-NC25. The cited language is from Section 15(1) of the Criminal Procedure Ordinance and applies to the Secretary of Justice. The Prosecution Code cites this provision and expands its application to the Director of Public Prosecutions and to prosecutors acting on behalf of the Secretary for Justice.
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