Chow Hang-tung's Statement in Her Trial for "Inciting Subversion"
Rebutting key allegations in the prosecution's case, the speech is also historically significant
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.
The trial of Chow Hang-tung, Lee Cheuk-yan and Hong Kong Alliance in Support of Patriotic Democratic Movements in China for “inciting subversion of state power” under the National Security Law is currently on-going in Hong Kong. A fourth defendant, Albert Ho, plead guilty at the start of the trial. Chow, Lee and Ho were all leaders of the now-defunct Hong Kong Alliance, which organized the annual candlelight vigil in Victoria Park to remember the victims of the 1989 Tiananmen Massacre in Beijing and call for accountability for the perpetrators of the massacre and the democracy in China that the 1989 protesters desired. For this, they were arrested in September 2021. Chow and Lee have been detained ever since, while Ho was for a time released on bail because he had cancer though his bail was later revoked on grounds that he violated its terms.
The following statement was made by Chow Hang-tung on March 11, which was Day 11 of the trial. Its context is the following: After the prosecution made its opening statement, the defense applied to the panel of three judges designated under the national security law for early acquittal on grounds the prosecution had failed to establish a prima facie case. This statement by Hang-tung is part of that application. The panel of judges adjourned the trial for one day to consider the matter, and on March 13—Day 12 of the trial—ruled that the prosecution had established a prima facie case and rejected the defense’s application for early acquittal. Now that the defense has a “case to answer,” it will present its case, beginning on March 17.
The prosecution’s case hinges on the assertion that calling for an end to one-party rule constitutes “incitement to subversion of state power,” subversion being one of the four core crimes in the National Security Law imposed on Hong Kong in 2020. During its existence from 1989 to when it was forcibly closed by the regime in 2021, Hong Kong Alliance had five “operational goals,” and “ending one-party rule” was one of these. It was a slogan chanted at protests and the annual June 4 candlelight vigil for decades. Up to the imposition of the national security law, it was unquestionably protected speech under Hong Kong law. The prosecution is essentially arguing that what was once legal in Hong Kong is now illegal.
Hang-tung is herself a lawyer (in British legal terms, a barrister) and is representing herself in the trial. It’s worth stressing that, having been in prison since September 2021, she has prepared her entire defense, including this statement, from inside of a prison cell, without the aid of a word processor or the internet.
Hang-tung’s statement, made in a court of law as part of a trial, largely conforms to the norms of legal language, but her arguments are also wide-ranging, having to do with constitutional issues with potentially broad implications, and, even more broadly, with the relationship between the Chinese legal system and Hong Kong’s, and, indeed, the relationship between Hong Kong and China. Ultimately, what Hang-tung is portraying is two almost entirely clashing world views. According to one, citizens truly are the masters of the nation and are without question free to discuss their government and constitute it as they see fit. According to the other, it is only a supreme power entirely above the law which has the authority to dictate to its subjects what is permissible to say and do in relation to matters of governance.
In this sense, it can be said that while Hang-tung’s statement is primarily intended to address the matter at hand in the trial, it can also be read as a “statement to history,” raising issues that get straight to the heart of the political status of Hong Kong as well as freedom and human rights. For that reason, perhaps, when she gave the speech, she was interrupted several times by the judges. They warned against lapsing into a “political statement” and also objected to her use of some words, such as her reference to the Chinese Communist Party as an “external party” in Hong Kong and her reference to the Chinese Constitution as a “foreign law” in terms of its status in the Hong Kong judicial system.
From a legal perspective, what Hang-tung is pointing out is that the Chinese Communist Party’s imposition of the National Security Law on Hong Kong in 2020 raised all kinds of complicated and vexing questions. She asserts that, rather than addressing these questions, the prosecution is saying to the court that this is essentially a simple, open-and-shut case: that the defendants said certain things, and that this constitutes “inciting subversion,” end of matter. Hang-tung takes the opportunity to draw out these complicated and vexing questions that she says the prosecution is eager to avoid.
From a political and ethical perspective, Hang-tung is saying, Of course, citizens have the right to freedom of expression. This includes expression related to matters of governance. And not only that, they have the right to choose their own political leaders. So the whole premise of the prosecution’s case is absurd; in fact, it is a perversion of the rule of law.
Ultimately, then, this is a fiery, defiant and radical statement, “radical” in the sense of getting to the roots of the matter and cutting through the fog of deception that has prevailed in the Hong Kong political and judicial system over the last six years.
The statement is divided into eight parts: 1) key points of the prosecution’s case, 2) the so-called illegal objective, 3) illegal means, 4) the Constitution is a foreign law, 5) what constitutes incitement?, 6) illegal intent, 7) human rights, and 8) a conclusion.
The statement was made in court in English, which is the main language of the trial. On March 14, three days after it was made, Hang-tung’s social media team published it in Chinese. The following is a translation of that published Chinese version. The team has previously published Hang-tung’s statements, including legal statements, in both Chinese and English, and it is unclear why it has not done so this time, especially as Hang-tung made the statement in English. So, in short, it is unclear which version Hang-tung considers the authoritative version. And some of the translated phrases below may differ from those in speech she gave in court. While this may be so, I believe that in its entirety, the translation adequately captures the logic of Hang-tung’s thought and ideas. May it suffice until the time when Hang-tung is freely able to elucidate these matters herself.
I. Key Points of the Prosecution's Case
(1) The factual basis upon which the prosecution relies in this case is actually incredibly thin. The core of the prosecution's case boils down to only two points: the defendants advocate "ending one-party dictatorship," and "ending one-party dictatorship" means "ending the leadership of the [Chinese] Communist Party." Therefore, the defendants are inciting subversion of state power. No need to know what actions we incited; no need to analyze what methods were used; no need to consider what human rights were violated; in short, if you say you want to end the leadership of the Communist Party, you are definitely breaking the law.
(2) The defendants’ insistence on "ending one-party rule"1 is indisputable, making it the key, even the sole, argument of the prosecution: the factual claim that "ending one-party rule" equals "ending the leadership of the Communist Party."
(3) The defense, of course, cannot agree with this sweeping argument. "One-party rule" refers to a power structure, while "the leadership of the Communist Party" refers to the actual authority held by a particular group.
[The relationship between] these [two phrases] is essentially like the relationship between an ecosystem and cockroaches—two completely different concepts. While the number of cockroaches might reflect the health of an ecosystem, it isn’t the same as destroying the ecosystem or eliminating cockroaches.
(4) However, the court has not yet heard the defense's arguments and does not yet understand our interpretation of ending one-party rule. At this stage, we can analyze the core of the prosecution's case to see if it's possible, or even simply conceivable, to prove the charges.
II. The So-Called Illegal Objective
(5) That is to say, let's assume the defendants’ goal is to end the leadership of the Communist Party. The question, then, is how?
(6) We can go even further. We can assume that ending one-party rule contravenes not only Article 1 of the [People’s Republic of China] Constitution ("the leadership of the Communist Party"), but the entire Constitution.2
Because "ending one-party rule" is essentially about democratic transition, and it seems unlikely that a genuine democratic transition could avoid rewriting this self-contradictory Constitution. Even if we assume this is our ultimate goal, so what? Why not?
(7) As citizens of this country, as masters of this nation,3 why do we have no right to oppose the provisions of the current Constitution? Amending or even rewriting a constitution is nothing new; it’s happened all over the world. The Communist Party itself has promulgated four constitutions, with as little as three years between them.
If the Communist Party can amend the Constitution to include provisions upholding its leadership, why can't we make opposing demands, and why is it said that their mere mention is illegal?
(8) If the phrase, "the leadership of the Communist Party," truly has legal effect and is not merely the will of a powerful regime, then there must also exist legal means to change it. And as citizens of this country, not subjects, we certainly have the right to express our desire to end this provision and the right to seek consensus and ultimately push for the change of this law.
Even though the threshold for constitutional amendment may be extremely high, and even though the current legislators4 might never respond to our demands, in a society governed by the rule of law, it is impossible to prohibit citizens from expressing their desire to change or even end a law, whether in the Constitution or a lower-level law. And precisely because we are discussing a constitutional amendment...
The extremely high threshold inherently requires broad discussion in society and consensus as a foundation before it can even enter the actual legislative process. This further demands that the people have the freedom to discuss in the public sphere whether the Constitution should be amended and how it should be amended, rather than immediately imprisoning anyone who proposes such a idea.
(9) Therefore, regardless of whether we want to end a certain constitutional provision, or even overturn the entire Constitution and start over, as long as we do not use any illegal means in the process of advancing this goal, such as kidnapping the National People's Congress to force them to pass our proposal, we have not broken any laws, and our goal cannot be called "illegal."
(10) The prosecution's current argument that "ending the leadership of the Communist Party" is necessarily illegal, and that the people have no legal means to end the leadership of the Communist Party, essentially denies the people's status as masters of the country. It means that this country can only ever be ruled by the Communist Party, and we, the subjects, can only obey, not oppose, and definitely not change it.
Whether you believe in communism or not, whether you agree with the Communist Party's program and ideology or not, you and your descendants must forever submit to the leadership of these Communists. On what grounds?
(11) To demand that Hong Kong people accept this un-discuss-able and immutable legal provision is actually more absurd than in the mainland because the Chinese Communist Party doesn't even have a formal identity in Hong Kong. Even those who really want to join the Party have no legal way to become a member of this ruling class. It means that Hong Kong people must forever accept the leadership of an external party that doesn't belong to us and doesn't represent us. On what basis? How can they claim to be "Hong Kong people governing Hong Kong"?5
(12) Moreover, if the prosecution's argument is correct, it means that even when the Communist Party leads the state apparatus to commit crimes, massacre the citizens and students of June 4, arbitrarily detain millions of Uyghurs, rewrite history, and suppress the truth, we must follow suit and not demand an end to its leadership. On what basis?
(13) Laws are rules created by people, and naturally, they can be changed by people, especially when this law continuously creates evil and injustice. No law in the world can stipulate that it can never be undone or ended. If "Communist leadership" truly has such power, it only proves that the Communist Party is a distorted entity that overrides the law.
(14) Therefore, even if we assume that "ending one-party dictatorship" is equivalent to "ending the leadership of the Communist Party," this proposition6 is false. Because the people have every right to end the leadership of the Communist Party, and the Communist Party cannot say no. Because the party is not the state; the people are. If "the leadership of the Communist Party" is truly a legal provision, ending this provision cannot, in essence, be an illegal goal.
III. Illegal Means
(15) Of course, even if the goal itself cannot be called "illegal," pursuing or achieving it through certain methods can still constitute a crime. Here we need to examine the prosecution's case regarding "illegal means." The prosecution, in addressing this element of the crime, still relies on the same argument and the same legal provision—that "ending one-party rule" equals "ending the leadership of the Communist Party." And "ending the leadership of the Communist Party" necessarily involves means that violate the constitutional provision of "Communist Party leadership;" therefore it constitutes illegal means.
(16) In fact, Article 227 of the National Security Law has never required that the goal and means must both target the same legal provision. This situation arose in this case simply because the prosecution chose this particular scenario. But since they chose this scenario, they must fulfill their burden of proof to demonstrate that we genuinely incited others to “overthrow and undermine” the leadership of the Communist Party [or violated that provision of the Constitution], and not simply oppose the leadership of the Communist Party.
(17) Opposition does not equal overthrow or undermining or violation; this point shouldn't require much explanation. For example, I could try my best to oppose the mandatory seat belt law8 in various ways, but I still wear a seat belt every time I take the bus. To prove that I "violated" and not just "opposed" it, you first need to prove that I took the bus, that the bus actually had seat belts, and that the bus actually came into service after the law came into effect, rather than just mentioning my "opposition" and escalating it infinitely.
(18) "Violating" the leadership of the Communist Party is the same. You first need to prove that I am within the scope of the Communist Party's legal leadership over me—that is, I am taking the bus; and that the Communist Party actually gave me some instructions—that is, the bus had seat belts; and most importantly, that the Communist Party's leadership is legally effective—that is, the bus is actually under the jurisdiction of the law in black and white, and that you are automatically legally obligated to wear a seat belt just because officials want you to. Only under all these bases can the prosecution possibly—and only possibly—prove that anyone "violated" the leadership of the Communist Party. And the prosecution failed to prove any of these three points.
A. The Constitution has no direct effect
(19) Let's start with the last point. What legal responsibility does the constitutional provision of "Communist leadership" impose on us in Hong Kong—including Your Excellencies the Judges and the Prosecutor? You can't simply point to Article 1 of the Constitution and say that every Hong Konger has a legal responsibility to seek instructions from the Communist Party in everything, from eating to farting, right?
(20) The constitutional provision does not directly create any legal responsibility in Hong Kong. We cannot seize upon a constitutional provision and go to court to sue the government, saying, "Ah, you didn't elect the National People's Congress (Articles 2 and 3 of the Constitution), didn't implement the family planning policy (Article 25 of the Constitution), and didn't legislate to regulate working hours (Article 43 of the Constitution), so the government is unconstitutional!" Turning the tables, how can the government seize upon a constitutional provision, in a criminal trial, to claim that ordinary people like us violated it through "illegal means"?
(21) I thought that the idea that a constitutional provision has no direct legal effect in Hong Kong is just common sense. I didn't expect the prosecution to object to common sense. In fact, the prosecution couldn't provide any case or legal principle to support the claim that the Constitution has direct legal effect in Hong Kong.
(22) Actually, the underlying reason is very simple, and it's the core of the "One Country, Two Systems" design, the issue of whether the socialist system stipulated in the Chinese Constitution will be implemented in Hong Kong. Article 5 of the Basic Law clearly states:
“The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.”
(23) Article 18 further specifies which laws will be applied in Hong Kong:
“The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.
“National laws, except those listed in Annex III to this Law, will not be applied in the Hong Kong Special Administrative Region."
(24) Into which of the above four categories does the Constitution fit? It's not the Basic Law, it's not an existing law of Hong Kong, it wasn't enacted by the Hong Kong legislature, and it's not listed in Annex III. Therefore, it's not a law implemented in Hong Kong; it's that simple. We don't deny that the Constitution is the superior law of Hong Kong, like the Basic Law and the National Security Law, but it itself isn't directly implemented in Hong Kong. How difficult is this logic to understand?
Therefore, the prosecution cannot directly point to a constitutional provision to accuse someone of using so-called "illegal" means. If you say that provision is a "law" in Hong Kong, you must first be able to explain how that provision became Hong Kong law. The prosecution simply cannot provide such a basis.
(25) Moreover, the problem isn't just that the Constitution itself has no direct effect in Hong Kong; the prosecution specifically chose to rely on Article 1 of the Constitution, a provision added in 2018. Literally, it's clear that this amendment is irrelevant to Hong Kong. What was the purpose of adding that clause in 2018? They said:
“The defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China.”
(26) In other words, this amendment modifies the content of socialism9, while Article 5 of the Basic Law clearly states that Hong Kong does not practice a socialist system. Therefore, this 2018 amendment has nothing to do with Hong Kong and cannot shift the boundary between what is legal and illegal in Hong Kong.
(27) Forcefully insisting on this newly added provision, "leadership of the Communist Party of China,” being implemented in Hong Kong, is tantamount to forcibly transplanting socialism to Hong Kong, directly negating and undermining "One Country, Two Systems." The prosecution's loud advocacy of such a traitorous stance makes it seem as if they themselves are committing sedition.
B. Who is the Communist Party? Whose leadership is it?
(28) Okay, even if we assume the court accepts that the phrase. “leadership of the Communist Party of China,” is somehow part of Hong Kong law, and can serve as a legal basis for "illegal means," the prosecution still needs to make arguments that we can accept, like pointing out the bus and the seat belt.
(29) As a Hong Kong citizen, within what scope do I have to listen to the leadership of the Communist Party of China, and within what scope do I not? Just as a court cannot possibly follow the leadership of the Communist Party in judging our case, I, as an ordinary person, cannot possibly consult the Communist Party before acting on every matter, big or small. So, what are the boundaries of the Communist Party's leadership over each of us? What are the explicit regulations? I don't know.
(30) And even if I really wanted to do my utmost to comply with this so-called law, even if I wanted to ask the Communist Party before brushing my teeth if they would allow me to do so, I don't know where to go. Does the Communist Party even exist in Hong Kong? Does it operate? Is it a company, a society, or an individual? Where is its phone number? Where is its office? How can I consult them before I can be "led," before I unknowingly violate this "Party leadership" law? I don't know.
(31) It has always been common knowledge among Hong Kong people that the Communist Party of Hong Kong is, to put it more politely, an underground organization, and to put it bluntly, an illegal organization. Therefore, when asked whether they are members of the party, no one dares to answer. While students and civic organizations are constantly facing legal trouble and being forced to shut down for not registering, why is it that the Communist Party not only doesn't need to register, but can also lead everyone in this illegal state?
(32) Of course, it's not the defense's responsibility to prove that the Chinese Communist Party is an illegal organization, but rather the prosecution's burden of proof to demonstrate that we incited others to violate the legitimate leadership of a legal organization, and not just oppose the existence of triad leadership. Has the prosecution presented any such evidence? No, they haven't even tried.
(33) What is not prohibited by law is permitted; this is a fundamental principle that the Court of Appeal just confirmed in the primary election case.
The prosecution cannot simply rely on the absurdly broad phrase "the leadership of the Communist Party" to claim that the law prohibits us from doing anything the Communist Party would dislike, including ending or pushing for the end of its leadership. The Communist Party's disapproval doesn't automatically become law.
The prosecution's current argument is tantamount to reversing the principle of "what is not prohibited by law is permitted" to "what the Party does not permit is illegal."
(34) If "the leadership of the Communist Party" were truly a legal provision that ordinary people could violate and thus constitute "illegal means," then it must have legal and practical boundaries.
The prosecution failed to prove the legal basis and scope of the Communist Party's leadership, nor [did it indicate] any directives within its legal authority that we cannot disobey. Based on this evidence, the prosecution has no way of proving that it is "illegally in control of the case."
IV. The Constitution is "Foreign Law"
(35) A deeper issue is that the Constitution, within the context of Hong Kong's legal system, is not local law but foreign law. Its content and interpretation must be proven in court as a matter of fact.
(36) The prosecution recognized this problem from the beginning, which is why it attempted to include the entire Constitution in its consent to the case, but this was rejected by the defense.
(37) So the current situation is that we cannot agree with the facts of the case, and the prosecution has no expert witnesses on Chinese law. This means that all issues related to the content and interpretation of the Constitution are in a state of unproven evidence. It's not as simple as whether there is prima facie evidence; there is absolutely no evidence. Therefore, the prosecution can only stubbornly argue that the Constitution is not foreign law, and that the court itself has the right to interpret it as an ordinary law. Once again, the prosecution has defied my common sense understanding and seems to have completely disregarded the consequences if the court were to adopt its claim.
(38) First of all, treating mainland Chinese law, including the Constitution, as foreign law is not a matter of one’s political stance; rather, it is purely a matter of legal jurisdiction and expertise. After all, Hong Kong judges and lawyers receive common law training. Can we really use what we have learned to directly interpret Chinese law? The wording and concepts used in the Constitution may differ significantly from those used in common law. Furthermore, we lack the background knowledge of relevant case law and judicial interpretations that mainland legal professionals possess. So, how can Hong Kong courts and lawyers be expected to interpret the Constitution with professional competence, rather than appearing as naive laymen who believe that knowing Chinese equates to knowing the law?
(39) An even bigger question is whether Hong Kong courts truly have the power to interpret the Constitution. Article 67 of the Constitution suggests it does not.
The power to interpret the Constitution rests with the Standing Committee of the National People's Congress, and this power has never been granted to Hong Kong courts, nor even to the people's courts of mainland China. For example, why was the famous 2003 review of the constitutionality of the Custody and Repatriation system initiated by ordinary citizens like Xu Zhiyong directly to the Standing Committee of the National People's Congress, rather than by the courts?10 The court may not be familiar with this famous case in the history of mainland constitutional law, and I do not intend to present evidence in this setting. However, precisely because neither the court nor we can rely on such examples from mainland judicial history to assist in analyzing the role and meaning of the Constitution, the court should not rashly claim that it has the ability to directly interpret the Constitution. If the court does not mind that the articles in the Hong Kong Alliance in Support of Patriotic, Democratic Movements in China (HKASPDMC) are not strictly considered evidence, this case of constitutional review has indeed appeared in the trial proceedings, namely in the HKASPDMC issue No. 121 of April 2019 [TB2 / SN15 / p.139]. The court may refer to it if interested. Of course, if the prosecution's argument is correct, the court can directly cite this "case" regarding the Constitution without even hearing evidence. I don't know if the court sees how absurd the current situation is; in China, not just Hong Kong, citizens have never been allowed to sue the government for unconstitutionality, but now the prosecution says the government can sue a citizen for unconstitutionality. If they can actually do that, then they've truly set a world precedent for how the Constitution can be manipulated.
(40) We can also compare how the Basic Law stipulates the Hong Kong courts' powers of interpretation. Article 158 of the Basic Law stipulates:
“The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.”
This is the same as the Constitution.
But after this sentence, the Basic Law provides a clear authorization:
“The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.
“The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases.”
Then there are provisions regarding the circumstances under which an interpretation by the National People's Congress should be sought.
(41) Does the Constitution contain a similar authorizing clause? Obviously not. Are there any procedural provisions regarding seeking interpretations from the National People's Congress (NPC) to avoid irreconcilable conflicts between Hong Kong courts' interpretations and the NPC's interpretations? Of course not.
(42) What the prosecution is asking the court to do now is essentially to assert that we have the right to interpret the Constitution ourselves, without authorization from the NPC, and regardless of the fact that the articles we interpret apply not only to Hong Kong but to the entire country. Do Hong Kong courts truly have the authority and ability to make such a nationwide legal declaration? Is this approach truly in line with the socialist legal system stipulated in the Constitution?
(43) Actually, if the Hong Kong courts were to truly gain such power, and the central government did not object, I would be the first to applaud. This would mean that ordinary people like us would finally have a platform and channel—the courts—to participate in debates about what the Constitution actually requires, instead of just waiting for the National People's Congress to make its so-called "interpretation" in a black box. Moreover, Hong Kong would likely attract many lawsuits regarding unconstitutionality that are impossible to even file on the mainland, providing another opportunity to tell the Hong Kong story well.11
(44) However, while I myself would welcome this development, I cannot convince myself that it is, legally speaking, the right approach. Furthermore, politically, encroaching on the territory of the National People's Congress in this way is tantamount to mixing well water with river water, which is extremely unwise.
(45) In fact, if we simply follow the established practice of the courts in handling mainland law, and find expert witnesses to testify and explain the relevant content, all the aforementioned troubles will be avoided. This is because the court will only issue a factual ruling reflecting the evidence in the case, not a general legal declaration. Undoubtedly, this approach is more in line with the position of Hong Kong courts under the national system and the "One Country, Two Systems" framework.
(46) In practice, asking the prosecution to find expert witnesses is not unreasonable. It's not incredibly difficult for the prosecution to find a Chinese law expert; plenty of experts are already lining up to testify for the government. In contrast, it's truly an impossible task for the defense to find a Chinese law expert willing to contradict the government and enter the country to testify.
(47) If the court agrees that it has no power to interpret the Constitution, and there is no expert evidence on Chinese law in this case, then the situation is quite clear, and there is absolutely no need to proceed with the trial.
V. What constitutes incitement?
(48) Besides this major loophole in the Constitution, another black hole in the prosecution's case is the question of what actions the defendant incited others to take.
(49) I must emphasize that the meaning of a statement and its effect are two different matters. The meaning of world peace may be very clear, but this meaning cannot answer the question of what actions advocating world peace would incite.
(50) Saying that a person agrees with a certain goal and therefore does something only tells the court about that person's motive; it doesn't explain what their actions are, the consequences of those actions, or their intentions. The fact that someone agrees to steal bread to feed a woman does not make "feeding the woman" their intention or consequence. Of course, it's also possible that the person's actions are driven by this goal, such as stuffing food into the woman's mouth until she's full. In this specific case, "feeding the woman" could be both a motive and a result. However, stealing bread and feeding someone are clearly two very different acts, involving very different analyses of criminal intent. Simply stating "this person agrees to feed the woman" doesn't distinguish between these two situations.
(51) Returning to the situation in this case, what exactly is the prosecution trying to say:
I. We incited others to do things that the perpetrators subjectively believed would help end one-party rule, such as stealing bread to feed a woman (i.e., written submission "Case One")
II. We incited others to do something that objectively would end one-party rule, such as directly feeding a woman (i.e., written submission "Case Two")
(52) "Ending one-party rule" is a motivation provided under Case One, but only under Case Two is it possible for it to be both a consequence and an intention.
(53) Ultimately, Case Two is the prosecution's position. I really hope the prosecution can answer this clearly. Because based solely on the evidence and submissions presented by the prosecution, I find no answer at all.
(54) If we review the prosecution's evidence, all the actions the defendants explicitly urged others to take, such as lighting candles, signing petitions, visiting memorials, holding marches and rallies, etc., all fall under Case One and none can be categorized under Case Two; that is, the direct effect is to end the one-party dictatorship.
So, is the prosecution trying to say that all these actions, with vastly different natures and consequences, are criminal acts violating Article 22 of the National Security Law? In other words, regardless of the objective nature and consequences of the actions, as long as the person doing the action subjectively wants to "end the one-party dictatorship," then whatever they do is illegal? In other words, under the circumstances of this case, Article 22 of the National Security Law is purely a thought crime. In terms of the act of mourning June 4, if you only think of the victims, you're fine; but if you even think of "ending one-party rule," you've subverted the state.
(55) Or, to put it another way, the prosecution's case isn't so extreme. The "incitement" they're targeting isn't any behavior that's been mentioned in the evidence. It's something we haven't said, but which could miraculously end one-party rule. So, what should the defense respond to now—Option A or Option B?
(56) The prosecution's written statement is constantly oscillating between these two contradictory positions. In paragraph 64 of the prosecution's opening statement, the prosecution stated:
"Any action aimed at achieving this goal necessarily involves illegal means that violate the constitutional order stipulated by the national Constitution. The defendants' continuous incitement of others to take any specific action 'helping to end the dictatorship' is essentially inciting unspecified individuals to take actions at different levels aimed at overthrowing or undermining this constitutional order."
(57) This is quite clear, based on the statement in "Case One," because descriptions like "aimed at" and "helpful" are entirely motivational rather than result-oriented descriptions, just like stealing bread helps feed a woman. And actions like commemorating June 4 and setting up street stalls are directly harmless acts, and can certainly be categorized into the broad framework of "helpful" and "aimed at."
(58) However, a few paragraphs later, the prosecution's position undergoes a 180-degree shift. In paragraph 68, the prosecution states:
"The prosecution's charges against the defendants never simply or generally refer to their participation in or invocation of general assemblies, demonstrations, or petitions, but rather to their incitement of others to organize, plan, carry out, or participate in acts aimed at subverting state power through illegal means… The assemblies, demonstrations, petitions, and pronouncements mentioned in D4 are, of course, related; these are the means or channels they used to spread such subversive propositions and strengthen the effect of incitement…"
(59) In this paragraph, the prosecution seems to completely deny that the specific calls that occurred in this case constitute the "incited behavior," but only regards them as incitement itself. So, what exactly is the "incited behavior" after all this incitement? It's unclear, but it's some kind of act that subverts state power. This seems to be the second aspect of the case, and completely negates the first aspect.
(60) This ambiguity in the prosecution's case is precisely the concern I raised before the trial. I pointed out earlier that the details of the crimes provided by the prosecution lacked sufficient content to place the case on a stable, factual foundation. So now we see the prosecution constantly jumping between contradictory facts, using different factual foundations to extract the elements of the crime they need. To prove we incited others to do certain things, and to prove that this effect was natural and reasonable, they can choose the easier-to-prove first fact; when they need to prove that the incited behavior overthrew the state system and inevitably involved illegal means, they can subtly jump to the second fact.
In any case, as long as "incited behavior" remains a vague term without a fixed label, the prosecution can extract its arguments from as many incompatible "incited behaviors" as they like. What does "I win in public, you lose in private" mean? It's this kind of strategy employed by the prosecution.
VI. Criminal Intent
(61) But in reality, regardless of whether the prosecution ultimately chooses Case One or Case Two, they still cannot prove the defendants’ criminal intent.
(62) As I mentioned in my written submission, whether it's common law incitement or incitement under the National Security Law, the prosecution needs to prove two elements of criminal intent:
(1) The defendant intended that the incited act would be carried out and agreed to the consequences of that act;
(2) The defendant intended or believed that the incited person would have the desired criminal intent.
(63) The prosecution has not disputed any errors in Smith & Hogan's explanation of the criminal intent for incitement, nor has it presented any counter-examples. So I don't know why they can claim that the two elements of criminal intent I mentioned are overlapping, redundant, or the only explanation.
It seems the prosecution knew they couldn't prove both elements simultaneously, so they could only stubbornly insist the court shouldn't concern itself with their stated intent. But of course, it would be remiss of the court to follow that course.
(64) To analyze intent, one must first determine what the "incited act" actually is, because discussing intent without considering the act itself is logically impossible. Therefore, in the second scenario, since no one knows what the act that could subvert state power could be, it's impossible to discuss the incited person's intent, let alone assert the defendant intended or believed they had any intent. Furthermore, saying the defendant intended an act we don't know to be carried out is a complete violation of the concept of "intent."
(65) In the first scenario, the prosecution could certainly argue that we intended to light candles, set up street stalls and host lectures, but you can't possibly say that we intend these actions to lead to the end of one-party rule or the end of Communist Party leadership; we're not idiots. Furthermore, when we call on others to engage in various civic actions, such as candlelight vigils, we have absolutely no reason to intend or believe that those who come have a specific intention to subvert the state. We're already grateful that everyone is even there; what does it matter whether those who come aim to subvert the state?
(66) Therefore, regardless of whether the prosecution relies on Case One or Case Two, intent is another major loophole. The prosecution's written submission also failed to address the issue. It simply reiterated its reliance on the core fact—because ending one-party rule means ending Communist Party leadership, the defendant must have related intent. This kind of argument, which skips over the nature of the incited act and the specific legal definition of the required criminal intent, amounts to the tyrannical logic of "if I say you have it, then you have it."
VII. Human Rights
(67) Finally, I need to respond to the prosecution's position on human rights issues.
(68) The prosecution states in paragraph 21 of its written submission:
"As a fundamental consideration, the law cannot allow anyone to endanger national security in the name of human rights, including in this case, inciting others to subvert state power, and then using human rights as a 'shield.'"
Wow, this statement completely overturns all the arguments and cases on human rights seen in court over the years.
(69) I must emphasize again that the fundamental principle of common law is "what is not prohibited by law is permitted." Using "what the law cannot allow" as a "fundamental consideration" is completely wrong from the beginning. In this new Hong Kong where national security is paramount, the prosecution seems particularly fond of analyzing issues from the anti-rule-of-law perspective of "anything not permitted by law is illegal," even though the Court of Appeal has clearly pointed out the error of this viewpoint.
(70) Human rights are fundamental and the starting point [of law]. The truly fundamental consideration is that the law cannot allow anyone to infringe upon human rights in the name of national security, just national security is now used to extinguish the candlelight vigil in Victoria Park and to prohibit accountability for the massacre.
(71) The prosecution's logic is entirely the result-oriented reasoning that the government prefers. They assume there must have been subversive behavior, therefore human rights are inapplicable, instead of fairly considering human rights factors before judging whether your behavior can be considered subversion of the state. If you can really twist the logic like this, then human rights will never apply. So what's the point of having human rights under the National Security Law?
(72) The fourth defendant’s argument regarding human rights is merely a set of long-established and undisputed general principles: when a court considers the scope of a criminal offense and how to draw the line between illegal and legal, human rights must inevitably be included in that analysis. Is the prosecution going to oppose even this basic principle?
(73) Specifically, when considering the charges and elements of the crime in this case, the most obvious application is that when the court considers what constitutes the natural and reasonable effect of the defendant's words and actions, it must also consider the impact on human rights. The line between what would reasonably and naturally incite criminal behavior should not be drawn too broadly, to the point that the exercise of freedom of speech becomes impossible. This is simply an application of the Court of Final Appeal's analysis in the Yeung Mei-wan case12, and is nothing new.
(74) Similarly, applying this principle to the interpretation of Article 22 of the National Security Law will inevitably affect how the court defines "illegal means." For example, when the prosecution draws the line on "illegal means" to the point that even lighting a candle can be illegal, how can this interpretation possibly meet the constitutional requirement of protecting human rights?
(75) When the prosecution completely refuses to consider human rights, its analysis inevitably has fatal flaws. This problem actually directly appears in its core case, namely the claim that "ending the leadership of the Communist Party is necessarily illegal." This argument completely denies a fundamental political right: the right of the people to choose their own leader.
The prosecution's entire objective is to criminalize the pursuit of human rights, which essentially violates the constitutional protection of human rights. So, who among us is violating the Constitution? Clearly, it's the prosecution, not the defendant.
VIII. Conclusion
(76) The prosecution's entire case is riddled with holes and leaks everywhere. Regardless of what actions the defendant incited; what methods were involved; the nature and consequences of those actions; or the defendant's intent, the prosecution either lacked any evidence or presented no coherent facts, merely jumping between the most convenient statements available at the moment. Even though I have analyzed the prosecution's core accusation—assuming "ending one-party rule" equals "ending the leadership of the Communist Party"—the court can see that the prosecution has still failed to prove any element of a crime.
(77) Most importantly, whether it's "ending one-party rule" or the prosecution's use of "ending the leadership of the Communist Party," that is a goal that every Chinese person has the right to pursue. The prosecution tried very hard to make this goal something completely unthinkable and impossible, but they simply couldn't find any reasonable legal or evidentiary basis.
(78) Ultimately, the fact that the Party doesn't want anyone to talk about ending one-party rule doesn't mean the law doesn't allow it. The prosecution has completely failed in proving that the law "doesn't allow it." Throughout the prosecution's arguments, they have been constantly subtly changing the meaning to disguise the Party's will as law. They have changed meaning to effect, opposition to violation, motive to intent, and even mainland law to Hong Kong law.
#Thank you for still having the courage to read this kind of article!13
#Thank you for still having the courage to uphold your conscience!
#Thank you for still having the courage to stand together!
#Freedom for Ah Yan #Release Lee Cheuk-yan
#Freedom for Ah Tung #Release Chow Hang-tung
#Freedom for Ah Yan #Release Albert Ho
#FREEallPrisonersofConscience
The phrases “rule” and “dictatorship” are used interchangeably. Sometimes, in actual practice, they were conjoined, as in “end dictatorial rule.” In all instances, the basic idea is that the Communist Party should not be allowed to remain in power indefinitely, without the people having any say in the matter.
Throughout, “Constitution” is spelled with a capital C and refers to the Chinese constitution.
"Masters of the nation” is a key concept in the Chinese constitution. It is explicitly stated twice. Here, Hang-tung is turning the constitution back on itself and the prosecution’s argument back on the prosecution: you say we violate the constitution and thus violate the national security law, but do our actions not actually conform to the key principles of the constitution?
The National People’s Congress has sole authority to amend the Chinese constitution. It is largely a rubber-stamp body whose real purpose is to fulfill the will of the Communist Party.
“Hong Kong people governing Hong Kong” is a key concept in the “one country, two systems” framework, but in actual practice, it has always been a fiction since the Hong Kong government is effectively controlled by the Chinese Communist Party through a variety of mechanisms such as having the authority to appoint (ie, select) the Chief Executive.
Ie, that doing so constitutes a crime.
Chow Hang-tung, Lee Cheuk-yan, Albert Ho and Hong Kong Alliance are formally accused of violating Article 22. Its relevant parts are the following: “Article 22 A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence: (1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China….”
Here, Hang-tung is referring to an actual recent law requiring bus passengers to wear seat belts that the Hong Kong government passed and has since moved to revoke after it created confusion, opposition and many complaints that it is unworkable and ill-conceived.
The preceding sentence in Article 1 is “The socialist system is the basic system of the People’s Republic of China.”
The Custody and Repatriation system allowed for police to detain people if they did not have a residence permit in the location where they were apprehended. Following the death of a young man, Sun Zhigang, in police custody in Guangzhou in 2003, Xu Zhiyong, a lawyer himself, led an ultimately successful campaign to get the regime to abolish the abusive system. This success is widely seen as opening a period in which human rights lawyers were able to make some incremental progress but was followed by a heavy crackdown, and Xu Zhiyong himself is now a political prisoner. Chow Hang-tung, having worked with human rights defenders in China for years, likely knows more about this case, and for that matter, Chinese law in general, than anyone else in the courtroom to whom she is addressing this statement, including the prosecution lawyers and judges.
The tone of this last statement in the paragraph is sarcastic, echoing the Hong Kong government’s repeated assertion that an important responsibility of the media and others in Hong Kong is to “tell Hong Kong’s story well,” ie, engage in propaganda conforming to the regime’s wishes.
In May 2005, The Hong Kong Court of Final Appeal issued a ruling regarding the case of Yeung Mei-wan and seven other protesters. The ruling is considered a landmark in matters of freedom of expression and assembly in Hong Kong. It revolves around an incident in 2002 when 16 members of Falun Gong were arrested outside of the Liaison Office, the Chinese government’s official headquarters in the Sheung Wan district of Hong Kong.
These hashtags at the end were added by Chow Hang-tung’s social media team and do not constitute part of the text of the statement.