Sentencing Of Hong Kong Democrats Just The Latest Legal Blow – Analysis

By Brendan Clift

On 19 November 2024, a Hong Kong court sentenced 45 pro-democracy activists to jail terms between four and 10 years for conspiracy to commit subversion, an offence under the national security law Beijing imposed on the region in mid-2020.

The 47 charged — a diverse group including lawmakers, academics, unionists, campaigners and community leaders — had participated in unofficial primary elections held by the pro-democracy camp in late 2020, with the aim of winning the maximum number of available seats at the next Legislative Council election to improve leverage over the government.

More than 600,000 people voted in those primaries — almost 10 per cent of Hong Kong’s population — less than a year after the pro-democracy camp won a landslide victory in the 2019 District Council election, tripling its seats and ousting many pro-establishment politicians amid a record voter turnout. These votes revealed high levels of political engagement and support for opposition politicians at the same time as widespread and often unruly anti-government protests unfolded in Hong Kong. The government likely saw this combined movement as an existential threat that must be decisively put down.

The ‘Hong Kong 47’ were not the first diverse opposition collective to be prosecuted — the 2019 ‘Umbrella Nine’ are a notable earlier example — but these proceedings were unprecedented in their scale. Sixteen defendants pleaded not guilty and stood trial before three specially selected ‘national security judges’ in the Court of First Instance. Fourteen of those were convicted, eight of whom plan to appeal their convictions and sentences.

Western democracies criticised the Hong Kong 47 sentences and the handling of the cases overall, with Australia expressing ‘strong objections’ and the United States foreshadowing new visa restrictions on Hong Kong officials. Amnesty International called the affair ‘a ruthless purge of the opposition’ — an accurate assessment, given that the Hong Kong 47 included almost all pro-democracy candidates who were readying to contest the next Legislative Council election.

In response to these critiques, the Hong Kong government issued a lengthy statement just one day after the sentences were handed down, condemning the ‘untruthful smearing and unscrupulous attacks’ coming from overseas. The statement labelled criticisms ‘typical despicable political manipulation’ and urged outsiders to ‘stop interfering in China’s internal affairs’, distinctive phrasing that confirms Beijing is now running the Hong Kong government’s public relations.

National security laws are common worldwide, but Hong Kong’s is unusually strict. The subversion offence goes beyond the more common (but still controversial) offence of sedition by criminalising acts that merely disrupt or undermine the government. Its inchoate ‘conspiracy’ form attaches a harsh criminal penalty to a speculative disruption — and in this case, one that is an ordinary part of democratic politics, where legislative majorities rule.

That is not even to mention the national security law’s presumption against bail, cancellation of trial by jury and mechanism to transfer major trials out of Hong Kong and into mainland jurisdiction.

Also unusual by international standards is the Hong Kong government’s strong appetite for prosecution, which has included reviving long-abandoned criminal laws. In August 2024, editors of the now-defunct Stand News were convicted under a colonial sedition law that had lain dormant since 1967, after they published interviews and opinion articles on Hong Kong’s political malaise.

Hong Kong’s courts continue to apply established judicial methods, like the principle that penal provisions are to be construed narrowly. But the impulse to protect civil and political rights is cooled by strict legislation and the political reality that Beijing has no more patience for regional autonomy. Courts in authoritarian contexts fear to assert themselves lest they be placed under further constraints.

Hong Kong’s judiciary has already suffered several blows, including the resignation of foreign judges and the indefensible requirement that judges in national security cases are to be politically selected, which does little to dispel the impression that defendants may not receive a fair trial.

The government and the courts make a virtue of long, detailed judgments which often run into the hundreds of pages, but conversations with local journalists suggest that all this judicial ink does little to clarify the safe ground for critical expression, nor does it convince the public that these laws and the decisions made under them are legitimate.

The rule of law remains, but in diminished form. Hong Kong is open for business, but not for politics.

The Legislative Council has already been reconfigured to prevent pro-democrats from being elected, and the Hong Kong 47 case shows that wider democratic behaviours have been criminalised. Meanwhile, changes to the education system are attempting to reprogram the population to accept political disempowerment.

Despite the political persecution playing out in Hong Kong, news cycles are brief and, with no shortage of war and turmoil elsewhere in the world, limited attention is being paid to China’s peripheries. The world might take more notice if Beijing sent in the tanks, as some speculated they might. As it is, Hong Kong’s freedoms are experiencing a less dramatic, but similarly destructive, death by a thousand legalistic cuts.

• About the author: Brendan Clift is Lecturer at Melbourne Law School at the University of Melbourne.
• Soure: This article was published by East Asia Forum