July 1, 2019, marks one of the darkest days in the history of Hong Kong, when raging protesters invaded and occupied the Legislative Council building and caused extensive destruction to the property. The protest organizer claimed that some 550,000 protesters took part on that day. But one year on, most of the massive mob had vanished. The media now described their numbers in the thousands at most. Such a huge drop undoubtedly is the result of the deterrent effect of the new National Security Law enacted on June 30.
As in the past, the latest public protest degenerated into street mayhem, and police arrested over 370 protesters, including 10 suspected of violating the newly promulgated law. So what would be its effect on these offenders?
One case involved a motorcyclist displaying a Hong Kong independence flag and driving around the protest zone at high speed. He deliberately hit and seriously injured three police officers at the scene. This is a prima facie extremely serious criminal case, and apart from the existing criminal offenses, he should be prosecuted under Article 20 of the offense of incitement to commit secession, on account of his display of the seditious flag, as obviously the rider has attempted “undermining the national unification by separating the Hong Kong Special Administrative Region from the People’s Republic of China”. If the court ruled that he is a “principle offender”, which is likely, he would be subject to life imprisonment or a minimum sentence of 10 years. At least he should be treated as an active participant, and hence should be punished with the mandatory minimum sentence of three years’ imprisonment up to the maximum of 10 years. In such cases, custodial sentence is mandatory, and the judge can no longer issue community service orders, which are no more than a slap on their wrists, to these violent offenders who endangered innocent residents, and who destroyed public infrastructure and private property.
The other case involved a protester throwing a firebomb at a police vehicle. Although he missed the target, he was promptly arrested, and police found another firebomb among his belongings. He could be guilty of attempt to commit subversion under Article 22 for “attacking or damaging ... the facilities (police vehicle) used by the body of power of HKSAR ... rendering it incapable of performing its normal duties and functions”, or Article 24, a terrorism offense, for “participating in terrorist activities intended to cause grave harm to the society” through serious violence, explosion and arson. As such, he could be sentenced to at least 10 years’ imprisonment up to a maximum of life imprisonment.
July 1, 2020, will go down in our history as the dividing line between the days of indiscriminate street violence and citywide unrest, and the return of social harmony, political stability and economic prosperity to Hong Kong. It also attests to our successful passing the most rigorous litmus test under our 'one country, two systems' formula
The third case involved a protester attacking and stabbing a police officer, causing the escape of his prisoner and seriously wounding the officer. Thanks to our law enforcement efficiency, the culprit was arrested on the same evening on board a plane he had boarded to abscond to London. Here he could be prosecuted under Article 24 for participating in terrorist activities by causing serious violence against a person. It may well be that as a result of interrogation, he might confess his collusion with MI5 in the United Kingdom, which could explain his prompt escape route to the UK. If so, he might be further charged with an Article 29 offense for collusion with a foreign agency in conspiring with MI5 “directly or indirectly and received training, instruction, control, funding and other support”. If convicted, he would be liable to a minimum sentence of three years’ imprisonment up to the maximum sentence of life imprisonment.
And there are those who blocked traffic and engaged in vandalism, smashing shops and committing arson, while at the same time chanting blatantly illegal slogans and displaying flags or banners advocating revolution, secession and subversion. They had caused total vehicular and pedestrian traffic paralysis in Causeway Bay on a crowded holiday when many residents were out and about to patronize the shops and restaurants in the area and to take a breather from the COVID-19 lockdown. These anarchists must be prosecuted under the much more serious offense of Article 24 for “participating in terrorist activities, namely, sabotage of means of traffic, arson and other dangerous activities which seriously jeopardize public safety and security”. If convicted, they could be liable to life imprisonment or not less than 10 years in jail.
Police should also investigate whether anyone behind the scenes had “incited, assisted in, abetted or provided pecuniary or other financial assistance or property” for the protesters, and if so, they should be prosecuted under Article 21 for secession or Article 23 for subversion or Article 26 for terrorism. These nefarious masterminds or backbench supporters could be sentenced to a fixed-term imprisonment of not less than five years up to the maximum of 10 years. This should include some of the media, social media and public figures for inciting the public to join the public protest on July 1, or “provoking hatred amongst Hong Kong residents towards the government” (this offense actually exists in the Crime Ordinance).
Police would be greatly assisted by the additional investigative power rendered under Article 43, including power of search without judicial warrant and requirement of any person to furnish information or answer questions, and restricting suspects’ travel and freezing their assets and to carry out interception of communications or conduct covert surveillance upon approval of the Hong Kong chief executive. These investigative powers are essential and probably played a key role in enabling the arrest of the above-mentioned offender on board the plane just minutes before its departure. They are also consistent with the earlier success of the Independent Commission Against Corruption, as strongly recommended in my earlier op-ed article in this paper. These indispensable law enforcement powers should not be considered draconian as they are commonly practiced in all leading democracies for national security offenses.
Police should make full use of Article 33 by approaching these offenders, who are likely to receive mandatory sentences of a minimum three years up to life, with the offer of an opportunity for a reduction of sentence or even exemption if they can live up to the spirit of this article by “giving a truthful account of the offence” and “reporting on the offence committed by other persons, which can be verified to be true, or provides material information which assists in solving other criminal cases”. This is similar to the chief justice sentencing guideline issued in the 1970s, which enables defendants in corruption and organized-crime cases to have their normal sentence reduced by two-thirds if they are willing to identify and give evidence against their accomplices or mastermind.
If any of those arrested are not permanent residents of the HKSAR, consideration should be made under Article 34 to have them promptly deported to save the cost of investigation and prosecution.
Some District Council and Legislative Council members have been arrested in the protest. If they are convicted under the National Security Law, they would be barred from seeking elective office under Article 35. The same should apply to any civil servant arrested in the protest; namely, three customs officers, government teachers and nurses, as they would then forfeit their right to join the civil service again under this article.
Those arrested in the July 1 protest should face the court at the earliest opportunity, even under a holding charge for the national security offenses. This can be facilitated by having a specialized prosecutorial team appointed under Article 18 of the National Security Law to be stationed at the office of the police national security unit so that prompt legal advice can be obtained. This worked extremely well in the early days of the ICAC, when a special team of legal counsels were stationed in the Operations Department office and could provide legal advice service round-the-clock. Once these offenders are in court, as per Article 42, “no bail shall be granted unless the judge has sufficient grounds for believing that the defendant will not continue to commit acts endangering national security”. This special provision should tighten the current loophole in which some biased judges took a very liberal approach toward application of bail, thus allowing a number of key riot offenders to successfully abscond. The loophole is further covered as all defendants for national security offenses would be tried by a special panel of judges appointed by the chief executive under Article 44.
The July 1 public protest would also demonstrate that it would be an extreme rarity requiring the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region to exercise its enforcement power in Hong Kong, as our finest would take the opportunity to demonstrate that they are fully capable of enforcing this pivotal law on their own. In short, the mere existence of the new National Security Law itself should provide ample deterrence to anyone intent on continuing to cause social unrest as in the last 14 months.
July 1, 2020, will go down in our history as the dividing line between the days of indiscriminate street violence and citywide unrest, and the return of social harmony, political stability and economic prosperity to Hong Kong. It also attests to our successful passing the most rigorous litmus test under our “one country, two systems” formula. And just like so many earlier pundits who predicted before the handover the “demise” of Hong Kong, we quickly proved those who lost faith in this unique formula this time equally mistaken. It came on the following two days with a sharp upsurge of a total of 1,000 points in Hang Seng Index on the Hong Kong Stock Exchange, representing both the local and foreign unmistakable confidence in it that is being reinforced by the new National Security Law!
The author is an adjunct professor at HKU Space and a council member of the Chinese Society of Hong Kong and Macao Studies. He is a former deputy commissioner and head of operations of the ICAC.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS