A former student activist on Thursday pleaded guilty to charges of “secession” under Hong Kong’s draconian national security law, while the city’s highest court ruled that people can’t be charged with “rioting” or “illegal assembly” if they weren’t actually present at the scene of a protest.
Tony Chung, 20, pleaded guilty to publishing “seditious messages” on social media, and to holding protests and activities in 2020 with “secessionist intent,” prosecutors told the District Court.
Chung, who once headed the now-disbanded pro-independence group Studentlocalism, told the court: “I have nothing to be ashamed of.”
A further charge of “money-laundering” relates to his use of a Paypal account to collect donations from supporters to fund “illegal actions.”
According to prosecutors, Chung continued to publish posts to his group’s Facebook page even after the ruling Chinese Communist Party (CCP) imposed the national security law on Hong Kong from July 1, 2020, providing links for donations, despite Chung’s claim that his group had stopped all Hong Kong-based activities.
Police had seized pro-independence flags, leaflets, and books about Hong Kong independence at Chung’s home, they told the court.
“Secession” charges carry a maximum sentence of life imprisonment, but the District Court can only hand down jail terms of up to seven years.
Chung has been denied bail since his initial arrest at a coffee shop near the U.S. Consulate in Hong Kong on Oct. 27, 2020.
He is standing trial under Article 21 of the national security law, which prohibits anyone from “actively organizing, planning, implementing or participating in acts aimed at dividing the country and undermining national unity in Hong Kong.”
Chung’s plea came as Hong Kong’s Court of Final Appeal knocked back a decision allowing the legal principle of “joint enterprise” to be applied to people who supported protesters, but who weren’t present at the scene.
Five judges made the ruling following a request from the department of justice to clarify the law.
A lower court had ruled that people who encourage others to join illegal protests through social media, provide resources, or provide transportation to help protesters leave the scene of a protest were liable to charges of “illegal assembly” or “rioting,” despite not being physically present.
“A defendant who is not present at the scene of an unlawful assembly or riot cannot be found guilty as a principal offender because ‘taking part’ in the criminal assembly is a centrally important element of these statutory offences. That requirement cannot be overridden by the common law doctrine of joint enterprise,” the panel of five judges said.
Other charges possible
They said such people could potentially still be guilty of other offenses, such as conspiracy or incitement to take part in “illegal assembly” or “rioting.”
They said anyone who assists an offender remains liable under section 90 of the Criminal Procedure Ordinance.
One of the appellants in the case was Tong Wai-hung, who was earlier acquitted of rioting in July 2019 – one of more than 10,000 people arrested during months of sometimes-violent anti-government protests that rocked Hong Kong that year.
While Tong’s acquittal wasn’t under threat, the department of justice wanted a ruling showing that a person could be convicted of “rioting” or “illegal assembly” even if they weren’t present.
Social worker and rights activist Jackie Chen told RFA that she is currently awaiting a ruling after the Attorney General appealed her acquittal in relation to a protest on Aug. 31, 2019.
“The earlier judgment from the [lower court] had been very worrying … and we have seen a number of cases prosecuted [under joint enterprise],” Chen said. “The latest ruling is more reasonable, from the point of view of those awaiting sentencing.”
“A number of people have been prosecuted just for existing, not because they went somewhere,” she said. “At least now, there is the hope of appeal.”
Barrister Johnny So said the ruling could affect some cases in the pipeline.
“Some people are saying it means people should be released … but even if they can’t say you took part in a riot, they can accuse you of inciting or assisting others to do so,” So said.
“This just clarifies what they will regard as breaking the law.”
Translated and edited by Luisetta Mudie.
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