Fu Kin-chi says the court’s judgment makes crystal clear that any act endangering national security will be severely punished by law

On Friday, the West Kowloon Magistrates’ Courts (acting as the High Court) handed down sentences in the case of the now-defunct “Hong Kong Alliance” and its former leaders Lee Cheuk-yan, Ho Chun-yan, and Chow Hang-tung, who were convicted of inciting subversion of State power. The group was fined HK$1.5 million ($191,285), to be paid in full within three months.

The court adopted seven and a half years’ imprisonment as the common sentencing starting point for the three defendants. Lee was sentenced to seven years’ imprisonment, Ho to five years and two months, and Chow to seven years and three months. This judgment demonstrates the authority of the Hong Kong SAR National Security Law (NSL), reflects judicial fairness, and is lawful, reasonable, and justified. It deserves the support of the general public.

The court’s sentencing rationale is well-founded and legally grounded. In its earlier statement of reasons for the verdict, the court pointed out that all defendants intended and believed that if those incited acted in accordance with their incitement, unlawful means would be used, and that the purpose was to subvert the State power led by the Communist Party of China.

The charge in this case alleged that between July 1, 2020 and Sept 8, 2021, the defendants incited others in Hong Kong to organize, plan, carry out, or participate in carrying out acts using unlawful means with the aim of subverting State power — that is, to overthrow or undermine the fundamental system of the People’s Republic of China (PRC) as established by the Constitution of the PRC, or to overthrow the central State power organs of the PRC.

Under Article 23 of the NSL, the maximum penalty for the offense of inciting subversion of State power is 10 years’ imprisonment in serious cases. The sentences in this case all fall within the statutory sentencing range, reflecting the rule-of-law principle that the punishment fits the crime.

Those with ulterior motives, such as the self-proclaimed human rights advocates, including Amnesty International, have often attacked the NSL under the guise of “freedom of speech”, attempting to confuse concepts and mislead public opinion. It is necessary to clarify the legal boundary between incitement offenses and freedom of speech.

Freedom of speech and related rights are not absolute rights; they must be limited by the requirement not to infringe upon national interests, public interests, and the rights of others. This is a universal principle, which apologists deliberately ignore.

Incitement offenses and normal expression of opinion are entirely different matters. The statements made by a perpetrator of an incitement offense are not merely the expression of personal opinion; rather, with a specific intent to harm society, the person actively incites others to carry out the criminal activities desired by the inciter, which completely exceeds the boundary of freedom of speech.

Over a century ago, Justice Oliver Wendell Holmes of the United States Supreme Court stated that “the most stringent protection of free speech would not protect a man in falsely shouting ‘fire’ in a theater and causing a panic”.

The NSL clearly stipulates three types of incitement offenses: inciting secession, inciting subversion of State power, and inciting the conducting of terrorist activities, with clear boundaries. The critics’ so-called “conviction for speech” deliberately blurs the legal boundary between freedom of speech and incitement offenses.

The international community legislates to punish incitement to subversion. In fact, both the pre-existing laws of Hong Kong and the laws of other jurisdictions contain provisions on incitement offenses. The current Crimes Ordinance of Hong Kong stipulates offenses such as “inciting mutiny”, “inciting disaffection”, and “inciting others to use violence”.

From an international comparative perspective, the maximum penalty for treason in the United Kingdom is life imprisonment; offenses related to treason in Japan may be punishable by death; and incitement to subvert state power (seditious conspiracy) under the United States Code carries a maximum penalty of 20 years’ imprisonment.

It can thus be seen that countries around the world severely punish incitement offenses that endanger national security, and the provisions of the NSL are consistent with the common practices of the international community.

The General Provisions of the NSL explicitly provide that in safeguarding national security, the Hong Kong Special Administrative Region shall respect and protect human rights and uphold the principles of the rule of law. The law clearly stipulates important criminal justice principles such as the presumption of innocence and the prohibition of double jeopardy, safeguarding the lawful procedural rights of criminal suspects, defendants, and participants in criminal proceedings.

Article 85 of the Basic Law of the HKSAR explicitly provides that the courts of the HKSAR shall exercise judicial power independently, free from any interference, and that members of the Judiciary shall be immune from legal action in the performance of their judicial duties. This is another fact the NSL critics conveniently overlook.

The trial and sentencing in this case were conducted entirely in accordance with legal procedures, and the claim of so-called “political prosecution” has no factual basis whatsoever.

The implementation of national security laws is intended to safeguard national sovereignty, security, and development interests, and to ensure Hong Kong’s long-term prosperity and stability.

Today’s judgment sends out a clear message: Any act endangering national security will be severely punished by law. The rule of law is a core value of Hong Kong, and safeguarding national security is the shared responsibility of all residents.

The author is a law professor, director of the Chinese Association of Hong Kong and Macao Studies, and president of the Association for the Promotion of Rule of Law, Education and Technologies.

The views do not necessarily reflect those of China Daily.