Hong Kong’s first national security suspect Tong Ying-kit goes on trial

Hong Kong’s first-ever criminal trial under the national security law began on Wednesday as prosecutors laid out secession and terrorism charges against Tong Ying-kit, who allegedly drove his motorcycle into police officers almost a year ago.

The 15-day trial of Tong, 24, will be a key test of how Hong Kong’s common law courts apply and interpret China’s expansive notion of national security, which was written into the city’s law books at Beijing’s command last June. If convicted, Tong could face life in prison.

Appearing before the Court of First Instance, Tong pleaded not guilty to all three charges against him. Aside from two national security offences, prosecutors earlier this month added a backup charge of dangerous driving causing grievous bodily harm.

The three judges of the trial are Esther Toh, Anthea Pang and Wilson Chan, who are among local jurists hand-picked by Hong Kong’s leader to oversee national security trials. The justice minister has chosen to prosecute Tong without a jury, an unusual decision upheld by the appeal court the day before trial began.

Here’s what happened.

Tong allegedly drove across Hong Kong Island while flying a protest flag.

Opening the government’s case on Wednesday, prosecutor Anthony Chau said that, on July 1, 2020, Tong rode his motorbike across a large stretch of Hong Kong Island with a black flag attached to his vehicle and bearing the words “Liberate Hong Kong, Revolution of Our Times” — one of the best-known protest slogans from the 2019 democracy movement.

He emerged from the Eastern Harbour Crossing and drove to Central before doubling back to Wan Chai. Near the end of his route, he went through three police checkpoints, ignoring officers’ orders to stop, before finally crashing at a checkpoint at the junction of Jaffe and O’Brien roads, Chau said.

More than once, Tong elicited cheers from the crowd of onlookers as he sped past the checkpoints. “[Tong] intended the words on the flag to be communicated to persons within the view of his motorcycle as he travelled along the route,” the prosecutor said, adding that the defendant wanted to make headlines.

Chau showed the court a 13-minute compilation of video footage gathered from closed-circuit cameras, the news and police recordings. The clips partially reconstructed Tong’s course on July 1, ending with the moment of his crash and subsequent arrest.

Clive Grossman SC, representing the defence, challenged the relevance of some of the clips, saying that one snippet seemed to show a motorcyclist simply waiting at a traffic light. He also complained that prosecutors submitted the clips late. “The defence only saw this video for the first time today,” Grossman said.

Tong Ying-kit rode his motorbike on July 1, 2020. (Captured from footage of Cable News)

Prosecutors say “Liberate Hong Kong, Revolution of Our Times“ must be a subversive slogan.

One of Chau’s contentions was that Tong was inciting secession because his actions on July 1 were meant to “communicate the meaning of the words of the flag.” The precise meaning of those words will be hotly contested between the two sides, and all eyes are on the judges to see how they will interpret the sensitive slogan.

Chau cited the prosecution’s expert witness Lau Chi-pang, a history professor and the associate vice-president of Lingnan University, saying that “Liberate Hong Kong, Revolution of Our Times” must surely connote independence, separatism, subversion of state power or alteration of the city’s legal status.

“In the context of Hong Kong’s political language, these words were raised necessarily for the objective of separating Hong Kong from China,” Chau said.

The latter part of the slogan carried the meaning of “causing a change to the regime or social system,” therefore it must mean a rejection of Beijing’s governance, Chau said. As for “liberating” Hong Kong, it meant recovering something that had fallen into enemy hands, which implied the People’s Republic of China was the enemy, he told the court.

In the days ahead, the defence is expected to call two expert witnesses of its own: Eliza Lee, a professor at the University of Hong Kong’s Department of Politics and Public Administration, and Francis Lee, a journalism professor from the Chinese University of Hong Kong.

Driving a motorbike into police officers was a terrorist act, prosecutors say.

On Tong’s terrorism charge, Chau said that the 24-year-old used his vehicle to pursue a political agenda that involved either coercing the government or intimidating the public.

“[Tong] drove his motorcycle in repeat disregard of police checklines and ultimately caused the collision,” Chau said. Tong intended to inflict grave harm on society and was responsible for “serious bodily injury” to three officers, he added.

One constable reported feeling pain in his left wrist, left shoulder and lower back. A detective police constable dislocated his right thumb. Each man was given sick leave of around a month and a half. The third man claimed discomfort in his chest and thumb and was granted five days off.

Tong’s actions took place amid wider protests that day on Hong Kong Island.

The prosecution argued Tong must have been aware of the ongoing protests on Hong Kong Island on July 1, 2020, and that his actions should be understood in that context.

Police superintendent Tam Wan-yee testified that on the day, she led a platoon to respond to protests on Hong Kong Island. It was the day following the passage of the national security law, and intelligence suggested protests would break out in Wan Chai, she said.

Tam’s platoon saw that a section of Hennessy Road in Wan Chai was partially blocked by “rubbish bins, bricks and fire”, and she ordered her officers to form a checkline to prevent protesters from walking westwards. She said the July 1 protests were unauthorised because the government had earlier refused permission.

Tam will continue her testimony on Thursday morning.

The High Court on June 23, 2021

Tong has so far spent nearly a year in detention.

Since Tong was taken into custody on July 1, 2020, all of his bail applications have been denied. The High Court ruled last August that he was a “flight risk” and had a “risk of re-offending”. The reasoning behind this conclusion was redacted.

The usual practice in Hong Kong is to grant bail to criminal suspects unless prosecutors can prove a need to lock them up until trial. The national security law reverses the burden of proof: defendants have to show that they will not break the law if released on bail.

Article 42 of the national security law states that “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”.

The High Court last August dismissed Tong’s application for a writ of habeas corpus, which alleged that the government was detaining him unlawfully.

Hopes for a jury trial were dashed the day before.

On Tuesday, the Court of Appeal upheld the decision by Secretary for Justice Teresa Cheng to try the case without a jury. Government lawyers earlier argued that a jury trial would pose a threat to the personal safety of jurors and their family members.

The three appeal judges were unanimous in their ruling, saying that a jury was not an “indispensable element” for a fair trial. “Granted jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed that it is the only means of achieving fairness in the criminal process,” they wrote.

The appeal judges also said Cheng did not have to justify her decision or disclose specifics of the risks facing jurors and their family members, because it might involve classified information such as state secrets and intelligence reports.

Prosecutors in Hong Kong get to choose if they want a jury trial, and defendants can challenge the decision only under a limited set of criteria: dishonesty, bad faith or other exceptional circumstances. The defence did not make those arguments, the judges noted.

Another factor working against Tong was time. Overturning the prosecutors’ decision would result in “delaying if not derailing the criminal process”, of which the judges disapproved, the written ruling showed.

Tong’s legal team first learned in February that the trial would be heard at the High Court without a jury, a landmark departure from Hong Kong’s common law tradition. The Court of First Instance rejected his judicial review of Cheng’s decision last month, and upon appeal, the matter was settled definitively on Tuesday, the day before trial commenced.

Representatives from the “Five Eyes” nations attended the opening of the trial.

The start of the trial was delayed because of a photo-taking incident.

Judge Toh said at the outset on Wednesday that someone had taken photos in the courtroom and the police had been notified. She reminded spectators in the public gallery that photography and sketching were prohibited in the court building.

Representatives from the “Five Eyes” nations, comprising Australia, Canada, New Zealand, the United Kingdom and the United States, attended the opening of the trial. Around a dozen police officers stood guard at each of the High Court’s main entrances.

By Holmes Chan