Chow Hang-tung's Closing Statement in Her Trial for "Inciting Subversion"
Delivered in court on May 19
This is part of the Hong Kong Voices series which presents the voices of people in Hong Kong who are persecuted. It’s meant to give people in the rest of the world a chance to listen to them directly. A full list of the posts in the series can be found here.
On May 18, 2026, after a hiatus of several weeks, the trial of Chow Hang-tung and Lee Cheuk-yan on charges of “inciting subversion of state power” under the 2020 national security law imposed by the Chinese Communist Party entered its closing stages, with the prosecution delivering its closing argument followed by Lee Cheuk-yan’s lawyer.
Chow Hang-tung gave her closing argument the following day, on May 19.
What originally appeared here had been pieced together from several sources, but on June 3, Chow Hang-tung’s social media account released an “official” closing submission, which appears below and supersedes what previously appeared here. The closing submission was published in both Chinese and English. Her social media team asked people to share it with the people of Hong Kong and the international community.
Chow Hang-tung filed a 200-page written submission with the court. Below is the English-language version of the much shorter oral arguments that she delivered in court. For the Chinese-language version, please go to the link above.
Closing arguments were completed on May 19, and the panel of three judges designated under the national security law said they hoped to deliver a verdict by “mid or late July.”
It remains the case that Chow Hang-tung is one of the few political prisoners in Hong Kong who continues to speak out without compromise for the values of democracy, freedom and human rights embodied in the Hong Kong pro-democracy movement.
Translations of a previous statement by Hang-tung in her trial and her testimony when she took the stand have also been published on this site.
Chow Hang Tung’s Closing Submissions (Oral)
I. Introduction
1. As a criminal case, this is indeed a weird one. The defence has made no dispute over what happened and has even proactively put forward a great deal of additional evidence as to what the defendant actually did. The defendant never denied any of our actions, nor have we ever claimed that what we said reflected not our true thoughts or was merely some kind of exaggerated rhetoric. We even explicitly stated that we never just talked the talk; we did put our words and beliefs into practice.
2. Common defence strategies in criminal cases, such as downplaying the alleged conduct and distancing oneself from the events, were entirely absent in this case. Quite the opposite, the defendant embraced the conduct the prosecution labelled as criminal, to the extent that the defendant did not mind even when the court used wordings that sounded more radical. For insofar as the substance is there, the choice of words is simply a peripheral detail.
3. The court can see that the crux of contention in this case is not what the defendant did or was thinking, but what the law seeks to prohibit and what it seeks to protect. And to answer this question, we cannot stop at a superficial comparison of wordings but must instead ask what system the defendant was seeking to end, and what system the Constitution was to establish.
4. The real core issue is whether the law truly forbids us from pursuing a democratic transition and defends the Communist Party’s perpetual rule. When dictatorship truly exists, does the law forbid us from calling a dictatorship as it is and prevent us from ending a regime that can abuse its power and kill with impunity?!
II. The meaning of Ending One-Party Dictatorship
5. After all, the goal for ‘ending one-party dictatorship’ is to end the state of unchecked power. This is the most important reason for the rule of law to exist, and this is also the obligation that every court in the world should observe. It is impossible for a court to criminalise such a phrase and at the same time claim itself still believe in the rule of law.
6. The court could, of course, argue that when the defendant uttered the words ‘ending one-party dictatorship’, they weren’t referring to ending one-party dictatorship but to something that was entirely unrelated to those words. Leaving aside whether there’s any evidence for that, the point is the court cannot rule that the phrase itself is unlawful, implies subversion or forbidding anyone to genuinely pursuing such a goal without simultaneously negating its own mandate.
7. The court must recognise that the key word in that phrase – dictatorship - is not a hollow sign or a term invented simply to provoke emotion. It has its own substance. To avoid confronting the meaning of ‘dictatorship’ and ‘ending one-party dictatorship’ but treat them merely as the markers of a crime, the court may all too easily deny some fundamental principles of the rule of law.
III. The Nature of the Constitution
8. The court must address not only the meaning of ‘ending one-party dictatorship’, but also the true nature of the Constitutional order. Only then can a meaningful comparison be made between the two, rather than just nitpicking over words. More than the defendant’s purpose, it is the Constitution’s own meaning that has remained the most uncertain, least supported, and least consensual issue in this case.
9. The purpose of a document that can be properly called a constitution is to regulate the exercise of public power. It is used to restrain power and not the ordinary people. In other words, a constitution is a tool developed by human society to end all forms of despotism. Hence, the constitution and the end of one-party dictatorship are by no means in conflict, rather, they are in a symbiotic relationship.
10. If ending dictatorship is the very purpose of a constitution, how can it be spun to become unconstitutional if not by arguing that China’s Constitution is not a proper constitution, but a sham that serves dictatorship? This then will explain why it not only fails to limit the Communist Party’s power but instead entrenches its perpetual rule. As a result, the Chinese Constitution not only fails to protect citizens from abuse of power, but also shields power from citizens’ accountability.
11. The above is substantially the prosecution’s argument and the basis for this prosecution. Put simply, the prosecution argues that the system established by the Constitution is not constitutionalism or the rule of law, but one in which the Communist Party monopolises power and directs everything, that is to say, a textbook one-party dictatorship. Even if the prosecution void using that term does not alter the substance of its argument. A rose won’t become a chrysanthemum just because you refuse to call it a rose. In its closing submission, the prosecution betrays itself by asserting that precisely because the defendant genuinely seeks democracy, they must therefore overthrow the constitution’s fundamental system. Doesn’t that amount to admitting that the constitution’s fundamental system is an undemocratic, authoritarian regime?
12. This brings us to the second oddity in this case. The prosecution says we are wrong to call China a one-party dictatorship – it is a smear, while at the same time it argues vigorously and consistently that the Constitution establishes exactly that. Throughout the trial, it has been the prosecution, not the defence, that has denigrated the Constitution by insisting it necessarily mandates one-party dictatorship. By contrast, the defence has persistently informed the court that this is not the Constitution’s only possible reading. In fact, the court can interpret the Constitution in a way that accords with the principles of the rule of law and democracy, rather than unduly rendering it into a bizarre monstrosity that completely in breach of the constitutional principles.
13. After all, how much basis does the prosecution have for saying that the Constitution is the interpretation that gave the Communist Party supreme power? It relies almost entirely on a single sentence added into the Constitution just a few years back: ‘The leadership of the Communist Party of China is the defining feature of socialism with Chinese characteristics’. But does that sentence explain what ‘leadership’ means? It does not. Does any provision of the Constitution define the scope of that leadership, what the Party may decide, what it may not interfere with, or the procedures for exercising such power? No. None at all. Throughout the entire Constitution, the only description of the Communist Party’s powers -- or possible powers -- is the single word ‘leadership’.
14. ‘Leadership’ has never been synonymous with real power or the right to govern. Charles III, for example, is the head of state for the United Kingdom, yet he holds no substantial political power. On what basis, then, can the prosecution argue that the mere word ‘leadership’ in the Constitution gives the Communist Party carte blanche to rule the entire country, override every state organ established by the Constitution, and remain perpetually unaccountable to the people?
15. For example, the Constitution expressly provides that the President of the State is elected by the NPC (Article 62). But if the Communist Party has pre-determined the outcome backstage before it ‘leads’ the NPC to conduct the election, then it is the Communist Party, not the NPC, who is in the driver’s seat for the election. In fact, the NPC also has the power to remove the President from office (Article 63). But if the NPC is subject to Party leadership and cannot act without Party consent, then that constitutional power of removal is nothing but a dead letter.
16. And the problem is not confined to the NPC. It implicates all constitutional organs. The Constitution expressly states that the people’s courts (Article 131) and the people’s procuratorates (Article 136) exercise judicial and prosecutorial power independently. But if decisions about whom to prosecute and how to judge are ultimately dictated by the Party, then what is the point of talking about an independent judiciary or procuratorate?
17. Most dangerous of all is the principle that the Party commands the gun—that the military must take after the Party and owe loyalty to it. We have heard this constantly in official propaganda, but this directive is utterly unconstitutional. The Constitution explicitly states that the national armed forces belong to the people (Article 29), and it is the NPC, which is elected by the people, that the CMC should answer to. (Article 94) Any armed forces that can be called a national army must owe its allegiance to the state, the Constitution and the people, and not to a single party. It is precisely because the Party has taken control of the gun and monopolised overwhelming force that the Constitution and the law stripped of any real power and reduced to mere window dressing. That explains how the June 4th massacre transpired.
18. In fact, the prosecution’s claim that the Party’s leadership overrides everything is not grounded in any specific constitutional provision. It just sadly reflects the country’s political reality, a reality that has existed for many years before the clause on ‘Party leadership’ was added to the Constitution. Can it therefore be argued that, when the Constitution was amended, the drafters were simply codifying the existing reality and the powers the Communist Party had already assumed? Given constitutional violation is an established fact, does that mean that such a fact should be allowed to define our law?
19. In this regard, the Korean case I referred to in my submission is directly relevant, as it is about how a court should respond when constitutional ideals diverge from the realities of political power.
The case arose from the 5.18 Gwangju Democratic Uprising, which occurred 46 years ago today. Like the Tiananmen Square protests, it involved the military killing civilians and imprisoning many others, but the killers remained in power. The difference, however, was that South Korea later underwent a democratic transition, and the perpetrators were eventually brought to justice. At the time, the defence argued that because they had seized power, rewritten the constitution, and governed under the new constitutional order, their authority must necessarily be constitutional. How, then, could they be accused of subverting the constitution? The Supreme Court rejected that argument. It held that, whatever amendments may be made, a constitution remains, by its very nature, a legal order grounded in popular sovereignty, liberal democracy, human rights, and the rule of law. Such an order can never legitimise a military dictatorship established in breach of democratic procedures. In that context, it was the usurpers - those who assumed that power itself could define the law, who truly subverted the constitution, not the citizens of Gwangju, who resisted martial law and defended its spirit.
20. This judgment shows that holding power does not necessarily confer authority over the meaning of the law. If a constitution is truly to merit that name, it cannot be reduced to the victor’s arbitrary command. It must embody its own coherent and enduring principles and spirit, regardless of whether such principles are respected by those in power.
21. In the context of the Chinese Constitution, the essential question is: what is its core spirit? Is it democracy and the rule of law, or dictatorship and rule by man? If it is the former, then the true subverter of the Constitution’s fundamental order is not the defendant, but the Chinese Communist Party, which has long disregarded democratic procedures, monopolised state power, and even sought to legitimise its dictatorship through constitutional amendment. Only if the court accepts the opposite - that the Chinese Constitution is, at its core, a constitution of dictatorship, and that its references to democracy and the rule of law are solely decorative, incapable of displacing the overriding principle of one-party dictatorship - would there be any basis for this case to proceed.
IV. Overthrow, Destroy
22. Even if we assume that the Constitution establishes a one-party dictatorship under the Communist Party’s perpetual rule, and thereby, the defendant’s objective is to fundamentally challenge or even to negate that framework, does that then mean the prosecution has already proved the case? Of course not. For what the prosecution must establish is not the conflict between two theories. Rather, it must prove all the elements of the offence in a concrete and tangible way. Merely stating an ultimate, long-term objective actually proves nothing. In my written submission, I have provided a detailed analysis of each element. Here, I wish to focus on just three of the most significant issues:
(1) Overthrow, destroy;
(2) Unlawful means;
(3) Natural and reasonable consequences.
23. The prosecution has never explained what kind of conduct amounts to ‘overthrow/ destroy’. Instead, it repeatedly refers to ‘ending’ and, out of nowhere, treats the two as equivalent.
Even a cursory look at the dictionary shows that ‘ending’ is not the same as overthrowing’ or ‘destroying’. A restaurant’s closure does not mean someone has overthrown or destroyed it.
24. Let’s first focus on the term ‘overthrowing’. The key difference between it and ‘ending’ is that it concerns the mode of change, rather than the outcome of it. If the prosecution has made no allegation or explanation regarding ‘mode’, the notion of ‘overthrowing’ simply cannot stand.
25. For ‘overthrow’ to be applicable, the defence proposes that the conditions of the following five dimensions must be met:
(1) The object of the effect
(2) The degree of change
(3) The speed of the change
(4) The identity of the actor
(5) The nature of the act
26. Regarding the object, the term ‘overthrow’ cannot be applied to just any object. For example, you may say ending a journey, a relationship, a life, or an organisation, just like how the government disbanded the Hong Kong Alliance. But you wouldn’t use ‘overthrow’ in these situations. When is ‘overthrow’ the right term to use? One might overthrow a monarchy, a board of directors, or the orthodox status of a doctrine, for instances. It is clear that the object of ‘to overthrow’ generally refers to some system or order, or a position or a status within a particular order. Therefore, while ‘to overthrow the fundamental system of the constitution’ is, of course, a suitable usage, ‘to overthrow communism’ is less appropriate, or at least an incomplete expression. What is implicitly omitted is the ‘status within a certain order’, and it is a prerequisite for using the term that this order is clearly defined. Therefore, the prosecution’s reference to the phrase ‘ending the Communist Party’ every now and then, is, in fact, a completely different matter from ‘overthrowing the Communist Party’s status within a certain order’.
27. The second point is a question of the degree of change. ‘Overthrow’ implies a thorough, drastic change and cannot be used to describe minor adjustments or a situation where the substance remains the same. For instance, if a junta changes its military titles and the like from ‘General’ etc to those of a civilian government, but with the same people remaining in power, then despite the seemingly significant changes, nothing has actually been overthrown. In the current case, the importance of this point lies in how one understands what the prosecution says is our objective, namely, ‘to end the Communist Party’s leadership position under the Constitution’. It is undisputed that this objective could be achieved by amending the Constitution – by simply deleting the phrase ‘the leadership of the Communist Party’ in Article 1. But even if that were to happen, would it really bring about any dramatic or fundamental change? It wouldn’t. It would just be a return to the situation before 2018, but with no real, substantive change whatsoever. For the one-party dictatorship isn’t endorsed and maintained by law in the first place – to simply change its legal status wouldn’t result in anything being actually ‘overthrown’.
28. The third dimension is the speed of change. ‘Overthrow’ something implies that it happens quickly, an almost an one-off act. The term cannot be used to describe gradual evolution, long-term strategic interaction, or actions that merely create favourable conditions. I think it’s rather uncontroversial for ‘overthrow’ to have such a level of meaning. So, in the case at hand, although it is entirely possible that after a long period of accumulation, the kinds of work much focused on by the Hong Kong Alliance, that of human rights education, democratic enlightenment, the cultivation of civil society and so forth, can indeed change a society’s norms and ethos with impact. But these are gradual and cumulative changes that, like dripping water hollowing a stone, have absolutely nothing to do with the concept of ‘overthrow’
29. The fourth dimension is the actor’s identity. ‘Overthrow’ implies a change brought about by an external force, where the object is passive and compelled. For example, if a king were to abdicate of his own accord or abolish the monarchy himself, one would not call it ‘overthrow’. In other words, a decision made by the highest authority within a given order is not ‘overthrow’. In a system where sovereignty rests with the people, and if the people decide to amend the constitution from a parliamentary to a presidential system, that is merely a change of system and not an act of ‘overthrow’. However, if the mechanism for expressing the will of the people is held and manipulated by a minority, like in the case where the military seizes power and directs the parliament to amend the constitution and to abolish elections, then it can certainly be said that an external force (the military) has overthrown the original system.
30. This is precisely the crux of the matter. If the Constitution truly establishes a system of sovereignty by the people, then whatever changes the people wish to make, or whoever they choose to lead, would not amount to overthrowing that system. But if the Constitution’s supreme authority lies not with the people but with the Communist Party, then the people can indeed act as the ‘external force’ to overthrow the system run by the Communist Party. Hence, whether ‘overthrow’ can be applied depends on who the court considers to be the supreme decision-maker established by the Constitution, and how that decision-maker can arrive at its own decision.
31. The last dimension concerns the nature of the act. The changes implicated by overthrow entail certain abnormality. Say, voters casting their ballots to end a president’s leadership would not be called an ‘overthrow’. Abnormal acts are not confined to their most obvious forms, such as using force to coerce. They also include, for instance, the spread of false information. Hiring trolls to manipulate public opinion to oust an elected leader could as well fall under this category.
32. I’d describe this requirement about the nature of the act as a rather weak one, because it depends on how you define the ‘normal’ rules of the original order. For example, we noted just now that using force is abnormal. But if the order in question is a boxing rankings system, then using force to knock down the former champion is simply a legitimate replacement, not a overthrow. Take another instance, why can ‘overthrow’ be always applicable in the cases of People’s Power or colour revolutions? It’s because in such cases, people’s voice has no power to influence politics under the original order. So, when the people suddenly gain the ability to decide who should hold power, and are collectively capable of toppling a dictator, the situation would be deemed abnormal, even though this could be perfectly normal in a democratic society. But when the situation is described as people ‘overthrowing’ the original ruler, it implies that the previous order could not have been a democratic one.
33. To summarise these five conditions for ‘overthrow’ in one sentence:
‘An external force, in an abnormal manner, rapidly and drastically alters an order or the position within it.’
34. The term ‘destroy’ is similar to ‘overthrow’ in its being a term that also invokes the concept of mode and means and not just the result. Their difference, however, is that it lacks the sense of bottoming out and speed while having a much broader scope of application. It is perfectly understandable to speak of ‘destroying the Communist Party’, and it is semantically plausible to even speak of the destruction of oneself. Hence, the emphasis of ‘destroy’ is entirely on the nature of the act. It carries a stronger sense of malice. It implies something unfair, unreasonable, and contrary to public order and decency -- something the actor has no right to do. If one also refers to the English translation of the National Security Law, which uses the term ‘undermine’, it further conveys a sense of acting covertly and cunningly.
35. If, for instance, I go to a restaurant and find a cockroach in my food, and I write an online review that causes the restaurant to go out of business, that wouldn’t be considered ‘destroying’. For I’m simply stating a fact and doing something that is entirely sensible and reasonable as a customer. It is something within my rights to do. But, if after finding the cockroach, I was deeply disgruntled and hired the triads to cause trouble, then that could, of course, be considered an act of ‘destruction’.
36. In the current case, the defendant has consistently emphasised that the Hong Kong Alliance only talked about the facts and the evidence with reasoning which were entirely fair and reasonable practices. What we did constitutes the exercise of our rights as citizens. Even if these actions compromised the effectiveness of the Communist Party’s leadership, they do not fall under the description of ‘destroy’.
V. Unlawful Means
37. The allegation of ‘unlawful means’ is more absurd. Even at the close of case, the prosecution still cannot say what this unwarranted charge of unlawful means is nor can they produce a single example. At most, it argued that the Hong Kong Alliance had ‘not referred to any lawful means, such as amending the Constitution in accordance with its provisions, for “ending one party dictatorship”’ (§ 60(11)). It went further to claim that in this case, the evidence has ‘excluded’ any lawful means to such an end (§ 13(5)).
38. Let’s first leave aside the prosecution’s sophistry, which both reverses the burden of proof and defies logic. What if I tell a restaurant to shut down without stressing to its owner the need to follow through legal procedures, am I then inciting him for an unlawful closure? And if only the owner has the legal power to close the restaurant, does my negative review as a customer, which causes the business to fail, thereby becomes the ‘unlawful means’?
39. ‘Not calling for a constitutional amendment by lawful means’ and ‘calling for unconstitutional means to end one-party dictatorship’ are two propositions worlds apart. Neither is equivalent to any part of the other. By and large, the prosecution’s argument commits five major logical fallacies.
(1) One cannot prove what the defendant did by pointing to what he did not do. Furthermore, the prosecution has never managed to prove what the defendant had not done. Over the past thirty-odd years, has any hazard occurred as a result of any of our words? None, right?
(2) The prosecution’s identification of one lawful means does not render all other means unlawful. By putting it this way, the prosecution is to reverse the principle that ‘whatever is not prohibited is permitted’.
(3) Vaguely calling a means ‘unlawful’ does not mean it is instinctively ‘unconstitutional’. In this case, the prosecution must prove ‘unconstitutionality’ instead of simply alleging a violation of an unspecified law.
(4) The absence of a lawful means to attain a given goal does not imply the existence of an unlawful one. A more plausible conclusion instead is there is currently no means, lawful or unlawful, to that end. The prosecution has never proved the existence of any unlawful means in this world capable of ‘ending one-party dictatorship’, not even contending the theoretical probability of such an existence. By contrast, the defence has explained that ending one-party dictatorship means subjecting power to legal constraints. By definition, that can be done only through the rule of law. No unlawful means can bring it about. Up to now, the prosecution has not challenged this part of the testimony.
(5) In fact, the Constitutional amendment much emphasised by the prosecution will not lead to the end of one-party dictatorship. Hence, to describe it as the only ‘lawful means’ is a false premise. Did one-party dictatorship not already exist before the insertion of that clause into the Constitution? It did, of course. And will reverting the Constitution now end it? Don’t be silly. So, amending the Constitution is just like holding rallies, drafting human rights and organising forums, etc. They can at most advance that goal of ending one-party dictatorship, but none can directly achieve it. There are countless lawful ways to work toward ending one-party dictatorship, the vast majority of which cannot plausibly be called unlawful, still less ‘unconstitutional’, just like the aforementioned rallies and petitions. So even if the prosecution could exclude the constitutional amendment, it could not exclude every other lawful means. The evidence, moreover, has clearly shown that the Hong Kong Alliance did advocate a range of lawful means to end one-party dictatorship. Where’s the exclusion?
40. After all, ‘ending one-party dictatorship’ is a matter of making the law effective. It is never a goal that can be achieved simply by amending laws or the Constitution. That is why the Hong Kong Alliance never limited its demands to mere legal amendments by the government. It also called for measures to ensure the law is enforced in practice, including the establishment of oversight mechanisms, accountability, and external scrutiny. The best safeguard, of course, is having genuine, free and fair elections together with an independent and vibrant civil society. To focus on whether we called for Constitutional amendments, or whether such amendments are possible in the current prosecution, is therefore to miss the point entirely
VI. Contravening the Constitution
41. On the element of ‘unlawful means’, as I just noted, the prosecution can’t just flippantly claim your means were unlawful. They must prove the existence of a specific ‘constitutionally unlawful means’. This also brings to light the third oddity of the case: I’ve only ever heard of citizens suing a government for unconstitutionality, but never a government suing citizens for unconstitutionality. The DOJ is indeed a world first in doing so.
42. Innovative as it might seem, legally, there remain 3 insurmountable problems in the prosecution’s case.
(1) A breach of the Constitution, particularly Article 1, cannot in principle amount to an ‘unlawful means’ under NSL22;
(2) An ordinary person cannot violate the Constitution;
(3) The prosecution’s claim that ‘any act aimed at ending one-party dictatorship must necessarily violate the Constitution’ is entirely a thought-crime logic.
43. First, the Chinese Constitution does not apply directly in full in Hong Kong. It takes effect necessarily through local legislation. I think both the prosecution and defence agree on this. This is also fundamental to ‘One Country, Two Systems’, and there should be no dispute about it.
It follows that, in Hong Kong, ‘contravening the Constitution’ alone cannot constitute a separate allegation of ‘unlawfulness’. Such an allegation can only be established indirectly through a specific Hong Kong law that is violated. But if the prosecution identifies a Hong Kong law that has allegedly been breached, citing that law as the basis for ‘unlawful means’ is sufficient. Any extra reliance on acts that ‘contravene the Constitution’ is redundant.
44. In this case, can the prosecu0on point to a single piece of Hong Kong legislation that gives effect to Article 1 of the Constitution? Yes, that’s NSL22.
45. It follows that on ‘unlawful means’, the prosecution’s case is the defendant is accused of violating NSL22 by means of violating the NSL22. Such a claim is laughable on its face. In fact, the prosecution is trying to invoke some seemingly different wordings, i.e. ‘contravening the Constitution’, to disguise their circular reasoning. From the outset, the prosecution has had no case on the issue of ‘unlawful means’ independent of the alleged result of the act. Such an approach -- namely, to dress up a superior statute as an independent legal basis and then shoehorn the elements of the offence from a subordinate statute back into it -- truly amounts to subverting the fundamental order of the constitution, and even the basic principles of legal operation.
46. The second point is about who can violate the Constitution. If the court accepts the prosecution’s use of ‘contravening the Constitution’ as a basis to establish its case on ‘unlawful means’ under NSL22, it will only make the prosecution’s case even more difficult. For the Constitution is a law that regulates special subjects. It can only bind public power, not the acts of individual persons. The allegation is as absurd as saying, we have incited a woman to violate the rule that bars men from entering it.
47. You may as well say that someone has breached the legislation enacted to implement the Constitution, such as NSL22. But then it doesn’t make sense to claim that someone has directly violated the Constitution. This reflects the hierarchy and function of the constitution. The constitution establishes various state organs, including the legislature. If the government wants to turn the constitution’s overarching principles into legal obligations that can be imposed on everyone, it must go through the proper legislative process, meeting all procedural, endorsement and human rights requirements, before a ‘law’ can emerge that ordinary people can literally breach.
48. When is an accusation of ‘contravening the Constitution’ applicable? It can be when a citizen does something the government deems improper, and the government responds with its public authority, such as arresting, seizing or penalising. Only then does one have the opportunity to ask whether the exercise of that public authority was unconstitutional, say, a breach of human rights protections, a lack of legal authorisation, or the law the government is relying on is itself unconstitutional. But this is not to take place at the beginning of the process, where a citizen has simply done something the government doesn’t like, which involves no exercise of public power and doesn’t breach any specific law, be it civil or criminal, and the government hastily jumps to the conclusion that, ‘Ah, you have violated the constitution, so, your acts are unlawful.’ This is exactly the situation of this case. Because the prosecution can’t identify any specific legal provision that the defendant has allegedly incited others to violate, it is resorting to invoking some vague, overarching constitutional principle. That approach is truly unconstitutional; it’s a complete violation of the constitutional framework and its delegated powers.
49. Thirdly, if the court accepts that ‘contravening the constitution’ can be an unlawful means under NSL22, then it must provide a precise standard for what constitutes the ‘contravening of the constitution’. On the question of how to determine whether a certain act is unconstitutional, the prosecution still maintains in its closing submission that ‘any act aims at ending one-party dictatorship’ amounted to contravening the Constitution. （Prosecution’s closing submission § 69）
Setting aside the fact that this argument is merely a rehash of premise 1, which the court has already rejected, and even if we specifically make constitutional amendment an exception, it does not follow that any other acts aimed at ending one-party dictatorship are unconstitutional. What counts as an act aimed at that objective? The defendant candidly accepted in their evidence that everything the Hong Kong Alliance did was directed toward its five operational goals, including ending one-party dictatorship. On the prosecution’s logic, therefore, every act of the Alliance, that of holding rallies, raising funds, publishing materials, or even convening a general meeting etc., would all become unconstitutional. That is utterly thought-crime reasoning which, moreover, judges legality by long-term motive.
According to the prosecution’s interpretation of ‘unconstitutional’, I am already violating the Constitution, for I am still pursuing this case with the aim of ending one-party dictatorship. So, why don’t the national security authorities just come and seize me?
50. In fact, if we compare how the Hong Kong courts generally handle ‘constitutional’ lawsuits, we can see how naïve the prosecution’s argument is. By ‘unconstitutional’ here, I’m referring to Hong Kong’s mini constitution, the Basic Law. In Hong Kong, proving that a government act is ‘unconstitutional’ is by no means simple. One has to pass numerous legal tests -- proportionality, legality and so on, and take into account all the specific circumstances surrounding the act before one can conclude whether it is ‘unconstitutional’.
51. If determining whether Hong Kong’s mini-constitution has been breached requires such extensive and rigorous legal scrutiny, how could a violation of the country’s main Constitution be treated as a wishy-washy matter? It makes no sense to ignore the act in question and its surrounding circumstances, but only to focus entirely on the actor’s motive and call it a day. If the Chinese Constitution can be so easily ‘contravened’, it only proves that it is not a proper ‘law’ at all.
52. The fact that the prosecution can propose such an utterly absurd standard for determining whether an act is ‘unconstitutional’ further proves that unconstitutionality is entirely unsound as an ‘unlawful means’ under NSL22. The court fundamentally lacks the necessary legal resources to decide when such a charge would be valid. For ordinary Hong Kong citizens, it is virtually impossible to foresee when their actions might be deemed unconstitutional. Even lawyers lack this certainty. After all, how could Hong Kong lawyers be expected to master Chinese Constitutional law? To assert that the acts of Hong Kong citizens can be ‘unconstitutional’ in this manner is to impose on all of us an impossibly vague and completely inaccessible ‘law’, which in itself constitutes a direct infringement of the rule of law.
VII. Natural and Reasonable Consequences
53. Even if the prosecution can overcome all the legal obstacles already identified, the court must still be satisfied, as a matter of fact, that the alleged effects of the incitement were the natural and reasonable consequences of the defendant’s words and deeds. Without that safeguard of reasonableness, the law of incitement would stifle freedom of speech and the exchange of ideas, because almost any expression of opinion could be labelled incitement.
54. The defence must also stress that what the words mean in themselves and what effect uttering them in a particular context will have are two entirely different matters. The prosecution, however, has consistently conflated the two.
55. It is apparent that the more abstract the level of the phrase, or the lower its weight in a given context, the greater the disparity between its meaning and its effect can be.
One may argue, for instance, that the Constitution is a prime example of a text filled with abstract ideals. The Preamble notes that the state shall ‘support oppressed peoples... in their just struggles... to win and safeguard their independence.’ A literal reading of these words reveals that they are indeed quite stirring and could be interpreted to endorse independence movements in Tibet and Xinjiang -- not only supporting them but also ‘struggling’ alongside. Moreover, the word ‘struggle’ could easily be construed to imply armed resistance. Does it follow, then, that because the Constitution contains this language, it is inciting Tibetan independence and armed rebellion? Of course not, and the reason is simple: meaning does not equate to effect.
56. Let’s get back to our case. If, for example, I set up a street stall to invite people to the June 4th rally and mentioned the words ‘ending one-party dictatorship’, the natural and reasonable effect of the event or speech would not suddenly shift from ‘encouraging attendance at the rally’ to ‘encouraging some unidentified act said to be unconstitutional and capable of ending one-party dictatorship’. The citizens are not robots that automatically react to those words with some pre-set prompts and ignore the overall meaning and purpose of the entire speech. To define the natural and reasonable consequences of the defendant’s words and deeds solely by reference to the supposed meaning of ‘ending one-party dictatorship’ is in itself extremely unnatural and unreasonable.
57. Moreover, the prosecution’s account of the alleged effects of the so-called incitement in this case is in itself highly unnatural. What, exactly, is the defendant said to have incited others to do? ‘Ending one-party dictatorship by unconstitutional means’. Even if I were to say that plainly to those attending here today: ‘Hi everyone, go and use unconstitutional means to end one-party dictatorship’, I could tell all will be completely baffled, because no one would know what act I was urging them to commit. How can an alleged incitement that no one can understand be described as natural or reasonable?
58. In fact, the court need not rely on some vague descriptions or speculation to assess the effect of the phrase ‘ending one-party dictatorship’ on those who received it. The Hong Kong Alliance, with its history of over 30 years, has provided the strongest evidence. It had been the one most directly and persistently incited by the phrase. Yet, in its pursuit of such a goal throughout all these years, what actions or means had it used that could possibly be described as an ‘unlawful means’ or as an ‘unconstitutional’ act? None. The prosecution cannot name even one. If even the group most committed to that ideal, which was backed up with organisation and resources, never resorted to any supposed ‘unlawful means’, on what basis can the prosecution say that inciting others to use such means is the natural and reasonable consequence of the phrase? What is so ‘natural’ about that?
59. Beyond the objective evidence already discussed, the court’s main consideration in deciding whether the alleged effect of an incitement is reasonable must be the protection of human rights.
60. In a society that respects freedom of speech and public participation, criticism of government actions, exposure of injustice, advocacy for political reform, and calls to civic action are all perfectly normal and necessary forms of expression. Furthermore, no reasonable person would simplistically interpret such remarks as ‘oh, he’s definitely saying this to incite me into doing something unlawful’, unless they are prone to paranoia.
61. But of course, governments around the world -- and I’m not referring specifically to the Hong Kong government -- have always been a hotbed of paranoid delusions. They always see some dangerous threat in perfectly ordinary civic actions. And even when they know there’s no threat, governments have every incentive to nip any voices that are unfavourable to them in the bud. Such censorship often cannot be avoided, even in democratic countries.
62. Therefore, in countries where human rights are respected, the courts will be extremely wary of the government’s over-interpretation of speech. Here I would also like to draw the court’s attention to the Supreme Court of Canada’s judgment in the Keegstra case, a hate speech case in which Justice McLachlin conducted a detailed philosophical examination of freedom of expression, which this court may wish to refer to (§§ 168 to 179). I would particularly like to highlight paragraph 178, in which Justice cites Professor Schauer’s analysis: [1]
‘Schauer points out that throughout history, attempts to restrict expression have accounted for a disproportionate share of governmental blunders -- from the condemnation of Galileo for suggesting the earth is round to the suppression as “obscene” of many great works of art. Professor Schauer explains this peculiar inability of censoring governments to avoid mistakes by the fact that, in limiting expression, governments often act as judge in their own cause. They have an interest in stilling criticism of themselves, or even in enhancing their own popularity by silencing unpopular expression. This motive may render them unable to carefully weigh the advantages and disadvantages of suppression in many instances. That is not to say that it is always illegitimate for government to curtail expression, but government attempts to do so must prima facie be viewed with suspicion.’
63. The prohibition on declaring Earth round, as noted in the judgement above, was already abandoned centuries ago, and remains today as nothing more than a historical absurdity. But, woefully, as we are forbidden to call a dictatorship a dictatorship, we find ourselves facing a modern parallel. Does the court really wish to repeat such a foolish mistake?
64. The essence of the speech implicated in this case centers on ‘power oversight’ -- holding those who abuse power and breach the law accountable for their deeds. Such speech is inherently unpopular with the government. While the court may refrain from adjudicating the merits of the underlying events, including the June 4th massacre, it cannot ignore the ulterior motives of the government as a party involved in this case, nor its boundless and manipulative interpretations of speech. If the court fails to carefully delineate what constitutes the ‘natural and reasonable consequences’ of a statement, it risks becoming an accomplice to the impunity of state power that enables the Chinese government’s endless evasion of accountability for the June 4th massacre.
VIII. Conclusion
65. Here are the three oddities I have identified in this case: first, the defence openly embraces the conduct said to be criminal; second, the prosecution slanders the Constitution as an instrument of dictatorship; and third, ordinary citizens become those who breach the Constitution. Indeed, all three point to the same underlying problem: in this case, the standards of right and wrong have been completely reversed. Telling the truth is recast as inciting hatred, seeking justice as exploiting suffering, limiting power as violating the Constitution, and returning power to the people as subverting the state.
66. The key phrase in this case, ‘ending one-party dictatorship’, is by nature a call or the rule of law. It seeks to end a state in which the Party stands above the law and to restore our inherent rights, including that of democracy, which, as they are, should be the very mission of the law and the courts, and shouldn’t have been put on the dock in the first place.
67. The language and analytical framework of criminal law rest on a basic premise that the criminal justice system is designed to address wrongdoing. When something undesirable -- killings, property lost, assaults or robberies etc. -- occur, the law will have to step in to decide whether anyone should be held responsible. And because of this premise that something bad has occurred, the usual defence is to distance oneself from it - no, I didn’t do it, I don’t know, I didn’t intend it and so forth.
68. The very anomaly of this case demonstrates to the court that the foundational premise for applying criminal law, namely, that a wrongdoing has occurred, is entirely absent. The court is being asked to prohibit and penalise actions that society and the law ought to encourage, actions that represent the core values of Hong Kong, as well as the consensus and ideals built up over generations. The defendants, therefore, cannot distance themselves from these actions. If the law were to rigidly punish that which is legitimate, it would only distort its own principles and undermine its own values.
69. What we are facing is precisely an attempt by those in power to weaponise the law, to redefine right and wrong for society, forcing everyone to abandon democratic values, and compelling them to embrace a dictatorship.
70. The defendant’s response is clear: we will not let power define right and wrong, nor will we follow orders from above to defeat our former selves. No matter how omnipotent the Communist Party’s leadership may be, it cannot dictate our conscience. We know exactly what we want: to end one-party dictatorship, bring about a democratic transition, and effect a change of regime. No matter how the prosecution tries to portray this as criminal with its rhetoric, our position remains unchanged, as does our judgment of right and wrong.
71. The only thing that remains unclear is how the law will respond to this situation—whether it is willing to become a tool of the dictatorship to reshape social values, explicitly abandon democratic principles, and safeguard the Communist Party’s perpetual rule. When a dictatorship is a reality, the law cannot have two minds. Sooner or later, it must confront the fundamental incompatibility between the rule of law and authoritarianism, declaring whether it stands with democratic principles or with the will of power. Right now, this very lawsuit, brought forth by the prosecution, is driving the court into that exact corner.
72. Hence, rather than a test for the defendant, this prosecution is a trial of the law itself. We hope the court will make the right choice, upholding the dignity and fundamental principles of the law in an age of collapsing values.
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