In this article, Sarthak Gupta, Legal Researcher and Editor at CGFoE, outlines how, within the past five years, the National Security Law in Hong Kong helped transform – rapidly and extensively – the territory’s legal system and framework on freedom of expression. 

On June 30, 2025, Hong Kong marked five years since the enactment of the National Security Law, 2020, a legislative milestone that precipitated a transformation of the territory’s constitutional order and legal framework governing the freedom of expression. Within the past five years, Hong Kong’s legal system has undergone substantive changes that have redefined the scope and application of various forms of freedom of expression protections, as evidenced by criminal prosecutions for symbolic political expression, such as wearing clothes with political slogans, and judicial injunctions prohibiting the public performance of songs. This transformation represents a paradigmatic shift in Hong Kong’s constitutional and human rights framework, fundamentally altering the balance between individual rights and the state’s ostensible interest in ‘national security’ considerations that had previously characterized the territory’s legal order under the “One Country, Two Systems” arrangement.

This article examines Hong Kong’s constitutional transformation: from a semi-autonomous territory with fundamental rights protected under the Basic Law and international human rights standards, including the International Covenant on Civil and Political Rights (ICCPR), to a fundamentally altered legal landscape following China’s imposition of the National Security Law (NSL). The legislation was enacted in response to the 2019 pro-democracy movement, which protested the proposed extradition laws. Establishing four categories of prohibited conduct, “secession, subversion, terrorism, and foreign collusion,” with life imprisonment penalties, the NSL fundamentally criminalized previously protected political discourse, symbolic expression, and press freedom. Through prosecutions, including HKSAR v. Tong Ying-kit (criminalizing political slogans), judicial restrictions on the “Glory to Hong Kong” song, HKSAR v. Chu Kai Pong (targeting symbolic clothing), and the ongoing Jimmy Lai case (prosecuting journalistic activities), the systematic enforcement demonstrates how Hong Kong’s constitutional framework has been recalibrated to transform core democratic expressions into criminal conduct, effectively dismantling the territory’s distinctive legal protections that had distinguished it from mainland China’s system.

Hong Kong: One Country, Two Systems

On July 1, 1997, the United Kingdom handed over the sovereignty of Hong Kong to China as outlined in the 1984 Sino-United Kingdom Joint Declaration, a United Nations-registered treaty. China, in response, guaranteed a “high degree of autonomy” for the Hong Kong Special Administrative Region (HKSAR), except in foreign and defense matters. Although China hadn’t ratified the ICCPR, the Joint Declaration stipulated that ICCPR provisions would apply to Hong Kong. The ICCPR, which Hong Kong is bound to uphold, recognizes the need to balance rights and prevent the abuse of rights in Article 5. This principle is further reinforced by the Vienna Declaration, which affirms the indivisibility and interdependence of human rights while acknowledging the relevance of national particularities and historical contexts. 

The Basic Law of the HKSAR (Basic Law), also known as the “mini-Constitution,” was passed by China’s National People’s Congress in 1990. It established the region’s governance structure. Relevant to China’s imposition of National Security Legislation, Article 23 of the Basic Law mandated Hong Kong to enact laws prohibiting acts like “treason, secession, sedition, and subversion” against the Government. At the same time, Article 39 ensured the application of international human rights law in Hong Kong’s legal framework. After 1990, the HKSAR continued the tradition of refraining from pursuing charges related to sedition, even though such offenses remained part of the legal framework under Sections 9 and 10 of the Criminal Ordinance. For years, Hong Kong maintained a civic space marked by an independent judiciary, an active civil society, and a free press. Despite many failed attempts, no law concerning sedition or national security was ever passed under Article 23. However, growing political tensions, especially following the 2014 Umbrella Movement, which demanded universal suffrage and resisted Beijing’s pre-screening of candidates, deepened anxieties over the erosion of promised freedoms. These concerns escalated sharply in 2019, when mass protests erupted in response to a proposed extradition bill, leading to the introduction of the new national security law in June 2020. 

The 2019 Protest 

In February 2019, the HKSAR, under the Chief Executive Mrs. Carrie Lam, introduced the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, 2019 (hereinafter as “the Bill”). The Bill intended to remove ambiguities in the Fugitive Offenders Ordinance (Cap. 503) (also known as “extradition law”), allowing special surrender arrangements with places not already covered, and to amend the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525), permitting legal cooperation with jurisdictions outside Hong Kong, including mainland China. According to Chief Executive Carrie Lam, the Bill was a response to a murder case involving 19-year-old Hong Kong resident Chan Tong-kai, who killed his pregnant girlfriend Poon Hiu-wing in Taiwan in February 2018, then returned to Hong Kong. The suspect could not be brought to face justice due to the absence of an extradition arrangement between Hong Kong and Taiwan. The Hong Kong government contended that this legal loophole needed to be closed to ensure that criminals could not escape justice by exploiting jurisdictional gaps. The Security Bureau invited the public to express views on the proposals from February 12 to March 4, 2019. About 4,500 written submissions were received, including about 3,000 in support of and about 1,400 in opposition to the proposals. Finally, the Bill was gazetted on March 29, 2019. 

The Bill was criticized by policymakers, businessmen, human rights activists, and human rights organizations, calling it a threat to Hong Kong’s judicial independence and the “One Country, Two Systems” framework. Pro-democracy advocates feared that the region’s jurisdiction would no longer be separated from China’s mainland legal system. They expressed concerns that the amendment would effectively allow China to request the extradition of political dissidents, journalists, and activists to face trial in mainland China’s judicial system, which lacks the same legal protections as Hong Kong’s common law system. These concerns soon materialized into widespread public opposition that defined Hong Kong’s political landscape for the remainder of 2019.

Beginning in March 2019, Hong Kong witnessed its largest protests ever, with people demonstrating against the China-endorsed legislative proposal. The protests grew dramatically from around 10,000 participants on March 31 to hundreds of thousands on June 9, with organizers claiming that over a million people took part in the latter demonstration, resulting in a cumulative participation of more than 14,508,801. The year-long movement comprised hundreds of protest events (approximately 996 protests), with millions of Hong Kong residents participating in demonstrations demanding the complete withdrawal of the Bill. During the numerous protests, a song titled “Glory to Hong Kong,” written under pseudonym “Thomas dgx yhl,” emerged as the unofficial anthem of the 2019 pro-democracy protests, along with slogans “Do You Hear the People Sing?” and “Liberate Hong Kong: Revolution of our times,” uniting thousands with its powerful words and emotional resonance. The protests escalated significantly throughout the summer of 2019, as demonstrators feared that the Bill would undermine Hong Kong’s autonomy. On June 12, 2019, protesters surrounded the Legislative Council building, preventing legislators from entering it and forcing them to postpone the Bill’s second reading. The situation deteriorated when the police used tear gas, pepper spray, and rubber bullets against protesters, with 150 rounds of tear gas fired. The police declared the situation a “riot” under colonial-era public order laws. The violence escalated throughout the summer. On July 1, 2019, protesters stormed the Legislative Council building and vandalized it with graffiti stating, “It was you who taught me peaceful marches do not work.”  

A pivotal moment occurred on July 21, 2019. That day, protesters defaced the Chinese national emblem at the Liaison Office; simultaneously, in Yuen Long, gangs of white-clad attackers assaulted protesters and ordinary citizens at the MTR station. The police response to this attack was delayed by 39 minutes, leading to widespread accusations of police collusion with white-clad attackers and turning many passive Hong Kong residents against the police force. The situation continued to deteriorate as protests formed rapidly in multiple locations, with the police resorting to violence earlier and protesters setting up roadblocks to fight for their positions. (See a detailed analysis of the 2019 protest here.) As arrests mounted, the police and prosecutors began using public order laws to charge protesters with offenses including “unlawful assembly,” “rioting,” and “possession of weapons,” often stretching the facts with charges for items like laser pens and plastic ties. The chaos reached a peak on August 31, 2019, when the police stormed Prince Edward MTR Station and attacked unarmed passengers randomly; in November that year, during the “Siege of PolyU,”  the police trapped hundreds of protesters, medical workers, journalists, and others inside Hong Kong Polytechnic University, refusing to let them out without being arrested and causing days of violent clashes as protesters attempted to break the siege.

After thirteen weeks of sustained protests and mounting public pressure, on September 4, 2019, Chief Executive Carrie Lam officially promised to withdraw the Bill upon the resumption of the legislative session from its summer recess. On October 23, 2019, Secretary for Security John Lee announced the government’s formal withdrawal of the Bill, which was officially pulled back on the same day that Chan Tong-kai was released from prison. Despite the Bill’s withdrawal, the protests continued and evolved into a broader pro-democracy movement demanding greater political freedoms and accountability from the Hong Kong government. The protests only ended with the arrival of COVID-19 in early 2020, as fear of the virus and general fatigue led to quieter demonstrations, while the police effectively banned gatherings of any size and forced an end to the protest movement that had fundamentally altered Hong Kong’s political trajectory. 

NSL’s Homecoming and Aftermath

The immediate aftermath of the 2019 Hong Kong protests brought dramatic changes to the territory’s political and social landscape. The November 2019 District Council elections became a peaceful yet powerful expression of support for the pro-democracy movement, with a record 71% voter turnout. Pro-democracy candidates won 392 out of 452 seats, signaling strong public rejection of Beijing’s stance and affirming the demand for autonomy and the rule of law. However, the victory proved short-lived: the Chinese Government interpreted the electoral results as further evidence of the territory’s political instability and the need for decisive intervention. 

In response to the protests, the Chinese Government initiated legislative action at the national level. The Chinese central authorities determined that national-level intervention had become necessary and adopted a two-step approach under the Constitution and Basic Law. On May 28, 2020, the National People’s Congress adopted the “Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security,” bypassing the territory’s own Legislative Council entirely. The move marked a fundamental departure from the “One Country, Two Systems” framework, as China exercised direct legislative authority over Hong Kong for the first time since the handover in 1997. The legislation would supersede local Hong Kong laws, including the Hong Kong Bill of Rights Ordinance of 1991 (Bill of Rights) and guarantees under the Basic Law and ICCPR. The Standing Committee of the National People’s Congress (NPCSC) began drafting the legislation after receiving the National People’s Congress’s approval. The NPCSC proceeded with consultations involving the HKSAR and different sectors of Hong Kong society, though the specific provisions remained largely confidential during the drafting process. The law underwent rapid deliberation and approval processes that concluded within weeks rather than the typical months or years required for major legislation.

The National Security Law (NSL, officially known as “The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region”) received final approval from the NPCSC on June 30, 2020. On the same day, the NPCSC adopted a decision to include the NSL in Annex III of the Basic Law, enabling its promulgation and implementation by the HKSAR locally. The NSL came into force immediately upon its enactment, with the full text published simultaneously in Hong Kong’s Government Gazette. The legislation established four broad categories of prohibited conduct: secession, subversion, terrorist activities, and collusion with foreign or external forces. Each category carried maximum penalties of life imprisonment, representing the most severe criminal sanctions available under Hong Kong law. The NSL introduced significant structural changes to Hong Kong’s legal and political systems. It established the Committee for Safeguarding National Security, chaired by the Chief Executive and supervised by Beijing’s newly created Office for Safeguarding National Security. The legislation also granted the central government the authority to exercise jurisdiction over certain national security cases and permitted the appointment of designated judges to hear such matters. The convergence of sedition laws with the NSL has engendered a legal landscape that threatens to undermine internationally recognized human rights principles. 

The Safeguarding National Security (Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region) Regulation opened on July 8, 2020, establishing China’s direct security presence in Hong Kong for the first time since 1997. The Hong Kong government simultaneously launched public education campaigns to explain the new legal requirements and established reporting mechanisms for suspected violations. These measures signalled the beginning of a comprehensive transformation of Hong Kong’s political and legal landscape under the national security framework,  which was later expanded through additional security measures. In March 2024, the Hong Kong Legislative Council unanimously passed the Safeguarding National Security Ordinance (SNSO), fulfilling the territory’s constitutional obligation under Article 23 of the Basic Law. This domestic legislation complemented the national law by addressing perceived gaps in coverage and establishing additional offenses related to state secrets and foreign interference. The Ordinance targeted five specific types of offenses: treason, insurrection, and acts of sedition, offenses relating to state secrets and espionage, sabotage, and external interference. In May 2025, authorities enacted two pieces of subsidiary legislation under the SNSO, designating six premises of the Office for Safeguarding National Security as prohibited places and establishing detailed implementation procedures.

The law’s immediate impact became apparent through its early enforcement actions. Within hours of its enactment, police arrested the first individuals under the new legislation, and authorities began removing protest slogans and materials deemed potentially subversive. One day after the NSL was passed, on July 1, 2020, ten individuals, who were part of the protest that marked the 23rd anniversary of Hong Kong’s reversion to Chinese sovereignty, were arrested under the new law. In July 2020 alone, a total of 15 individuals were arrested, with 61 individuals being arrested in January 2021. By March 2025, authorities had charged 186 persons and secured 161 convictions under the NSL. As of this writing, 316 persons have been arrested under the NSL between 2020 and 2024, with arrests peaking at 145 in 2021. Secretary for Security Chris Tang Ping-keung later reported that the total number of arrests had reached 326 people by June 2025, encompassing violations of both the NSL and the Safeguarding National Security Ordinance, 2024.

The subsequent trials and convictions under the NSL encompassed a broad range of activities and expressions. Hong Kong courts have convicted individuals for various forms of conduct, including participation in protest activities, public singing, wearing clothes with political messages, and displaying slogans such as “Liberate Hong Kong, Revolution of our times.” These prosecutions extended to activities that defendants and critics argued constituted legitimate expressions of political opinion and fundamental rights. The scope of prosecuted conduct raised questions about the boundaries between national security enforcement and the traditional understanding of freedom of expression that had previously characterized Hong Kong’s legal landscape. The following section will discuss specific trials, both completed and ongoing, to highlight the practical application and judicial interpretation of the national security legislation in Hong Kong’s courts.

The First Trial of NSL: Revolution of Free Speech

The case of Tong Ying Kit is very crucial to understanding the erosion of freedom of expression under the NSL in Hong Kong and its broader implications for political speech. Tong’s verdict marked the first conviction under the NSL and thus set a precedent for how courts interpret (and will continue to interpret) and apply the NSL in political and free expression cases. (See Lai and Kellogg Case Comment here.)

Tong was arrested on July 1, 2020, and was charged under Article 21 (subversion) and 24 (terrorist activities) for driving his motorcycle while carrying a banner bearing the protest slogan “Liberate Hong Kong, Revolution of Our Times [光復香港，時代革命].” The Hong Kong Court of First Instance convicted Tong Ying-kit on all counts, “incitement to secession, terrorist activities, and causing grievous bodily harm by dangerous driving,” under the NSL. It held that Tong’s display of the slogan “Liberate Hong Kong, Revolution of Our Times” was capable of inciting secession, particularly in the political context and timing. His deliberate evasion of police checkpoints and collision with officers was deemed a terrorist act intended to intimidate the public and challenge law and order. He was sentenced to a total of 9 years’ imprisonment, 6.5 years for terrorist activities and 2.5 years for incitement to secession, to be served consecutively. 

The Tong Ying-kit case raises significant concerns about the fundamental aspects of freedom of expression by criminalizing a form of political speech without applying a rights-based legal framework. The Hong Kong Court of First Instance convicted Tong for “inciting secession” under the NSL, without demonstrating that the expression posed a direct, specific, or imminent threat to “national security,” as required under Article 19(3) of the ICCPR (to which, as highlighted above, Hong Kong is signatory), and the Siracusa Principles. The Siracusa Principles and UN General Comment No. 34 state that under Article 19, any restrictions on speeches are lawful if the restriction is “provided by law,” in pursuit of a legitimate aim, as well as “necessary” and “proportionate” for achieving that aim. If a restriction does not satisfy each of these requirements, then the restriction is unlawful. This approach starkly departed from international norms, including the three-part test articulated in the Johannesburg Principles and adopted in cases such as Brandenburg v. Ohio (1969), which held that even inflammatory political speech is protected unless it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” The Court also ignored Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (2001) by the European Court of Human Rights (ECtHR), where the Court held that peaceful advocacy of territorial changes does not automatically threaten national security and that bans on such speech violate Article 10 of the European Convention on Human Rights (ECHR).

The Court failed to engage with the underlying philosophical theories that justify freedom of expression. First, the “marketplace of ideas” theory, initially articulated by Justice Holmes in Abrams v. United States (1919), posits that truth emerges through the free competition of ideas in public discourse; the Court disregarded this theory by punishing a political slogan (“Liberate Hong Kong, Revolution of Our Times”) without assessing its actual impact or allowing counter-speech. Second, the self-governance approach, which views freedom of expression as essential for informed participation in democratic processes, was overlooked when a citizen was imprisoned merely for displaying a political slogan while riding a motorbike during a protest, a form of political expression directly tied to public discourse and dissent. Third, the autonomy or individual dignity, which sees expression as central to personal development and self-realization, was violated by criminalizing Tong’s peaceful political symbolism, thereby suppressing his individual agency.

Moreover, in the absence of an explicit “intent” to incite violence, the NSL lacks clarity in defining what constitutes a seditious offense. While the presence of such an intent would offer clearer guidance, its absence leaves room for uncertainty. Moreover, terminology, such as “seditious intention,” involving emotions like “hatred,” “contempt,” “disaffection,” and others, presents a challenge when applying an objective standard, leading to subjective interpretation by authorities, making it a tool for suppressing criticism. Even peaceful actions like speaking at a rally, writing articles, or even clapping are deemed seditious, subjecting individuals to potentially harsh imprisonment. Determining whether speech elicits these subjective feelings is problematic, as the speaker may not foresee the impact of their words. What incites outrage or discontent in one person might not affect another, making it difficult to gauge the potential consequences of speech objectively. 

The Tong Ying-kit ruling further deviated from the comparative jurisprudence in Zana v. Turkey (1997), where the ECtHR stressed that restrictions on freedom of expression must be proportionate and must meet a pressing social need. In Incal v. Turkey (1998), the ECtHR ruled that punishing a person for distributing leaflets critical of government policy constituted a violation of free speech because the expression, though critical and politically charged, did not incite violence or hatred. Hong Kong’s Court of First Instance, however, chose to interpret a politically ambiguous slogan as inherently secessionist and punishable, failing to consider its multiple meanings and peaceful usage in past protests. This rationale similarly ignored the Handyside v. United Kingdom (1976) principle that freedom of expression protects not only inoffensive speech but also that which “offends, shocks or disturbs the State or any sector of the population.”

By omitting any proportionality analysis and failing to apply international legal tests, the Court challenged the very philosophical and doctrinal foundations of freedom of expression. Instead of treating dissent and symbolic protest as protected expressions in a democratic society, the Court adopted a state-centric, security-first model that criminalized peaceful political symbolism. This case, therefore, set a dangerous precedent in which the expressive act itself, devoid of any incitement to imminent unlawful action, becomes a punishable offense. The precedent diminishes the democratic value of speech, chills public discourse, and undermines the protective boundaries that international human rights law and comparative jurisprudence have erected around political expression.

No “Glory” to Free Expression in Hong Kong 

The case concerning the protest anthem “Glory to Hong Kong” demonstrates how a pseudonymously authored song came to be viewed as a national security threat by the Hong Kong government. Originally released in 2019, the song served as an unofficial anthem of the pro-democracy protests and gained symbolic importance across Hong Kong. However, after multiple accidental instances when the song was played at international sporting events instead of China’s national anthem, the government launched a legal campaign seeking a court injunction to ban the song’s distribution, performance, or display, particularly with seditious or secessionist intent. The Hong Kong authorities urged that the song’s association with the protest movement and its lyrics advocating “liberation” could encourage anti-government sentiment and incite unlawful acts, thereby threatening national security. The Court of First Instance initially rejected the Hong Kong government’s injunction request, finding that existing criminal law was sufficient to address illegal uses of the song and expressing concerns about overlapping enforcement powers. However, in May 2024, the Court of Appeal overturned the decision and granted the injunction, relying on the NSL and applying a highly deferential standard to the executive’s national security claims. It emphasized the symbolic link between the song and the 2019 protests, comparing it to weapons like bricks or petrol bombs. 

The “Glory to Hong Kong” case raised serious concerns about the erosion of freedom of expression, particularly with respect to artistic and symbolic political speech, which lies at the heart of democratic discourse.  By obtaining an injunction to ban the dissemination, performance, and even online circulation of the song, authored under a pseudonym and emblematic of the 2019 pro-democracy movement, the Hong Kong Court of Appeal effectively criminalized dissenting expression without satisfying international standards. Furthermore, the Court ignored the prior restraint doctrine, which establishes a strong presumption against government censorship before publication or performance. As established in Near v. Minnesota (1931) and reinforced in New York Times Co. v. United States (1971), prior restraints carry “a heavy presumption against constitutional validity.” The injunction against “Glory to Hong Kong” constitutes a classic prior restraint by prohibiting future performances and dissemination of the song without individualized proof of imminent harm. The Court also failed to apply the chilling effect doctrine, which recognizes that overly broad restrictions on expression can deter not only the targeted speech but also lawful expression by creating fear of prosecution. By issuing a sweeping injunction that could capture numerous forms of artistic and political expression, the Court created precisely the kind of chilling effect that freedom of expression jurisprudence seeks to prevent.

In granting the injunction against the dissemination of “Glory to Hong Kong,” the Court of Appeal failed to conduct a meaningful rights-based analysis under Article 19(3) of the ICCPR and Article 27 of the Basic Law, both of which guarantee the right to freedom of expression and require that any restrictions, as outlined above, be necessary, proportionate, and provided by law. Instead of applying the four-step proportionality test established in Hysan Development v. Town Planning Board (2016), the Court deferred heavily to executive claims of a national security risk, giving determinative weight to the Chief Executive’s certificate under Article 47 of the NSL.  The Court’s approach contradicted the content neutrality principle (see Justice Thomas’s opinion in Reed v. Town of Gilbert, Arizona (2015)), which requires that government restrictions on expression be justified by factors unrelated to the message being conveyed (see also Kagan and Mason). Content-based restrictions in the digital era require even more rigorous scrutiny due to their potential for viral suppression effects. By specifically targeting “Glory to Hong Kong” because of its association with pro-democracy protests and its symbolic meaning, the Court engaged in impermissible content-based discrimination. Any restrictions on advocacy are limited to speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Thus, it requires concrete evidence of direct incitement, not merely symbolic association with past events. The Court made no finding that the song itself directly incited imminent lawless action, instead relying on vague assertions about its symbolic association with past protests.

The Court neglected to inquire whether less intrusive means, such as targeted criminal prosecution or public clarification, could sufficiently address the purported harms or whether the injunction would excessively chill lawful speech and artistic expression. By adopting a deferential, security-centric approach, the Court bypassed the international human rights obligation to justify any restrictions with concrete evidence of necessity and narrowly tailored impact. The omission not only dilutes judicial independence but also signals a shift from the principle of constitutional supremacy to executive primacy in national security adjudication. This judicial failure is particularly problematic when viewed through the lens of the autonomy theory of free expression, which emphasizes that freedom of expression is fundamental to human dignity and self-realization. Artistic and political expression are core aspects of human autonomy that deserve robust protection. The Court’s treatment of “Glory to Hong Kong” as equivalent to “weapons like bricks or petrol bombs” fundamentally misunderstands the nature of symbolic expression and its role in a democratic society. 

This judicial approach contradicts comparative constitutional standards, where courts consistently scrutinize governmental restrictions on expression through rigorous proportionality review. For example, in S. Rangarajan v. P. Jagjivan Ram (1989), Constitutional Court in De Reuck v. Director of Public Prosecutions (WLD) (2003), and Burstyn v. Wilson (1952), Constitutional Courts have stressed that content-based restrictions, particularly those affecting artistic and political speech, must be justified by compelling reasons and tailored responses. For instance, in S. Rangarajan v. P. Jagjivan Ram, the Supreme Court of India struck down a ban on the Tamil film “Ore Oru Gramathile” (Once Upon a Time in a Village), stating that the government could not suppress artistic expression merely on apprehensions of public disorder. The Court emphasized that freedom of expression cannot be suppressed on account of threats of demonstration and processions or threats of violence and insisted on a clear and present danger test before limiting speech. In South Africa, the Constitutional Court in De Reuck v. Director of Public Prosecutions (WLD) recognized that freedom of expression includes artistic creativity and must be balanced carefully with other constitutional values. While the case dealt with the prohibition of child pornography, the Court explicitly stated that even offensive, provocative, or controversial artistic material must be scrutinized through a strict proportionality lens, especially when restrictions are justified on vague grounds such as morality or national interest. The “Glory to Hong Kong” decision, in contrast, imposed an expansive, pre-emptive restriction on all forms of public and digital interaction with the song, with no individualized showing of harm or incitement, violating the principle of least restrictive means. 

The U.S. Supreme Court’s decision in Burstyn v. Wilson, which struck down a ban on the Italian film “The Miracle” for being “sacrilegious,” firmly established that motion pictures are a form of expression protected by the First Amendment. The Court rejected the idea that the government could act as a censor based on subjective or moral interpretations of a work’s content. Similarly, the ECtHR in Vereinigung Bildender Künstler v. Austria (2007) held that a painting critical of religion was protected under Article 10 of the ECHR, underscoring that artistic expression enjoys the same protection as political speech, and that moral outrage or state discomfort alone does not suffice to justify censorship. The “Glory to Hong Kong” injunction thus stands in stark contrast to these precedents, reflecting a judicial posture of deference rather than principled engagement with the core tenets of expressive freedom. 

A Seditious T-Shirt?

The case of Chu Kai Pong, convicted for wearing T-shirts bearing slogans, highlights the increasing criminalization of symbolic political expression, particularly the right to express one’s political beliefs through clothing. On November 27, 2023, Chu Kai Pong departed his residence in Sha Tin wearing a long-sleeved T-shirt printed with the slogan “Free Hong Kong 光復香港 時代革命 (Liberate Hong Kong, Revolution of Our Times)” and travelled by bus to Hong Kong International Airport. At around 4:59 p.m., while preparing to board a flight to Taiwan at Gate 205, he was intercepted and searched by police officers. Chu was found to be wearing another T-shirt underneath, with “Hong Kong Independence 香港獨立” printed on it, and was carrying additional T-shirts and flags bearing slogans such as “Free Hong Kong, Revolution Now.” The West Kowloon Magistrates’ Court held that the slogans carried seditious meanings and aligned with the Court of First Instance, ruling that “Liberate Hong Kong, Revolution of Our Times” was capable of inciting secession under Section 24 of the Safeguarding National Security Ordinance. While emphasizing the pre-emptive and deterrent nature of sedition laws, the Court found Chu’s actions to be a deliberate, lawless, and public assertion of separatist ideology that risked undermining national security. The Court held that although the dissemination capacity was limited, the act was symbolic and its inciting nature warranted a custodial sentence. After applying a one-third reduction for his guilty plea, the Court sentenced Chu to 3 months’ imprisonment in total. 

The conviction of an individual for wearing T-shirts bearing slogans raises concerns about the erosion of the fundamental right to express one’s political beliefs through clothing. International human rights law, especially Article 19 of the ICCPR, protects not only verbal or written speech but also symbolic expression, including attire. The UN Human Rights Committee in its General Comment No. 4 has consistently affirmed that expression through symbols, gestures, or dress falls within the protective scope of Article 19 and can only be limited under the strict requirements of legality, necessity, and proportionality. Similarly, the UN General Assembly, in CCPR General Comment No. 10, stressed the importance of strict adherence to criteria regarding restrictions on freedom of expression. In Chu’s case, the Hong Kong Court failed to apply these criteria meaningfully and treated the mere act of wearing political slogans as inherently seditious, regardless of any immediate incitement or public disturbance. 

The “expressive conduct” in free expression jurisprudence establishes that non-verbal communication through clothing, symbols, and gestures deserves robust constitutional protection. For a “semiotic democracy,” the right to participate in meaning-making through symbolic expression is essential to democratic culture. By treating Chu’s T-shirts as inherently seditious rather than protected symbolic speech, the Court ignored its own (and comparative best practice) jurisprudence recognizing that political clothing constitutes a form of democratic participation that enables citizens to communicate their political identity and dissent. Furthermore, the Court failed to apply the symbolic speech framework, which requires courts to distinguish between expressive conduct and pure conduct based on the communicative intent and contextual understanding of the symbolic act. Symbolic political expression through clothing represents “identity speech” that is particularly central to democratic self-governance. The Court’s treatment of Chu’s T-shirts as equivalent to active incitement ignores the fundamental distinction between passive symbolic expression and direct advocacy of imminent lawless action that contemporary free speech scholarship has consistently maintained.

In the U.S., the Supreme Court in Tinker v. Des Moines Independent Community School District (1969) held that students wearing black armbands to protest the Vietnam War were exercising constitutionally protected speech under the First Amendment, stating that individuals do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Similarly, the South African Constitutional Court, in Laugh It Off Promotions CC v. South African Breweries International (2005), protected the right to parody a corporate trademark on a T-shirt, holding that commercial rights could not override artistic and expressive freedoms. The ECtHR, in Vajnai v. Hungary (2008), held that the criminal sanction for wearing a red star symbol, associated with a totalitarian regime, violated Article 10 of the ECHR because the symbolic act did not present a clear and present danger. Chu’s conviction stands in stark contrast to these precedents. It demonstrates an overly broad interpretation of sedition that criminalizes passive, symbolic political dissent and chills legitimate expression, undermining both the spirit and substance of international human rights protections.

The Trial of Jimmy Lai 

Jimmy Lai (also known as Lai Chee Ying) and several other pro-democracy figures were prosecuted for their roles in a peaceful but unauthorized procession on August 18, 2019, which followed a route that had been explicitly banned by the police. Although the assembly at Victoria Park was authorized, the subsequent rally on Chater Road was prohibited under the Public Order Ordinance (Cap. 245) and thus deemed an “unauthorized assembly” under Section 17A(2). Lai and others were charged with “organizing” and “knowingly taking part” in an unauthorized assembly under sections 17A(3)(b)(i) and 17A(3)(a), respectively. While the District Court convicted all defendants on both counts, the Court of Final Appeal overturned the “organizing” charge but upheld the convictions for “taking part,” emphasizing their physical leadership and the symbolism of the banner carried in defiance of police orders. 

Although the charges were not framed directly under the NSL, the prosecution and sentencing were guided by NSL-related principles, particularly regarding national security concerns and deterrence. The Court emphasized that acts of defiance against lawful police bans, even if peaceful, could undermine public order and stability, a central tenet of Articles 3 and 4 of the NSL, which mandate that rights and freedoms be exercised in a manner consistent with the preservation of national security. The case has since reached the Court of Final Appeal, which granted leave to appeal on the constitutional issue of whether Hong Kong courts should adopt a proportionality-based approach, as outlined in DPP v. Ziegler (2021), when convicting individuals under statutory frameworks that impact rights of assembly and expression. The Court refused to dismiss charges and adjourned the trial until November 2024. As of writing, Jimmy Lai concluded 52 days of testimony, wherein the closing arguments are scheduled for July 28, 2025. He remains in solitary confinement.

Jimmy Lai’s ongoing trial fundamentally violates press freedom and freedom of expression protections under both domestic and international law through its systematic targeting of journalistic activities and the criminalization of core press functions under the guise of national security. The prosecution alleges “sedition” and “conspiracy to collude with foreign agents” under the NSL for Lai’s journalism and pro-democracy activities, in clear violation of his rights to freedom of expression and fair trial. Hong Kong’s Basic Law Article 27 and Bill of Rights Article 16 protect freedom of expression, with the ICCPR requiring that any restrictions be justified, necessary, and proportionate; these standards are violated when peaceful journalistic activities lead to potential life imprisonment.

The prosecution’s approach demonstrates a chilling effect on press freedom by criminalizing standard journalistic practices, including international advocacy and source protection, which constitute essential elements of independent journalism recognized under international law. The closure of Apple Daily in June 2021, following asset freezing and executive arrests, represents what human rights organizations termed a “flagrant attack on press freedom.” The case parallels the ECtHR’s jurisprudence establishing that states cannot criminalize journalists for fulfilling their democratic watchdog function, particularly when reporting on matters of public interest. The trial’s procedural irregularities, including the selection of handpicked judges and extended solitary confinement, further violate fair trial guarantees under Article 14 of the ICCPR and undermine the fundamental principle that press freedom requires not only substantive protection but also procedural safeguards ensuring journalists can defend their work without intimidation or coercion.

Lai’s prosecution directly contradicts the ECtHR’s holding in Shayler v. United Kingdom (2002), which established that national security restrictions on media must satisfy strict proportionality scrutiny and cannot constitute blanket prohibitions on journalistic inquiry. Similarly, the U.S. Supreme Court’s landmark decision in New York Times Co. v. United States (1971) reinforced that prior restraints on press publication require extraordinary governmental justification, particularly when publications serve the public interest in democratic accountability. The charges against Lai for his journalistic activities at Apple Daily, including international advocacy and commentary on Hong Kong’s political situation, violate these established principles by imposing retroactive criminalization of protected speech without meeting the demanding threshold for national security exceptions recognized in comparative constitutional law. The Indian Supreme Court’s decision in Indian Express Newspapers v. Union of India (1985) explicitly recognized that press freedom constitutes a foundational element of democratic governance and cannot be curtailed merely on governmental apprehensions or discomfort with critical coverage. 

The trial represents a paradigm shift from Hong Kong’s previously robust press freedom protections, contradicting judicial precedents that recognize journalism as essential to democratic governance rather than a threat to state security. The systematic targeting of Lai’s media empire through asset freezing, executive arrests, and the ultimate closure of Apple Daily demonstrates the type of comprehensive state suppression that international courts have consistently condemned as incompatible with press freedom guarantees. This prosecutorial approach undermines the fundamental principle established across multiple jurisdictions that a free and independent press serves as a constitutional check on governmental power, effectively transforming Hong Kong’s legal framework from one that protects journalistic inquiry into one that subjects media practitioners to state surveillance and prosecution under expansive and vaguely defined national security provisions.

New Legal Order? 

The above cases reveal a systematic departure from internationally recognized standards governing freedom of expression and demonstrate how national security legislation has fundamentally restructured the constitutional balance between individual rights and state authority. The judicial interpretations in Tong Ying-kit, “Glory to Hong Kong,” Chu Kai Pong, and Jimmy Lai collectively establish a legal framework wherein political expression, symbolic speech, and journalistic activities are subject to criminal sanctions without the rigorous proportionality analysis required under Article 19 of the ICCPR and comparative constitutional jurisprudence. The courts’ consistent failure to apply established tests for restrictions on expression, including the requirements of necessity, proportionality, and least restrictive means, indicates a fundamental shift from rights-based adjudication to security-centric judicial reasoning that prioritizes state interests over constitutional protections.

This transformation of Hong Kong’s legal landscape has effectively eliminated the constitutional protections. The individuals arrested due to the over-criminalization of activities in the name of sedition include, inter alia, Tommy Yuen, (for singing a song containing lyrics “Liberate Hong Kong, Revolution of Our Times”); Tony Chung (for conspiracy to publish seditious publications); Cheung Kim Hung, Ryan Law, Chan Pui-man, Fung Wai-kong, and Yeung Ching-kei (CEO & Editors of Apple Daily, the popular pro-democracy newspaper which published articles advocating for sanctions); Wan Yiu-sin (for expressing dissent on his radio show); Tong Cheuk-him and Shum Ka-hon (charged with conspiracy to publish seditious material); Chloe Cho and Wong Chun-wai (printing and disseminating flyers advocating for Hong Kong independence and the formation of a local army); Chan Yuen-sum, Fong Tsz-ho, Ng Hau-yi, and Lai Man-ling (publishing three “seditious” cartoon books for children); and Chan Tai-sum (posting seditious messages on social media platforms including Telegram). These cases represent an expansion of state power that extends far beyond traditional conceptions of national security threats and encompasses forms of expression that international human rights law has consistently recognized as protected speech. The prosecutorial and judicial approaches documented in these cases establish precedents that fundamentally alter the relationship between citizens and the State in Hong Kong, transforming the territory from a jurisdiction that protected robust political discourse into one where expression itself becomes a potential criminal offense.

The complexity of categorizing every act as seditious now exceeds the level seen during the Colonial-era suppression of expression and speech, with six people arrested on “sedition” charges after they “caused nuisance” during court hearings by clapping, activist-authored books removed from libraries, professors criticized for moderate views, films subjected to screening bans, warnings issued to book fair sellers, and anti-government websites blocked. These cases constitute extensive censorship measures in academia, civil society, and public life, enforced through legal and extra-legal methods. The implications of such developments extend beyond Hong Kong’s borders, offering insights into how national security frameworks can be employed to systematically dismantle constitutional protections for fundamental rights. The rapidity and comprehensiveness of this transformation demonstrate that established constitutional arrangements, international legal obligations, and judicial independence can be effectively neutralized through legislative intervention and compliant judicial interpretation. 

The cases analyzed in this article thus serve as cautionary tales of how democratic institutions and human rights protections can be systematically undermined while maintaining the formal structures of legal process, highlighting the fragility of constitutional guarantees in the absence of institutional checks and balances capable of resisting executive and legislative encroachment on fundamental freedoms.