Arrest Data Show National Security Law Has Dealt a Hard Blow to Free Expression in Hong Kong

On December 29, 2021, two hundred national security police officers raided a newspaper headquarters and arrested several individuals at various locations across Hong Kong. The exceptional number of police officers involved suggested those arrested were violent criminals, requiring extra force to apprehend. But the individuals in question were not international drug smugglers or terrorists. Rather, they were journalists and board members of Stand News, one of the city’s leading news websites. Executing their arrests was the Hong Kong police’s National Security Department (NSD), a new entity formed under the auspices of the 2020 National Security Law (NSL).

Among those arrested were Patrick Lam, Stand News’ acting editor-in-chief; Denise Ho, a Cantopop singer and prominent pro-democracy advocate who had served on Stand News’ board; and Margaret Ng, a legal scholar and former elected legislator who was one of Stand News’ founders. In total, Hong Kong authorities arrested seven individuals, and charged two of them, with conspiracy to publish seditious materials under the Crimes Ordinance, although which of Stand News’ stories was supposed to have run afoul of the law was never specified. (One of the seven, former Apple Daily associate publisher Chan Pui-man, was already in custody at that time, and was rearrested for her role in the Stand News case.)

The day of the arrests, Stand News announced its immediate closure. Its website quickly went offline. Its various social media accounts were shuttered. Employees of the news outlet found themselves suddenly without jobs.

More than a year and a half after it went into effect, the NSL and its lead implementer, the NSD, remain key tools for the suppression of human rights and pro-democratic activism in Hong Kong. The Georgetown Center for Asian Law has tracked every NSL-related arrest since July 1, 2020. (Our data include all NSL arrests, as well as other arrests conducted by the NSD for non-NSL offenses. We refer to these cases as national security cases, national security arrests, or alleged national security crimes.)

Our data show that the NSD has broadened the types of speech it considers dangerous, enhanced its legal toolkit for repression, and regularly detained people for extended periods with minimal judicial oversight. The NSL’s enforcement has weakened Hong Kong’s civil society sector in ways that extend beyond the plight of individuals caught in its maw.

From July 1, 2020 to March 28, 2022, 183 individuals were arrested for alleged national security crimes. These arrests were mostly related to the NSL, but also to other crimes, such as sedition. This breaks down to an average of almost nine arrests per month. Very few of these cases would constitute national security-related crimes in other rights-respecting jurisdictions. As was the case in our previous analysis of NSL arrests in May 2021, the vast majority of arrests targeted activities that would be considered peaceful and constitutionally-protected exercise of basic political and civil rights in other jurisdictions. In fact, such activities would have been protected in Hong Kong itself prior to the NSL’s enactment in July 2020.

As was the case in May 2021, most arrests in connection with the NSL are linked to one of three aims: the dampening of free speech, the punishment of those maintaining foreign contacts, or the crackdown on pro-democratic opposition political figures. More than 10 months later, these three categories remain at the core of the NSL’s day-to-day use by the government.

As of March 28, speech crimes constitute nearly a third of all NSD or NSL arrests. This includes arrests made for “seditious” or “secessionist” speech. Silencing pro-independence statements—such as popular slogans from the 2019 protest movement, including those free of overtly pro-independence language—remains a high priority for the government. This accounts for the arrests of individuals for wearing t-shirts or possessing stickers bearing slogans like “Liberate Hong Kong, Revolution of Our Times,” or of individuals who merely possessed printed materials advocating Hong Kong independence.

It seems clear that the government has drawn a red line, and that pro-independence rhetoric is now completely banned. Going forward, those who persist in employing it will almost certainly be arrested. However, the government has also broadened its approach, using the NSL and other local laws as a tool to censor and punish other kinds of speech. In July 2021, on the anniversary of Hong Kong’s reversion to Chinese sovereignty, a man attacked a police officer with a knife, seriously wounding him before taking his own life. The Hong Kong University Student Union soon issued a statement mourning the attacker’s death. The following month, the NSD arrested four students involved with the statement, charging them with advocating terrorism.

The government has also used national security laws to target individuals who have been critical of the government’s at times flailing response to COVID. In February and March of this year, for example, five individuals were arrested for sedition, in part over comments they made on social media critical of the government’s COVID response. On February 15, the NSD arrested Cantopop singer and democracy activist Tommy Yuen after he made comments on social media that allegedly “vilified” the government’s COVID policies. Yuen also posted comments online criticizing the Hong Kong judiciary and the police. Just days after Yuen’s arrest, the NSD arrested two women after they took to social media to urge people not to get vaccinated against COVID and to resist newly-imposed government COVID restrictions. They too were charged with sedition.

These cases make clear that limits on free speech extend well beyond a narrow list of pro-democracy slogans and calls for Hong Kong independence. They also signal that the government is adapting and expanding its censorship regime to accord with its perception of its need for social control.

Around 12 percent of national security arrests relate to “colluding with foreign forces.” Attracting foreign support was a key element of the pro-democracy movement’s strategy in 2019, and authorities appear to have crafted the NSL in part as a tool to break ties between activists in Hong Kong and their supporters abroad. In June 2021, for example, police arrested five senior executives from the now-defunct pro-democracy newspaper Apple Daily for alleged collusion with foreign forces. Prosecutors later affirmed that the arrests stemmed in part from editorials published in Apple Daily calling on Western countries to impose sanctions on Hong Kong officials over rights abuses committed during the 2019 protests.

The NSD has cited “subversion” as a justification for nearly 38 percent of arrests. Unsurprisingly, given how imprecisely the authorities define subversion, allegations of crime in this category span a broad range of activities. Most notably, the police have used “subversion” to crack down on the formal pro-democratic opposition in Hong Kong: 55 pro-democratic legislators and activists were arrested on January 6, 2021 for subversion. But the authorities have deployed NSL subversion provisions against other targets as well, such as seven members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China who were arrested in September 2021. Their crime? Five of them were charged with refusing to turn over information to the NSD related to the group’s activities, and three of them were charged with inciting subversion because of the group’sstated goal to “end one-party dictatorship.”

There are also a small but growing number of cases in which individuals have been accused of planning acts of politically-motivated violence. The government has charged 28 such individuals with either subversion or terrorism under the NSL. Those arrested include members of Returning Valiant, a student group which advocates Hong Kong independence. Ten months after the first Returning Valiant arrests, little information about the cases is available in the public domain, making it difficult to assess the validity of the charges.

The impact of national security cases can extend beyond the injury to the individuals arrested. This appears intentional. In the case of Stand News, for instance, the seven arrests led not only to Stand News’ closure, but to the shuttering of other leading news outlets as well, such as Citizen News, another digital news outlet known for its independent journalism. Similarly, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China—the group that held the annual June 4 candlelight vigil in Hong Kong’s Victoria Park—voted to disband just two weeks after police arrested its top leadership. For other organizations, like the China Human Rights Lawyers Concern Group, the opening of a police investigation was enough to prompt an immediate closure. As of the end of January, 68 civil society organizations had disbanded or closed since the beginning of 2021 in light of growing NSL threats to civil society groups. The NSL is reshaping civil society in Hong Kong and dramatically limiting the scope of acceptable civic activity and public discourse.

Moreover, through its denial of bail in the vast majority of NSL-related cases, the Hong Kong government has created a system of de facto long-term detention without trial. On February 28, 2021, authorities charged 47 politicians and activists who had been arrested in the mass sweep on January 6 for their role in organizing a primary election in advance of the LegCo elections in July 2020, which were eventually held in December 2021. Now, over a year later, most of these charged individuals remain in jail as they await trial. While less prominent defendants have been released under very stringent bail conditions, 34 of the 47 have been forced to remain in custody pending trial. At this point, the defendants we are tracking have cumulatively served several decades in pre-trial detention, despite the fact that most were arrested for non-violent actions that would not be considered crimes in other jurisdictions. Whether intentional or not, authorities’ effective elimination of bail for both NSL and other national security cases has given the authorities the power to jail anyone it choses for months at a time.

In a number of mostly low-level cases in which the defendants pledged to change their behavior, however, the NSD has granted bail and held off on prosecution. Thus far, 99 of the 183 individuals arrested have been released on bail. In those cases, the government may have concluded that arrest and short-term detention were sufficient to meet its goals. Those released on bail usually must surrender their passports, and are subjected to other highly restrictive bail conditions. They have a strong incentive to refrain from any activity the court might construe as politically provocative, as such activity could lead to revocation of their bail. Most people arrested for alleged national security crimes have not received such comparatively lenient treatment.

Finally, even the limited number of convictions and sentences thus far shows that the government wants the NSL to serve as a strong deterrent. Although only four of the 107 people charged under the NSL or with sedition have been tried, convicted, and sentenced thus far, the lengthy sentences that they received sent a strong signal to Hong Kong’s pro-democracy community: those convicted of NSL crimes will be punished severely. The individuals sentenced thus far have received prison terms ranging from three to nine years.

When the NSL first passed, many outside observers hoped that the Hong Kong government would exercise restraint: The existence of the law itself, they believed, could serve as a sufficient deterrent to more outspoken pro-democratic and pro-independence activities. The law could be held in reserve, used in only the most extreme circumstances. In this way, the NSL might have minimal impact on Hong Kong’s vibrant political and civic life. Instead, the government has made regular and active use of the law over the past 21 months.

At this stage, supporters of Hong Kong’s autonomy can only hope that the government will instead decide that, for now at least, it has achieved the core goals of the NSL. With the pan-democratic political parties deeply wounded, several key media outlets purged, civil society decimated, and the education and cultural sectors practicing self-censorship, the government could easily conclude that the situation in Hong Kong is under control, and that a long-term pause on NSL arrests is justified. Such a move would do little to help the individuals currently on trial for national security offenses, and wouldn’t undo the broader damage done to liberal values and institutions in Hong Kong. But it would be a welcome effort to limit the destruction, and could, at some point, open a path to healing the wounds inflicted on Hong Kong society.

Note: Three companies, Apple Daily Limited, Apple Daily Printing Limited, and AD Internet Limited, were charged and their properties were frozen under the collusion provision of the NSL on June 18, 2021. The Hong Kong Alliance in Support of Patriotic Democratic Movements of China was charged with inciting subversion and its assets were frozen under the NSL on September 9, 2021. Stand News was charged with publishing seditious materials and the NSD froze its assets on December 29, 2021. This database does not include corporate entities.