HONG KONG — A Hong Kong court sentenced a protester to nine years in prison Friday for terrorism and inciting secession, the first demonstration of the teeth of a sweeping new national security law aimed at those who might speak out against Beijing.
The protester, Tong Ying-kit, had faced up to life in prison after being convicted this week. The case against Tong, who crashed a motorcycle into police officers while flying a protest flag, was the first brought under the security law, which was imposed last year on Hong Kong by China’s central government.
The collision with the police complicates any analysis of how the courts used the national security law to punish peaceful dissent. But legal experts said the sentence sent a clear message that antigovernment speech now carries a greater risk.
“It may appear lenient, as life imprisonment was a possibility. But in my view, it is not: The objective of the NSL is not merely to punish but also to prevent and deter others,” said Surya Deva, an associate professor of law at City University of Hong Kong, using an abbreviation for the national security law. “So swift and serious penalties should be expected.”
The security law has transformed Hong Kong’s judicial system, which has long been known for its independence and is separate from mainland China’s. Under the security law, the Beijing-backed leader of the city selects which judges are authorized to issue verdicts and render sentences, and the government can dispense with the city’s customary trial-by-jury system.
Tong’s case is, in some ways, a preview of how the courts may consider a slew of national security cases centering on peaceful protest and free expression that are set to follow. Jimmy Lai, an outspoken government critic and media tycoon, has been charged with colluding with foreign governments. Dozens of opposition politicians — including prodemocracy activist Joshua Wong; former journalist Gwyneth Ho; and Leung Kwok-hung, better known as Long Hair — have also been charged with subversion for their election campaign, which called for blocking the government’s agenda.
“The Chinese and Hong Kong governments have been successful in using the national security legislation in instilling fear in Hong Kong and also using it to clamp down on critics of both the local government and Beijing,” said Willy Lam, an adjunct professor of politics at the Chinese University of Hong Kong. “The message could not be more clear, which is that Beijing will not tolerate any opposition, let alone activities considered seditious or subversive.”
The national security law was imposed on Hong Kong last summer to quash months of unrest and widespread opposition in 2019, and it has quickly curtailed civil and political rights. Lai’s prodemocracy newspaper was forced to shut down. Schools, shops, and art museums have been warned about what they say and the messages carried in merchandise and displays. This month, the US government warned businesses operating in Hong Kong that they were at risk from the security law.
In Tong’s case, the prosecutors made clear that the sentence against him should be determined as much by the message on his banner — a popular slogan the government has deemed a call to independence — as his collision with the police.
He was sentenced to 6 1/2 years for inciting secession and eight years for terrorism, terms that were to run partly concurrently, for a total of nine years.
Without the national security law, a person convicted of driving dangerously could have received a sentence of seven years, and of two years for assaulting a police officer. Clive Grossman, Tong’s lead defense lawyer, said they would appeal the verdict and the sentence.
The power to interpret the security law rests with Beijing, and some observers say the outcome of Tong’s trial shows that Hong Kong’s courts have less space to weigh individual rights when considering security-related charges.
“Thus far, the government has run the table on NSL cases, both on key procedural matters and now on guilty verdicts,” said Thomas Kellogg, executive director of the Georgetown Center for Asian Law. “This is not a good sign that the courts will be able to mitigate the worst elements of the NSL.”
Tong, 24, was a cook in a Japanese restaurant who helped provide first aid to protesters in 2019. He was the main breadwinner for his family and helped support his sister’s studies abroad, according to his lawyers.
He was arrested July 1, 2020, after colliding with police officers while driving his motorcycle, which had a flag mounted on it that bore the slogan, “Liberate Hong Kong, Revolution of Our Times.” Three officers were injured, though not seriously, according to the court.
He was held for a year without bail. Instead of facing a jury, as is often the case for serious crimes in Hong Kong, he was tried by three judges, all of them from a group of jurists selected by Hong Kong’s chief executive, Carrie Lam, to hear security law cases.
Tong’s lawyers acknowledged that he had driven dangerously but said that he had tried to avoid the officers and that his actions did not amount to terrorism. They noted that he had been carrying first-aid equipment and that he had scheduled a lunch meeting with friends near the site of his collision with the police.
The case had been closely watched for how the court would rule on the central question of whether the slogan on Tong’s flag amounted to a call for secession, which is banned under the security law. During the 2019 protests, that slogan was widely chanted, written on signs, and spray-painted on walls.
Defense witnesses argued that the phrase did not have a single, specific meaning but instead expressed a broad desire for fundamental change. But the court ruled that a call to separate Hong Kong from China was one key meaning of the phrase and that the context of Tong’s motorcycle ride — in which he repeatedly defied the police on the day after the security law went into effect — showed that he intended to convey that secessionist message.
Legal scholars said that finding would be significant not just for other cases involving the “Liberate Hong Kong” slogan, but for an array of language that would now be parsed for illegal meanings.
“This is a green light for the prosecution to do more ambitious prosecutions in the future,” Deva said. “People will be more careful about what they say and what they write about because anything could be argued by the government as being capable of having that meaning of inciting secession.”