Political trials could become a new normal in Hong Kong as authorities target media outlets with sedition law

For the second day in a row, authorities in Hong Kong have used the charge of “publishing seditious content” to target two media outlets in Hong Kong, Apple Daily, and Stand News. Hong Kong legal expert Eric Lai says the precedents are warning signs to the journalism community in Hong Kong, as any publications deemed as “anti-government” can be targeted by the government’s legal tools.

DW: How do you view the authorities’ move to add an additional charge of publishing seditious content to Jimmy Lai and other former Apple Daily employees?

Eric Lai: The charge of seditious publication was also used to charge the unionists who published the children’s books a few months ago. It was quite disturbing because seditious law in Hong Kong is a kind of speech crime that the government can use whenever it needs once they interpret any expressions or publications that are anti-government.

They can simply water it down as inciting hatred or against the government as much as they can. This is an alarm that although the government emphasized that the National Security Law has no retrospective power, they still have other tools that can be used to arrest and charge people retroactively.

Second, it’s an irony because just a week ago, Beijing released a white paper on Hong Kong’s democracy. In the white paper, Beijing criticized the British Colonial government for using seditious law to crack down on pro-China publishers. But now the Hong Kong government is using the law to crack down on the Apple Daily.

DW: Is the move of using the charge of seditious publication against media outlets going to become a precedent in Hong Kong?

Eric Lai: It’s the first time since the 1970s the government of Hong Kong used sedition law to charge journalists and media outlets. It would be a dangerous precedent for the journalism community in Hong Kong because their publications can be viewed as seditious, as the law has retrospective power.

It will also be a dangerous precedent for people who are charged with the national security law, as the government will continue to add charges on activities before the NSL was imposed. Therefore, it would lock them up in jail even before the national security trials begin.

In Apple Daily’s case, it’s quite obvious that the government wants to add new charges in order to keep them in custody or in jail as long as they can even before the national security trial commences.

DW: As authorities in Hong Kong continue to add new charges to defendants who are already in detention, how likely do you think Hong Kong’s judicial system will become more similar to the system in China?

Eric Lai: The national security law and the seditious law in Hong Kong are political in nature. Obviously, these are political trials and it would lead to the fact that the prosecution, which is backed by the government, takes a lot of tactics to constrain fair trials and access to justice.

For the defendants in these political trials, the tactics include the removal of the jury under the NSL. It would eventually become a norm that for political trials in Hong Kong, the practice would be similar as it is in China in the future. There will be the possibility of the government maximizing all the tools under the NSL, including closed-door trials or extradition back to China for trials. This would be a blow to the judicial system in Hong Kong.

Though we have seen the government cease to arrest and charge citizens under the NSL since October, adding new charges on NSL defendants and using extra-legal measures to crack down on free speech, such as the removal of the statues commemorating June Fourth on university campuses would be a new norm similar to how they crack down on diverse opinions in China.

DW: Now that a precedent has been made out of Apple Daily for being charged with publishing seditious publications, are there ways for media outlets to minimize the risks of being targeted in the future?

Eric Lai: There is no concrete answer to this because the sedition law is a kind of pocket crime that the prosecution has simply picked up to arrest or charge any individuals or companies of making speeches that are related to government policies.

Even if you are fully on the government’s side, you would never know whether the government will one day change its mind and arrest you for its own interest. The chilling effect is quite unprecedented and it would force the newspapers in Hong Kong to decide if they still want to act independently and critically of the government.

DW: Looking at Hong Kong’s development over the last 18 months, how far has the legal system departed from how it was before the anti-extradition bill protest in 2019?

Eric Lai: There was an expectation from both the public and the legal community that the courts in Hong Kong will uphold its integrity by enforcing the international human rights commitments that are set under the Basic Law and the Bill of Rights of Hong Kong.

Unfortunately, what we have seen since the protest in 2019 is that the court in Hong Kong has relied less on the international human rights law that could protect individuals’ peaceful freedom of expression and freedom of assembly. Rather, it inclines to the government’s interpretation of law and order.

It would be a very worrying trend if the courts in Hong Kong can’t uphold their commitment to safeguarding human rights under the international human rights law. It would make the courts eventually depart from the human rights protections that are shared by the international community.

This interview was first published in Mandarin on DW’s Chinese website.