Three Years in, Hong Kong’s National Security Law Has Entrenched a New Status Quo

On March 20, 2023, a Hong Kong court sentenced three people to prison for sedition. Police had arrested them in January, during and after a raid on a book fair in Mong Kok, for the purported crime of selling self-published books about the city’s 2019 protest movement. All three—Alan Keung Ka-wai, 31, Alex Lee Lung-yin, 52, and his wife, Cannis Chan Sheung-yan, 48—pleaded guilty, received sentences of between five and ten months and pledged to refrain from such acts in future.

Keung’s, Lee’s, and Chan’s sedition convictions illustrate the evolution in the government’s use of Hong Kong’s National Security Law (NSL) and sedition provision of the Hong Kong Crimes Ordinance, a British colonial-era law that officials revived after the 2019 protests. By spring 2022, nearly two years after the NSL came into effect, the government had largely succeeded in using national security laws to reshape political and civic institutions and life in Hong Kong. Opposition political parties were decimated, civil society groups closed down, and once-vibrant media outlets were shuttered. Scores of top pro-democratic figures had either been arrested or fled Hong Kong. Those who have not been arrested and who have chosen to remain have been forced to watch what they say, otherwise they too could be prosecuted for a national security crime.

Over the past year, the government has moved into a consolidation phase, one in which the law is used to maintain the newly-created status quo. In this context, national security arrests happen less frequently. (Unless otherwise specified, we apply the designation “national security” to arrests made in connection with the four NSL criminal provisions and the sedition provision of the Crimes Ordinance, as well as to arrests made by the Police Force's National Security Department for other crimes. “National security crimes” are those for which these three types of arrests are made.) Instead, the government generally relies on other tools—including administrative measures, public messaging, and self-censorship—to maintain overall control and to enforce now well-established political and social red lines.

However, the authorities are still using national security laws to arrest and prosecute those who have crossed red lines, or have otherwise engaged in acts that the government deems unacceptable. For the most part, the sedition provision of the Crimes Ordinance is now the government’s preferred criminal tool. According to national security arrest and prosecution data collected by the Georgetown Center for Asian Law (GCAL), sedition cases like Keung, Lee, and Chan’s now represent the vast majority of new national security cases.

The government’s definition of “national security” has proved almost infinitely elastic, and has included such “crimes” as holding a primary election, publicly chanting now-forbidden 2019 protest slogans, and even efforts by journalists to report on political developments in Hong Kong. As GCAL’s research on the implementation of the NSL has made clear, the vast majority of national security cases that have emerged over the past year would not be considered crimes in other, rights-respecting jurisdictions. Instead, they would be considered constitutionally-protected acts of free expression, association, and assembly.

The government’s new national security toolkit has achieved its desired effect: three years after the NSL went into effect, the government continues to boast a 100 percent conviction rate.

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The NSL has depressed virtually all aspects of political life in Hong Kong since its inception in July 2020. Authorities have forced once-vibrant pro-democracy political parties to shut down, leaving Hong Kong’s legislature bereft of opposition figures for the first time in its history. The government has curtailed press freedom, and self-censorship runs rampant. Dozens of non-governmental organizations have been forced to shutter, and in some cases their leaders have been jailed or have left Hong Kong. Academic freedom is now in doubt: education officials have issued new guidelines calling on teachers to promote the new law, which suggests that criticism of the law is unwelcome or even potentially illegal. Some teachers who refuse to toe the line have been fired and forced to leave the profession.

01.05.24

Tracking the Impact of Hong Kong’s National Security Law

These graphics are based on research by Lydia Wong, Eric Yan-ho Lai, Charlotte Yeung, and Thomas Kellogg. The graphics are regularly updated, and earlier versions of them, along with analysis of the data, appear in “New Data Show Hong Kong’s...

The NSL’s criminal provisions in particular have played a central role in the reshaping of Hong Kong’s core civic and political institutions. On January 6, 2021, for example, the government arrested several dozen top pro-democratic legislators, eventually charging 47 of them with subversion under Article 22 of the law. The Hong Kong 47 trial is ongoing, and a verdict in the case is expected later in the year. Media mogul Jimmy Lai, already in prison after being convicted of other, non-national security crimes, is currently awaiting trial for conspiracy to collude with foreign forces under Article 30 of the NSL, collusion with foreign forces, and for sedition. It’s unclear when Lai’s trial will end, but a not-guilty verdict seems highly unlikely.

Overall, arrest and prosecution numbers over the past three years show that the Hong Kong government has not hesitated to use new national security laws to crack down on its political opponents. According to GCAL data, as of July 1, 2023, 264 individuals have been arrested by the Hong Kong Police Force for national security crimes, the vast majority for NSL crimes or for sedition. Over the past three years, the government has arrested an average of 7.3 individuals per month, although, as discussed in more detail below, the pace of arrests and prosecutions has slowed over the past year. Of those, 148 were criminally charged, and 103 have either been convicted or pled guilty. 45 national security cases are currently ongoing.

As our analysis was being prepared for publication, the Hong Kong government opened a new front in its crackdown on dissent. On July 3, Hong Kong Police National Security Department (NSD) Chief Steve Li announced arrest warrants for eight prominent overseas Hong Kong activists, including former legislators Ted Hui and Dennis Kwok, and activists Nathan Law and Anna Kwok. (Also included was Kevin Yam, a former Hong Kong-based solicitor; Yam is a fellow at the Georgetown Center for Asian Law.) At the same time, Li also announced that the Hong Kong government was offering bounties of up to HK$1 million (approximately U.S.$128,000) for information that would lead to their arrest and prosecution.

Given that all eight reside in countries that are unlikely to refoul peaceful activists—who are in some cases citizens of the countries in which they now reside—it is unclear whether the move will lead to any additional arrests or prosecutions. Still, Li’s announcement shows that the Hong Kong government continues to target those who, in its view, represent a national security threat to Hong Kong—or, more accurately, a peaceful political challenge.

 

Shifting from the NSL to Sedition

 

Cases like those of Jimmy Lai and the Hong Kong 47 continue to work their way through the system, but they are no longer representative of the role that the NSL now plays in that system. With the work of reshaping Hong Kong’s institutions now largely done, the newly-constructed national security state has moved into a consolidation phase. The government now primarily uses the sedition provision of the Crimes Ordinance to preserve and enforce the status quo, and to ensure that the public remains aware that certain red lines, if crossed, will lead to criminal punishment. The NSL itself is used more sparingly, generally to go after new targets or to address more significant threats to the status quo, should they emerge.

Data collected by GCAL illustrates the shift in government strategy. Over the past year, the sedition provision of the Crimes Ordinance has become the government’s preferred tool for cracking down on peaceful political speech and activity: Nearly 60 percent of national security arrests were for sedition. Authorities arrested 28 individuals for sedition over the past year, with nine individuals either pleading guilty or convicted after trial. Another 15 individuals were released without charge. The cases of four other individuals are pending.

NSL- and Sedition-Related Arrests

Why has sedition come to play such a predominant role? As compared to NSL crimes, sedition carries lesser penalties. Individuals convicted of sedition can be sentenced to up to three years in prison, whereas crimes detailed in the NSL carry penalties of up to five years, or, in serious cases, 10 years to life. Sedition’s relatively light penalties are a better fit for the government’s goal of curbing relatively low-level speech crimes, like those committed by booksellers Keung, Lee, and Chan. The punishment in such cases is meant to be harsh enough to serve as a deterrent, but not so stiff as to alienate relative moderates inclined to support the government. At the same time, sedition’s lighter penalties may make it easier for the government to ensure judicial compliance—they are likely easier for the court system to swallow.

Sedition’s elastic legal definition also more readily applies to a broad range of speech crimes. Under the colonial-era provision, any individual who “excite[s] disaffection against” the government or “counsel[s] disobedience to the law” can be prosecuted for sedition. By contrast, the subversion provision of the NSL refers to “overthrowing or undermining the basic system of the People’s Republic of China,” or to “attacking or damaging” Hong Kong government facilities and rendering them “incapable of performing [their] normal duties and functions.” The bar is thus much lower for sedition, which can stretch to cover a range of peaceful criticisms of the government, from its failure to enact democratic reforms to its strict COVID-19 policies.

Finally, by using the colonial-era sedition provision, the government can deflect attention away from the NSL itself, which was imposed on Hong Kong by the National People’s Congress Standing Committee in Beijing. The U.K. government in particular may find it more difficult to criticize the Hong Kong government for cracking down on basic rights, when the law in question is one that British colonial rulers themselves put on the books several decades ago.

Our data also show that the pace of national security-related arrests and prosecutions has slowed dramatically over the last three years. During the first year of NSL implementation, Hong Kong police arrested 134 individuals on national security grounds, or an average of roughly 11.2 individuals per month. That figure dipped significantly in the second year: from July 1, 2021 to June 30, 2022, the police arrested a total of 90 individuals, averaging 7.5 per month. In year three, arrest totals dropped even further, to 48 total individuals, or 4 per month. The implication is clear: having achieved its core objectives, the government is making fewer national security arrests on a month-by-month basis.

National security prosecutions show a similar downward trend, albeit from a lower base. From July 2020 to June 2021, authorities charged a total of 65 individuals with national security crimes, according to GCAL data, averaging 5.4 individuals charged per month. Charging numbers actually remained more or less constant from July 2021 to June 2022: a total of 66 individuals were charged over that 12-month period, averaging 5.5 individuals per month. Since July 2022, total charges and charges per month have plunged: from July 2022 to June 2023, just 21 individuals have been charged, a rate of 1.8 individuals charged per month.

Both arrest and charging data tell the same story: As of mid-2023, the government has less need to rely on the heavier artillery of national security criminal provisions, and can mostly use other tools—including administrative measures, public pronouncements and threats, and new legislation—to enforce and maintain effective control. When needed, criminal prosecution, primarily in the form of the sedition provision of the Crimes Ordinance, is being used to reinforce key red lines, but government officials likely hope that they will need to reach for that tool less and less often as time goes on.

Our data also tell two other important stories: First, an NSL arrest does not necessarily mean that an individual is destined for jail time. Out of 264 individuals arrested, authorities eventually charged only 148 with national security crimes, for a 56 percent charging rate. Though details remain scarce on the NSD’s handling of those cases in which individuals were not charged, it’s clear that a decision not to prosecute remains a real option in many lower-level cases. This in turn suggests that the government will forego prosecution when it believes that deterrence has been achieved by an initial arrest and detention. Yet, given the paucity of relevant journalistic reporting and academic research, we can’t be sure exactly how the NSD handles such cases or how prosecution decisions are made inside the Hong Kong government.

Finally, one data point speaks louder than any others about the impact of the new national security law regime: Three years into the national security era, the government continues to boast a 100 percent conviction rate. Of the 148 individuals who have been charged with NSL crimes, 103 have either pled guilty or have been convicted. 45 individuals either await trial or are in the middle of the judicial process, facing an all-but-certain outcome.

Notably, dozens of individuals have pled guilty to national security crimes. Hong Kong government officials would no doubt claim that this means the system is working: such guilty pleas demonstrate both the accuracy of the charges as well as the lawful authority under which they were brought. Yet, our examination of the public record in these cases suggests a very different conclusion: that many NSL defendants recognize it is impossible to get a fair trial under the NSL, and that if they plead guilty they are eligible for a one-third sentence reduction. For individuals accused of NSL crimes, a one-third sentence reduction can add up to a year or more being shaved off of a custodial sentence.

National Security Laws and the Courts: Time to Recalibrate?

The 100 percent conviction rate suggests that, thus far at least, the judiciary has not found a way to effectively deal with the enormous challenge to its independence posed by the NSL and the sedition provision. Instead of acting as a check on government and defending basic rights, the court system’s approach has been to bend to the enormous political pressure it faces, and to give the government more or less everything it wants in national security cases. Every substantive verdict has gone the government’s way, and the lion’s share of procedural rulings (bail decisions, decisions on the right to a jury trial, and so on) have been in the government’s favor as well. Simply put, the courts have not served as even a soft check on the government’s rollout of the NSL. Judges at every level have failed to mitigate the extensive damage done to human rights and the rule of law in Hong Kong.

To be sure, there are some in the judiciary whose political views align with the government. Those judges are all too happy to deliver guilty verdicts in national security cases that come before them. Others may be responding to the all-too-clear career incentives (and disincentives) that are emerging for judges who toe the line in national security cases. But many other judges—including those on the Court of Final Appeal, Hong Kong’s highest court—likely believe that any effort to even partially check the government’s national security agenda would lead to immediate moves by Beijing to curtail judicial authority and independence. In this context, the argument goes, discretion is the better part of valor: better to protect and preserve the court system’s institutional position, especially outside the national security realm, and live to fight another day.

This argument is not without merit. The courts are indeed under extreme pressure, and Beijing has clearly communicated its preferences, especially on high-profile cases. The Party expects the courts to deliver guilty verdicts in key cases, and almost certainly would receive a not-guilty verdict as a direct political challenge to its authority—a challenge that could not be tolerated.

However, this argument ignores the more than one hundred individuals put behind bars under the NSL and the sedition provision since the crackdown began. Almost all of those who have been found guilty of national security crimes were merely exercising their constitutional rights to free expression, association, and assembly. Hong Kong judges presided over these cases, and they bear some amount of moral responsibility for the lives interrupted, the freedoms lost.

As the NSL begins its fourth year on the books, Hong Kong’s judges need to ask themselves: is there truly no way to limit the damage being done by the new national security law regime? At what point does the price being paid—increasingly, by ordinary Hong Kong citizens like Alan Keung, Alex Lee, and Cannis Chan—become simply too great to justify the blank check being given to the government in each and every national security case? Has the time come for some modest assertion of judicial authority, at least in cases that are considered less politically sensitive? Are there ways to recalibrate, perhaps with procedural rulings or reduced sentencing, that might not draw Beijing’s attention and ire? In the months to come, some initial answers to these questions will emerge. One hopes that the coming year will be a better one for human rights and rule of law in Hong Kong than the last three have been.