Hong Kong has convicted its first suspect under a national security law which was mandated by Beijing, with three High Court judges ruling on Tuesday that Tong Ying-kit was guilty of terrorism and inciting secession.
Tong, 24, committed the offences last year by showing a slogan, “Liberate Hong Kong, Revolution of Our Times”, on a flag during a motorcycle ride and colliding with police. He acted knowing full well that the slogan carried a secessionist meaning, the judges said.
“When the defendant displayed the slogan in the manner he did, he intended to communicate the secessionist meaning of the slogan to others, and he intended to incite others to commit secession by separating [Hong Kong] from the People’s Republic of China,” the judges wrote in their 62-page judgment.
As for the charge of terrorism, the judges said Tong’s manner of driving and eventual collision with officers on July 1, 2020, jeopardised public safety. His actions were a “deliberate challenge” to a symbol of Hong Kong’s law and order, involved serious violence and caused grave harm to society, the judges continued.
The court will hear mitigation arguments on Thursday morning before deciding Tong’s sentence. The penalty will depend on how the court categorises his participation in the offences; for example, a “principal offender” for secession could face anything between a 10-year jail term and life imprisonment.
Defence lawyers said Tong had not yet decided whether to file an appeal.
The incitement conviction mostly hinges on Tong’s driving manner and route.
Tong’s case was heard without a jury, so the verdict fell on judges Anthea Pang, Esther Toh and Wilson Chan, who were among the city leader’s picks to oversee national security cases.
On the incitement charge, the judges posed two questions: was the “Liberate Hong Kong” slogan capable of having the meaning of separating Hong Kong from China? Did Tong have a specific intention to incite secession on the day he drove around with the flag?
They answered “yes” to both.
The three judges did not give their take on the slogan’s exact meaning, sidestepping an issue that had consumed much of the 15-day trial. They said prosecutors were not required to prove the slogan must have a secessionist meaning; it was enough to show the slogan could have that meaning as one possibility among many.
Based on that reasoning, the bench felt that, despite major differences in opinion, all three university academics summoned to assist the court’s understanding of the slogan agreed it could have a secessionist meaning. Once this point was established, the judges said they did not need to resolve the experts’ differing views.
“There is in fact no dispute amongst the three experts that at the material time on July 1, 2020, as a whole, the Chinese slogan was at the very least capable of having the meaning… of separating Hong Kong from China.”
To assess Tong’s intentions, the judges made inferences from his behaviour as he had declined to take the stand during the trial.
The judges said Tong was determined to attract as much public attention as possible, which was reflected in his choice of date — July 1 being the day after the national security law was enacted — and location, as well as his motorcycle’s “convoluted route” across Hong Kong Island, ending in the neighbourhood of Wan Chai.
To find out how Tong understood the slogan, the court relied on a chat he had with a WhatsApp contact in the hours before the crash. The discussion involved looking for a “safe spot” away from police checkpoints and roadblocks, the judges said.
“If the defendant only had an innocent understanding of the meaning of the slogan and if he did not understand it to convey the meaning of Hong Kong independence, he would not be mentioning the location of a ‘safe spot’,” they wrote.
Challenging the police will instil fear in the Hong Kong public, the judges warn.
To address the terrorism charge, the judges formulated three questions: did Tong’s actions amount to “serious violence against persons” or “other dangerous activities”? Did he cause grave harm to society? Did he mean to intimidate the public or coerce the government in pursuit of a political agenda?
They answered “yes” to all three.
The judges noted that Tong did not stop at police checkpoints and instead jeopardised the safety of other road users. No evidence showed that Tong crashed his motorcycle because he was hit or distracted by a police shield, the judges added, rejecting an argument from the defence.
In answering the second question, they made a more abstract point: Tong caused grave harm to society because he challenged a symbol of Hong Kong’s law and order — the police.
“A blatant and serious challenge mounted against the police force which is charged with the responsibility of maintaining public safety and security… will certainly instil a sense of fear amongst the law-abiding members of the public,” the judges wrote.
The public would be apprehensive about the breakdown of a safe and peaceful society into lawlessness, they said. “In that event, grave harm would certainly be caused to society.”
Finally, the judges ruled that Tong was advocating a political agenda by intimidating the public, “given the gross nature of what he did and the inevitable adverse impact it would have on law-abiding members of the public”.
They left open the question of whether Tong’s acts amounted to coercion of the local or central government, saying only that they had “some reservations” about whether the prosecutors had proven such coercion.
Given that the judges found Tong guilty of terrorism, they did not consider the alternative charge of dangerous driving causing grievous bodily harm.
The ripple effects from Tong’s conviction will be felt in other trials very soon.
The court’s interpretation of the slogan on Tuesday is expected to have major ramifications in other protest-related trials in Hong Kong.
Ahead of the High Court verdict, its influence was felt as early as Monday when the District Court adjourned the sedition trial of democracy activist “Fast Beat” Tam Tak-chi. The activist allegedly used the same slogan, one of the most popular in the city’s 2019 pro-democracy movement, though the charge of sedition he faced was under colonial-era laws instead of national security legislation. The District Court judge said he would wait and see if the ruling for Tong affected Tam’s trial.
Tong’s case marks multiple departures from Hong Kong’s common law tradition: unlike in most criminal trials at the Court of First Instance, Tong was not tried by a jury of his peers. He attempted several times to challenge the decision, which was made by the Secretary for Justice, but to no avail.
Tong was also detained for nearly a year before trial as a result of new bail rules instituted under the national security law.
By Holmes Chan
Day 1: Hong Kong’s first national security suspect Tong Ying-kit goes on trial
Day 2: Police fired pepper balls at Tong Ying-kit’s speeding motorbike, court hears
Day 3: Role of police arm shield in Tong Ying-kit crash under question in court
Day 4: ‘I had a feeling’ Tong Ying-kit meant to flee after crashing, says injured policeman
Day 5: Tong Ying-kit’s slogan is about ‘taking back Hong Kong from enemy’, professor tells court
Day 6: Slogan creator Edward Leung wanted to ‘build a nation for Hongkongers’, court told
Day 7: Trial debates Tong Ying-kit’s perception of ‘Liberate Hong Kong’ slogan
Day 8: Lawyers caught unawares as slogan evidence can’t be found in middle of hearing
Day 9: Tong Ying-kit purposely avoided hitting police with motorbike: defence
Day 10: ‘Liberate Hong Kong’ slogan was about uniting freedom-loving people, political scientist testifies
Day 11: Hong Kong protesters flaunted colonial flag in 2010s. What does it mean today? court asks
Day 12: National security judges sceptical of using group discussions to interpret slogan
Day 13: Prosecutors’ view on language too rigid, media scholar says at Tong Ying-kit trial
Day 14: Tong Ying-kit looked after people injured at 2019 protests, ex-boss testifies
Day 15: Lawyers debate how to prove incitement as Hong Kong’s first national security trial ends