Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The Hong Kong Special Administrative Region District Court held Tam Tak-Chi, a prominent radio host and pro-democracy activist, guilty on 11 out of 14 charges, including uttering seditious words, organizing unauthorized assemblies, and inciting others to participate in unauthorized assemblies. The charges stemmed from Tam Tak-Chi’s speeches and actions criticizing the government, the National Security Law, and the Chinese Communist Party between January and July 2020. The court dismissed his challenge to the constitutionality of the sedition charges, ruling that the laws were necessary for national security. The court accepted expert testimony supporting the prosecution’s interpretation of Tam Tak-Chi’s slogans as advocating for Hong Kong’s separation from China. Despite his acquittal on disorderly conduct charges, Tam Tak-Chi was sentenced to 40 months in prison and fined HK$5,000 (approximately 640 USD) for his involvement in activities deemed seditious by the court.
This case summary has relied on the work of Trial Watch’s Fairness Report
On September 6, 2020, Tam Tak-Chi, the Respondent, a well-known radio host of “Fast Beat” and Vice-Chairman of the pro-democracy political party “People Power” in Hong Kong, was charged under 8 charges inter alia with public order offence, such as incitement to take part in an unauthorized assembly, holding an unauthorized assembly, disorderly conduct, and conspiracy to utter seditious words, based on a series of public events he spoke at between January and July 2020. Earlier, Tak-Chi was arrested on multiple occasions, January 25, 2020; May 24, 2020, and July 17, 2020, by the police authorities concerning his public addresses under charges of incitement to take part in unauthorized assembly and disorderly conduct in a public place, however, he was granted bail in these arrests.
After his arrest in September, the Hong Kong authorities also framed allegations under the Colonial-Era Sedition Law to arrest and prosecute Tam Tak-chi for “uttering seditious words” at these events, including political slogans such as “Liberate Hong Kong, the revolution of our times”, criticism of the 2020 National Security Law, and insults and criticism of the Chinese Communist Party and the Police.
During the time Tam Tak-chi was arrested, the Hong Kong authorities had introduced the National Security Law. Some of the provisions of the National Security Law concerning the incorporation of a “National Security Judge” were applied to Tak-Chi’s trial leading to a total of 14 charges. On September 8, 2020, Tak-Chi applied for the Bail before the Magistrate Court holding a sign in court that said “You want me to shut up? I’ll speak even louder.” The Magistrate Court denied his bail and remanded him to custody. On November 17, 2020, the Court again denied his bail application.
On March 2, 2022, the Trial Court found Tak-Chi guilty and convicted him on 11 charges out of 14 charges. The Trial Court convicted him for 3 years and 3 months (40 months) along with a fine of HK$5,000 fine (approximately 640 USD). The sentence, first set off to March 31, 2022, was delayed again due to COVID-related court closures and delivered on April 20, 2022.
Judge Chan Kwong-Chi of the District delivered the conviction ruling. The Court first determined issues including the constitutionality of the sedition provision and interpretation of Tam Tak-Chi’s statement and later adjudicated upon the charges.
The prosecution called seven witnesses to support their claim, inter alia including police officers and individuals who were present at various rallies organized by Tam Tak-chi. These witnesses testified about Tam Tak-Chi’s actions and speeches, highlighting instances where he incited crowds, chanted slogans, and distributed materials advocating for the separation of Hong Kong from China. The Prosecution also introduced video evidence from different events, illustrating Tam Tak-chi’s involvement in unauthorized assemblies and his use of provocative language against the government and law enforcement. Additionally, the Prosecution relied on expert testimony from Professor Lau Chi-pang, a history professor, who analyzed the slogan “Liberate Hong Kong, Revolution of Our Times.” Professor Lau’s interpretation supported the Prosecution’s contention that the slogan inherently implied secessionist intentions and aimed to separate Hong Kong from the People’s Republic of China. Another expert, Senior Inspector Cheung Wai Man, presented research findings on the prevalence of the slogan in videos related to violent and subversive activities, further reinforcing the Prosecution’s stance. [para 7-33]
On the other hand, Tam Tak-Chi relied on the expert opinion of Professor Leung, who contested the Prosecution’s interpretation of the slogan “Restore Hong Kong, Revolution of Our Times.” Professor Leung criticized the Prosecution’s expert, Professor Lau’s interpretation, for providing an incomplete description of the term “restoration.” Using extensive linguistic analysis, Professor Leung argued that the term “光復” (“Guangfu”), translated as “restore” in the slogan, had a broad meaning of restoration or recovery, encompassing various contexts like recovering old viewpoints or rectifying social and political problems. She also examined the term “revolution” in different non-political contexts, emphasizing its usage beyond political revolutions, such as technological or agricultural revolutions. Professor Leung cited examples and news reports to demonstrate the diverse interpretations of the slogan and argued that it represented a call to solve problems, return to an ideal state, and bring Hong Kong back to a desirable condition. She critiqued the Prosecution’s expert for narrow interpretation and methodological flaws, asserting that the slogan was metaphorical and open to varied interpretations, concluding that the prosecution’s expert failed to grasp its contemporary and multifaceted usage. [para. 34-42]
Moreover, Tam Tak-Chi also challenged the Constitutionality of Sections 9 and 10 of the Crimes Ordinance. Tam Taki-Chi contended that Articles 27 and 39 of the Hong Kong Basic Law and Article 16 of the Bill of Rights emphasize the multiple freedoms of Hong Kong residents, including the right to freedom of expression. He further contended that the legal definition of a criminal offense must be sufficiently precise to enable the public to know in advance or to seek appropriate advice on, whether an act is lawful or unlawful. [para. 43]
Tam Tak-Chi contended that the Crimes Ordinance lacked a precise and clear definition of seditious words, making it difficult to establish a legal basis for the charges. He contended that in the diverse and pluralistic society of Hong Kong, it was challenging to determine a uniform and objective standard for judging seditious intent, rendering the charge unconstitutional. Tam Tak-Chi further invoked the principle of proportionality, contending that the incitement offenses were disproportionate and did not strike a reasonable balance between legitimate aims and restrictions on freedom of speech. Tam Tak-Chi referred to Hysan Development Co Ltd v. Town Planning Board (2016) and emphasized the lack of a legitimate aim in the ordinances and pointed out that the failure to prosecute sedition charges since the 1970s indicated the incompatibility of the law with modern human rights standards.
In lieu of the arguments, the Court before determining the charges framed against Tam Tak-Chi adjudicated on three issues, i.e., the constitutionality of the offense of publishing seditious words; the meaning and nature of Tam Tak-Chi’s statement “Restoration of Hong-Kong Time Revolution” and the text against the National Security Act/Communist Party. [para. 51]
On the Constitutionality of the offense of sedition, the Court considered Tam Tak-Chi’s argument, that the definition of “seditious intent” was overly broad, making it challenging for the public to understand and comply with the law. Furthermore, that the Basic Law and Bill of Rights protect the fundamental right to freedom of speech and expression. The Court noted that the fundamental importance of free speech and assembly is not absolute and is subjected to limitations and restrictions. The Court noted that Sections 9 and 10 of the Ordinance targeted offenses against the state, the administration of justice, and individuals within the community. The Court asserted that, although offenses under these sections had been in place for a long time, they required flexibility to adapt to changing circumstances. [para. 52-55]
Considering the above, the Court held that Section 9 of the Ordinance, in setting out the non-incendiary exceptions, seeks to strike a proportionate and sensible balance, a balance which is informed by considerations of regionality and local social circumstances. The Court held that “sedition is an offense against national security under the existing laws of the SAR, and it is natural that restrictions should be imposed for the protection of national security. It is also in the collective interest of the community to achieve social peace and order.” [para. 57] The Court dismissed the defense’s argument that the lack of prosecution under the Ordinance since the 1970s indicated its incompatibility with modern human rights law, emphasizing that several factors could contribute to this decision, such as changes in the political and social landscape. The court concluded that, in line with the Basic Law and the Bill of Rights, the offenses under the Ordinance were constitutional and aimed at protecting national security. [para. 58]
On the meaning and nature of Tam Tak-Chi’s statement “Restoration of Hong-Kong Time Revolution,” the Court highlighted that this was not the first time the Court had examined this slogan and acknowledged the Prosecution’s expert’s interpretation that the slogan aimed to separate Hong Kong from the People’s Republic of China. The Court noted that Tam Tak-chi attempted to reinterpret the slogan based on linguistic analysis and had claimed that the slogan’s meaning depended on who used it and the context, citing various sources, including Google Trends and interviews, to contend that the slogan had multiple interpretations and lacked a specific meaning. However, the Court accepted the Prosecution expert’s interpretation that the slogan primarily advocated the separation of Hong Kong from the People’s Republic of China. The Court found that Tam Tak-Chi’s argument was not sufficient to refute this interpretation, and the the use of the slogan was consistent with an intent to separate Hong Kong from the People’s Republic of China. [para. 59-68]
On the issue of texts against the National Security Act or the Communist Party, the Court concluded that Tam Tak-Chi’s statements regarding the National Security Act and the Communist Party did not merely point out shortcomings but rather constituted incitement against these entities. It noted that Tam Tak-Chi’s speeches were politically charged, and he incited others to disregard the National Security Law, challenge the police’s authority, and engage in violent actions against pro-establishment legislators. The Court disagreed with Tam Tak-Chi’s interpretation of the relationship between “Her Majesty” and the “Government of Hong Kong” and found that Tam Tak-Chi’s criticisms extended beyond mere exposition and legitimate criticism. The Court emphasized that the case’s focus was on Tam Tak-Chi’s seditious writings against the SAR Government, which holds public power. [para. 69-74]
After addressing the primary issues, the Court adjudicated the charges framed against Tam Tak-Chi.
The Court convicted Tam Tak-Chi of inciting others to knowingly participate in an unauthorized assembly. The Court found that the Tam Tak-Chi repeatedly called for people to join an unauthorized procession, regardless of its finish line, and engaged in abusive language against the police. [para. 75-80] On the charges related to the publication of seditious writing and material, the Court convicted Tam Tak-Chi and ruled that Tam Tak-Chi used derogatory language and made seditious accusations against the police and the government, with the intent to arouse hatred and contempt for the authorities and incite rebellion. The Court held that Tam Tak-Chi’s calls to disband the police force was an unlawful attempt to change Hong Kong’s legally established framework. [para. 81-82, 96-100]
On the charges of disorderly conduct in public places, the Court found Tam Tak-Chi not guilty. While Tam Tak-Chi used abusive language, the Court determined that his conduct did not escalate into a breach of the peace or disrupt social order. Therefore, the Tam Tak-Chi was acquitted of the said charge. [para. 83-95]
On the charges of holding an unauthorized assembly, refusing to obey police orders, and uttering seditious words, the court found Tam Tak-Chi guilty due to his attempts to organize unauthorized assemblies, resist police warnings, and publish seditious materials with the intent to provoke hatred and disobedience. The Court also found Tam Tak-Chi guilty of publishing inciting words. The Court determined that Tam Tak-Chi’s statements were meant to stir dissatisfaction with the SAR, provoke disobedience to the National Security Law, and encourage hostility toward law enforcement. [para. 118, 121, 124, 127, and 130]
In conclusion, the Court found Tam Tak-Chi guilty of 11 charges out of 14, which included seven counts of uttering seditious words, one count of organizing an unauthorized assembly, one count of disorderly conduct in public places, one count of inciting others to participate in an unauthorized assembly, and one count of refusal to comply with police orders.
In terms of sentencing, Tam Tak-chi was sentenced to 40 months in prison and fined HK $5,000 (approximately 640 USD). The Court imposed a range of sentences, including two years for inciting others to participate in an unauthorized assembly, 21 months for the sedition charges (with 12 months to be served consecutively), one month for disorderly conduct, and one-and-a-half years for holding an unauthorized assembly (with three months to be served consecutively).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling contracts expression both due to procedural and substantial reasons. The use of a specially designated judge under the National Security Law deprived Tam Taki-Chi of the right to an impartial and independent tribunal. The law under which he was charged was unfair to begin with as there are wide interpretations given as to what kind of speech and activities could be criminalised. The authorities in question relied on an outdated, colonial-era law for a range of political statements that are protected by human rights. The sentence is a disproportionate sanction on the exercise of the rights of the freedom of expression and assembly. Using criminal proceedings against political speech and campaigning seems to have the purpose of punishing Tam Taki-Chi for his criticism of the political environment and chilling public criticism. Additionally, it has the potential to send a message that participating in pro-democracy election activity can be constituted as a national security offense.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“Hong Kong’s colonial-era sedition law had not been used for many years but had been repeatedly criticised by advocates in Hong Kong and UN officials for the overbreadth of its statutory language and the potential for its misuse to punish political speech. In this, the first trial under the sedition statute in decades, these fears were indeed realized.”
Case significance refers to how influential the case is and how its significance changes over time.
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