James Pomfret and Greg Torode

HONG KONG, (Reuters) – The Hong Kong government has increased its use of a long-defunct sedition law. This is according to some democracy advocates and lawyers as it intensifies the pressure on press freedom.

Two media outlets in China-ruled Hong Kong were targeted late December by China, a sign of their renewed faith in the nation’s sedition legislation. Stand News was raided by 200 police on December 29th. Seven people were arrested and charged with conspiring for “seditious publications”.

The motives for the accusations have yet to be fully explained by authorities. But pro-Beijing media outlets Ta Kung Pao and DotDotNews listed specific Stand News articles that they deemed seditious, including interviews with local democracy activists and opposition figures – topics that until recently were not out of the ordinary in Hong Kong.

The prosecution brought a fresh charge of conspiracy against Jimmy Lai, 74 (NASDAQ:) Daily newspaper founder, along with some top executives, a day earlier.

According to three legal professionals interviewed by Reuters, the sedition charge, which is inciting rebellion or insurrection, comes from laws of colonial era that were meant to thwart dissent towards the British crown. They had never been used in Hong Kong in the past two decades, according the three law scholars. These scholars claim that the charges of sedition brought against journalists last month are the first ever since 1967.

Recent court decisions, according to legal scholars, have given authorities the authority to make use of the NSL, a controversial law on national security, imposed by Beijing in 2020 to strengthen colonial-era laws.

After sometimes violent, pro-democracy demonstrations in the city, 2019 saw the enactment of the security law. This gives police additional powers to search, seize and monitor and makes it harder for people arrested to obtain bail. The law will only be applied to cases by national security judges.

Three lawyers say that the law on sedition allows officers to direct target published media contents and doesn’t require them to prove that the speech or article was meant to offend.

Simon Young, a Professor at the University of Hong Kong’s law school said that the government was better armed to some extent. The national security law gives you an additional procedural and investigative structure to bring such charges.

Barrister who has worked in Hong Kong since 1997 when it was handed over from Britain to China said that “We can clearly see that the NSL has completely retooled these laws which were almost forgotten.” It could be said that now we drink old colonial wine in new, authoritative bottles.

When asked if the security legislation has increased the power of colonial era laws, such as sedition and other crimes of aggression to national security, the Hong Kong Department of Justice said it was not aware of any but that prosecutions of these offences were “based on admissible proof”.

“We regret the attempts to distort facts and make slanderous comments about the enforcement actions taken according to the law” a spokesperson for the government told Reuters.

Stand News was targeted for “illegal actions” and “nothing in common with freedom of expression”, he said.

These latest actions extend a media crackdown that has included the closure of Apple Daily as well as the imposition new staff guidelines for public broadcaster RTHK in order to make sure all content complies the the national security laws.

“WALKING ON EGGSHELLS”

Last week, a large-page editorial in China’s Ta Kung Pao criticised Hong Kong Journalists Association(HKJA) as well as the Foreign Correspondents’ Club (FCC), for helping organize a regional human right press award. The award honoured journalistic contributions it claimed had “smeared” Hong Kong police officers and Chinese government.

Newspapers often have precedence over enforcement actions and the paper called for authorities to investigate.

When asked if the government would investigate the FCC or the HKJA, a spokesperson for the government said that it didn’t comment on speculation. “We will keep pursuing any legal liabilities of organisations or individuals endangering national safety. We won’t stop.”

Keith Richburg (the president of FCC) and director of University of Hong Kong’s journalism school said the closing of Stand News and its arrests left “everyone walking on eggshells”. There is no way to know if Hong Kong can thrive and flourish without an independent and free press.

Ronson Chan, head of HKJA, denied the Ta Kung Pao claims and stated to Reuters that the awards process was fair and independent.

A government spokesperson told Reuters “Freedom of speech, freedom of press and expression are not absolute and may be limited for reasons including national security protection,” and that no one is “above the law.”

DIFFICULT – ENFORCE

According to legal experts, sedition is a crime that incites or encourages someone to resist or insurrect legal authority. Since the British colonial period, Hong Kong’s sedition laws have long been considered obsolete by newer statutes.

Hong Kong’s Crimes Ordinance, which covers sedition crimes, states that publishing anything can be a crime.

Although the language was harsh, academics and lawyers said that sedition crimes are difficult to enforce. Since 1997, Hong Kong has had a mini-constitution, which was the British colony of Hong Kong, that protects freedom of expression and rights.

Ten diplomats, academics and criminal lawyers interviewed by Reuters stated that their opinions had changed due to the NSL’s ability to apply its powers to old laws such as sedition.

The NSL contains provisions that refer to “endangering national safety”, and judges have found this effectively expands the law to include older laws that are related to national security such as sedition or espionage.

Two separate pre-trial cases, one involving media mogul Lai, were decided by the Court of Final Appeal. They both stated that the reference in security law to “acts that endanger national security” also included those enacted under these laws.

A District Court ruling from April also noted that sedition, an older offense, was now considered to be an indictable crime under the security laws. According to legal professionals interviewed by Reuters, this makes it a serious crime with a potential longer statute and harsher sentencing guidelines.

In the past the offense of sedition was classified in a summary offence. It would have been handled solely by a magistrate from a lower court without any jury.

Although the enforcement power of the government has been increased, it is still necessary to fully test the grounds on which journalists were arrested and media organizations charged in Hong Kong. Lawyers, scholars, diplomats, and lawyers point out that this includes the Court of Final Appeal.

Trois criminal barristers stated that certain exceptions to the sedition laws, which authorities now claim were written in long-term, provided good ammunition for defense counsel.

According to the Crimes Ordinance, it isn’t seditious, among other things, to prove that the sovereign has been “misled or mistaken” in any (its) actions or point out “matters that are producing… feelings of ill will or animosity between different classes within the population of Hong Kong”.