On November 11, 2020, the National People’s Congress Standing Committee (NPCSC) adopted a resolution whereby members of the Hong Kong Legislative Council immediately lost their seats if, in violation of their oaths of office, they were deemed to have engaged in various nefarious activities. These included endangering national security, asking foreign powers to interfere in the city’s affairs, refusing to support China’s sovereignty over Hong Kong, or failing to uphold the Basic Law and honor the pledge of allegiance to the Hong Kong SAR. The resolution, backdated to July 30, covered anybody who had taken the Legislative Council’s oath and then, while serving, violated its terms.
In consequence, four legislative councilors, who had previously, on July 30, been adjudged by the Returning Officers to have been unfit to stand in the subsequently postponed Legislative Council elections scheduled for September 6, 2020, were expelled. They were deemed unfit as they did not satisfy the eligibility criteria in terms of their declarations to uphold the Basic Law and pledge allegiance to the city. Among the reasons given by the Returning Officers were national security concerns and calls for foreign governments to interfere in China’s affairs.
The ousted legislators were the Civic Party’s Alvin Yeung Ngok-kiu, Dennis Kwok Wing-hang (“Kwok”), Kwok Ka-ki and accountancy sector lawmaker Kenneth Leung Kai-cheong. Although the National Security Law, which was enacted on June 30, is not retrospective, Yeung and Kwok Ka-ki have since been charged with subversive activities which allegedly occurred thereafter, and they stand accused of involvement in a plot to paralyze the Legislative Council and provoke a constitutional crisis. But although the new law is not retroactive, any offenses committed at an earlier time under the general criminal law are still prosecutable.
On April 10, it was reported that Kwok is being investigated by the Hong Kong Police Force for possible misconduct in public office. However, it has now transpired that he left the city last November, and is living in Canada, with his family. On April 13, he announced on social media that he was resigning from the Civic Party, apologizing for any inconveniences he had caused. According to a police source, the alleged offense will still be investigated, which is as it should be, as a crime does not cease to be a crime simply because a suspect has fled, and there may still be other culprits within the jurisdiction.
At this meeting, “Alvin and Dennis expressed their support towards the ‘Hong Kong Policy Reevaluation Act 2019’ and ‘Hong Kong Human Rights and Democracy Act 2019’”. Both laws were subsequently enacted, and this resulted in Hong Kong being stripped of its preferential trading status with the US, thereby endangering jobs, and in its officials being sanctioned
As police pursue their lines of inquiry, several possible areas of misconduct will require careful scrutiny, concerning not only Kwok but also his confederates. As good a starting point as any is September 2, 2019, which was the date that five lawmakers, Kwok, Yeung, Kwok Ka-ki, Jeremy Tam Man-ho and Tanya Chan Suk-chong, wrote to the leaders of both the Republican Party and the Democratic Party in the United States House of Representatives and Senate, encouraging their intervention in Hong Kong affairs.
At a time when the US Congress was considering the Hong Kong Democracy and Human Rights Act, they urged the Americans to ensure “the swift passage of the Bill into law as soon as possible”. The principal feature of this law, since enacted, was to empower the US President to impose sanctions on Hong Kong and Chinese mainland officials, including the freezing of their assets and their exclusion from the US, which, of course, has since happened. As Kwok and Yeung had visited the US the month before, they were apparently hoping to leverage on their contacts there.
Indeed, while they were in the US in August 2019, Kwok and Yeung held various meetings, designed to harm Hong Kong and its officials. As explained in the press statement issued by the Civic Party on August 28, 2019, they attended a meeting of the Asia Society in New York, and condemned “the police’s abuse of powers and brutality during the anti-Extradition Bill protests”. Thereafter, it states, “Alvin urged international organizations to inform relevant countries so that they would cease exportations of crowd control agents and provisions of trainings (sic) to Hong Kong Police Force”. In other words, Yeung, with Kwok at his side, wanted to deny the police force access to the equipment it required to combat the insurrection then terrorizing Hong Kong, and to stop inter-force exchanges and support, although this was just the start.
After leaving New York, the press statement disclosed, the pair went to Montana, to attend the first “Hong Kong United States Legislative Exchange”, together with fellow legislators James To Kun-sun and Ip Kin-yuen. This, however, was no ordinary event, and they were “invited by the Department of State to attend”. At this meeting, “Alvin and Dennis expressed their support towards the ‘Hong Kong Policy Reevaluation Act 2019’ and ‘Hong Kong Human Rights and Democracy Act 2019’”. Both laws were subsequently enacted, and this resulted in Hong Kong being stripped of its preferential trading status with the US, thereby endangering jobs, and in its officials being sanctioned.
Back in Hong Kong, Kwok, as deputy chairman of the Legislative Council’s House Committee, was required to preside over its meeting to elect a new chairman in October, which could have been done within an hour. But instead of enabling the election, Kwok, aided and abetted by his Civic Party colleagues, prevented the election from taking place during 17 meetings spread over 7 months. To waste time, Kwok allowed opposition lawmakers to speak on unrelated issues, without time limitation. His purported justification was that if he did not obstruct things the government might seek to “railroad” through controversial laws, like national security legislation and the national anthem law, both of which Hong Kong was constitutionally obliged to enact. In consequence, there was legislative gridlock, with 14 bills and 89 items of subsidiary legislation being blocked, many affecting people’s livelihoods. Although the deadlock was finally broken on May 18, no thanks to Kwok, his was an unprecedented move to paralyze the Legislative Council, and to prevent it from discharging the legislative functions required of it under the Basic Law (Art.73).
When they evaluate all this evidence, the police will need to determine if a legislator who urges a foreign power to enact laws which will harm his home city and its officials, or who prevents the Legislative Council from functioning for months on end, might have committed misconduct in public office, and the answer is clear. This offense, which has five elements, does not, unlike bribery, require cash payments or other advantages, and is aimed at people who abuse their public positions, which can include parliamentarians. In 2005, the Hong Kong Court of Final Appeal decided that the offense occurs when a public officer, in the course of or in relation to his public office, willfully misconducts himself, by act or omission, for example, by failing to perform his duty, without reasonable cause, or justification, and the misconduct is serious, not trivial (FACC 14/2004).
Although Kwok has long since fled, his confederates have not. Indeed, Yeung, Tam and Kwok Ka-ki are currently in custody on subversion charges. While the fifth signatory to the US Congress letter, Tanya Chan, is believed to be still within the jurisdiction, so also are James To and Ip Kin-yuen, who attended the Montana meeting. It may be that at least one of these individuals will be prepared to give evidence against the others as a prosecution witness, but the actions of all of them create suspicions which the police will need to investigate.
As for the Civic Party itself, it is now a busted flush. By crossing Beijing’s red lines, Kwok and Yeung, its leading lights, probably did more than anybody else to make the enactment of the national security law unavoidable and electoral reform inevitable. Indeed, after their arrests for subversion, Yeung, Jeremy Tam and Kwok Ka-ki all quit the Civic Party, and, on April 14, it was announced that they had also called for its dissolution, as it had “already completed its historic mission”. Insofar as that “historic mission” involved undermining the “one country, two systems” policy, colluding with foreign powers, and creating the circumstances in which Beijing-imposed national security legislation became necessary, this was certainly true, and the sooner this sorry entity can be laid to rest the better.
Although the party chairman, Alan Leong Kah-kit, is reportedly trying to keep the party going, it is past saving and deserves to be put out of its misery. The Civic Party and its lawmakers have done untold harm to Hong Kong, and its demise is long overdue. The least Leong can do now is to administer the last rites, although he may also need to have an exorcist on hand.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
