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    Lawyers debate how to prove incitement as Hong Kong’s first national security trial ends

    Here’s what you need to know about the last day of the trial:

    • A judge explained the criteria behind the offence of inciting secession under the city’s national security law.
    • In their closing arguments, prosecutors said that defendant Tong Ying-kit blatantly defied law and order and utterly disregarded human lives.
    • Tong’s lawyers said what happened was nowhere near the public’s understanding of terrorism.
    • The verdict will be delivered on the afternoon of July 27, 2021.

    Hong Kong’s first national security trial drew to a close on Tuesday with questions hanging over legal requirements for proving incitement to secession, one of three charges levelled against defendant Tong Ying-kit after he drove a motorcycle bearing a protest flag into police last year.

    The three-judge panel announced that it would deliver its verdict at 3pm on July 27. Judges Anthea Pang, Esther Toh and Wilson Chan are among jurists designated by Hong Kong’s leader to oversee national security cases. Contrary to convention at the High Court, the trial was conducted without a jury.

    In one of the city’s most closely watched criminal cases, prosecutors argued in their closing speech that Tong, 24, conducted a “parade” with his vehicle while flying a flag with the slogan “Liberate Hong Kong, Revolution of Our Times” on July 1, 2020, while ignoring the police’s repeated orders to stop.

    “We submit that the defendant ran through each checkline targeting police officers, blatantly acting in defiance of law and order, with utter disregard for human lives,” said Anthony Chau, acting deputy director of public prosecutions. 

    The defence replied that Tong had deliberately avoided hitting the police, and had eventually crashed only because he was hit or distracted by a shield thrown by one of the officers. Tong was the opposite of a terrorist, as he was carrying first-aid supplies on the day of the collision to treat injured protesters, his lawyers said.

    Prosecutors say they don’t need to prove that anyone was incited.

    The court on Tuesday tried to sort out the legal framework for the charge of inciting secession. Citing case law, lead prosecutor Chau said one of the key tests was whether incitement would be a “natural and reasonable effect” of the slogan. He added that the word “incite” could mean to rouse, stimulate, urge and other similar interpretations.

    “It is immaterial that the incitement had no effect on other persons,” Chau said, making a case for Tong to be convicted even if no one was incited by his conduct. 

    Chau argued that Tong intended to communicate the words on the flag to people who saw his motorcycle, and he deliberately drove in a way to get as many witnesses as possible. He said Tong travelled across a large part of Hong Kong Island that day and intensified his act of incitement when he sped past multiple police checkpoints.

    “He must have intended that other persons shall or will commit the offence of secession,” Chau continued. “There were people shouting, cheering and clapping their hands. This showed the communication was received by [onlookers].”

    Defence counsel Clive Grossman SC disputed that version of events, saying Tong had chosen a vague slogan instead of an explicit call for Hong Kong independence.

    “There were a lot of disgruntled people who were demonstrating against the government, the police,” Grossman told the court. “They see someone who is obviously ‘with them’ riding on a motorcycle… They think, ‘he’s on our side’. But ‘our side’ could be a hundred different things.”

    The case law of incitement was almost always concerned with one individual inciting another, instead of one person inciting a whole crowd, the barrister added.

    “Worldwide, people have been demonstrating and holding up signs. But there is nothing in Archbold we can find that resembles this case… despite the millions of banners raised in the world and in Hong Kong,” he said, referring to a practitioner’s reference text for criminal law.

    A judge sums up the incitement charge in two key questions.

    Throughout its case, the defence team has repeatedly stressed that the “Liberate Hong Kong” slogan was ambiguous and open to interpretation. 

    “Let me give an example: ‘Go out and fight for your rights’,” Grossman said in the defence closing speech. “This can mean standing for election, or beating up people who disagree with you. A simple slogan can mean different things to different people.”

    The defence rejected a narrower interpretation by the prosecution’s expert witness, history professor Lau Chi-pang, saying his approach was based on an “untenable, rigid, mechanical” view of history that did not take into account the importance of rhetoric.

    Lau’s reading of the slogan as a literal call for separatism was only one meaning among many, Grossman said. “If there might be multiple interpretations of the slogan, that is enough; [Tong] should be acquitted.

    “If the court agrees that it is one of many meanings, then it must be the end of the charge, because it cannot be proved beyond reasonable doubt what the defendant meant was what Lau had in mind,” he added.

    This position was met with some resistance from the bench. Judge Pang said there were two separate questions: whether the natural and reasonable effect of the slogan was capable of inciting others to secession, and whether Tong had the requisite criminal intent for incitement.

    On the first question, Grossman answered that the words were too vague to be capable of incitement. The two defence experts, professors Eliza Lee and Francis Lee, had earlier said Lau’s interpretation was possible, but they would not personally read the slogan that way. 

    The prosecution defended the historian’s approach, saying that it “accords with logic and the plain and ordinary meaning of the slogan.”

    Everyone understands terrorism and Tong’s case was not it, the defence says.

    As for the terrorism charge against Tong, the prosecution relied on two clauses in Hong Kong’s national security law: “serious violence against a person or persons” and “dangerous activities which seriously jeopardise public health, safety or security”. As an alternative offence, prosecutors also filed a charge of dangerous driving causing grievous bodily harm.

    Tong tried to further a political agenda by coercing the central government or the Hong Kong government, or by intimidating the public, Chau told the court.

    “The serious violence can be demonstrated by the fact that three officers were injured,” Chau said, repeating his earlier assertion that Tong used the motorbike as a lethal weapon. 

    Grossman countered that the label of “serious injury” was a grave overstatement, as one of the officers was hospitalised for only a few days, while the other two were discharged on the same day.

    “What happened in this case is nowhere near what we know as terrorism,” he said, adding that the prosecution’s version of the offence was “terrorism with a very small ‘T’.”

    Tong was seen obeying traffic lights while driving, and was carrying first-aid supplies in case he needed to treat injured protesters, Grossman added. When challenged by Judge Toh that there was no evidence to support the point, Grossman said it was a clear inference. “What other reason can there be?” he asked.

    The lawyer also argued that Tong had the choice of hitting police officers with his motorcycle but deliberately avoided it, which was contrary to the idea that he went out to commit an act of terrorism.

    Tong collided with the police only after an officer threw a shield at him, which either hit or distracted him, Grossman said, adding that the motorcyclist was already braking in the moments before crashing. Earlier in the trial, none of the testifying officers recalled throwing their shield at Tong or seeing anyone else do so.

    The court examines how much weight to give to each of the three experts.

    On Tuesday, lawyers took potshots at the other side’s expert witnesses. The prosecution said that a focus group study conducted by university academic Francis Lee on the slogan was “biased, incomplete and tainted with leading questions”.

    Grossman retorted that Francis Lee was a well-known scholar of communication and journalism. He defended the two professors on his side as “experts in the true sense” whom the court should not dismiss.

    The defence counsel in turn criticised the prosecution’s history expert Lau as having no training in understanding slogans and protest movements. It was also “rather suspicious” that Lau was spotted in the vicinity of a “Reclaim Yuen Long” protest on July 27, 2019, and yet later claimed he had no idea what the event was about, Grossman added.

    At the end of the trial, the panel of judges reviewed Tong’s criminal history and said they would make a “good character” direction regarding the first two charges. They would not give the direction for the dangerous driving charge as Tong had been fined for traffic offences before.

    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

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