A Hong Kong court has refused three activists’ applications to challenge their convictions over refusing to comply with a data request from national security police at the city’s top court.
Chow Hang-tung, a human rights lawyer and the former vice-chair of the Hong Kong Alliance in Support of Patriotic Democratic Movements, the group that once organised the city’s annual candlelight vigils in remembrance of the 1989 Tiananmen crackdown, represented herself in court on Wednesday.
Chow appeared before High Court Judge Anna Lai along with former Alliance members Tang Ngok-kwan and Tsui Hon-kwong to apply for a certificate to take their case to the Court of Final Appeal (CFA).
They were found guilty and sentenced to four and a half months’ jail last March after they defied a police notice requesting information under the Beijing-imposed security law.
During their appeal hearing last December, they argued that the alliance was not, as police had alleged, a foreign agent, and therefore did not have to comply with the notice. Last month, Judge Lai ruled that the convictions of the Tiananmen vigil organisers should be upheld.
Foreign agents
Chow argued that there was a “pressing need” to clarify the elements of the offence, including whether the prosecution has to prove that the defendants were foreign agents and whether the defendants could challenge the legality of the police order.
She was asking for the top court to review last month’s ruling, in which Lai ruled that whether the Alliance “was in fact a foreign agent is not an element of the offence” and “is not an issue this Court is concerned with.”
“One cannot lose sight of the basic fact that the office is one of failing to comply with the Notice as required,” Lai wrote in her judgement.
Chow argued on Wednesday that “a statute should, as far as possible, be given a simple reading that any ordinary citizen can reach.”
“All I ask is to give back words their ordinary meaning so that the law may remain stable and comprehensible to the people it is addressed to, and that it would not degrade into an infinitely elastic tool to be manipulated by those in power,” Chow continued.
She went on to cite the prosecution’s submission that only “absurdity” would result from a requirement for it to prove that the activists were foreign agents, arguing that “the exact opposite” was true. “The real absurdity,” she said, was that the court had given the police the power to “call anyone a foreign agent.”
‘No chance of success’
Judge Lai dismissed the three activists’ applications, saying that their submissions were not “reasonably arguable” and that their appeals would have “no chance of success”.
Lai also ruled that the defendants could not challenge the police data order as a defence in criminal proceedings, citing a top court decision this January that saw Chow’s acquittal in a separate case overturned.
Whether such a challenge could be allowed did not constitute “a question of great and general importance,” Lai said, adding that the matter had been “well settled” at the CFA.
Chow is currently serving the remainder of a 15-month jail term for inciting others to participate in an unauthorised assembly linked to a Tiananmen vigil in 2021. She has been detained since September 2021, when she was charged with inciting subversion alongside Alliance leaders Lee Cheuk-yan and Albert Ho.
After Lai’s ruling last month, Tang and Tsui were taken into custody to serve their sentences. Lai on Wednesday refused their bail applications, saying she was not convinced they would not endanger national security.
Chow, dressed in a yellow t-shirt and a tan jacket, gestured to members of the public gallery as corrections officers escorted the defendants out of the dock.
“Take care! Hang in there!” people in the gallery said, waving at the three activists.
Public commemorations of the Tiananmen crackdown are not allowed in mainland China, but were permitted in Hong Kong until police banned the vigil in 2020 and 2021 on public health grounds. There has been no vigil held in the city since 2019.
The Tiananmen crackdown occurred on June 4, 1989 ending months of student-led demonstrations in China. It is estimated that hundreds, perhaps thousands, died when the People’s Liberation Army cracked down on protesters in Beijing.
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