Pearls and Irritations

What Hong Kong faced was an insurgency, the overthrow of the government, nothing less. 

In 1815, China under the rule of the Emperor Jiaqing was at peace, but Britain, in the course of acquiring a great empire, was at war.

When, after the battle of Waterloo in June 1815, the Duke of Wellington, commander of British forces, was asked how he saw the outcome, his laconic reply was: “It was a close-run thing”.  

His foot soldiers, formed in squares, withstood the repeated onslaught of Napoleon’s fearsome cavalry. Not a single square broke rank. Discipline ultimately prevailed.

Transposing the scene from the heights of Waterloo in June 1815 to the streets of Hong Kong in November/December 2019, what do we see? The Hong Kong Police in serried ranks protecting property, safe-guarding lives, staying calm and restrained, withstanding onslaughts by assailants wearing protective gear, weapons-grade gas-masks, wielding sharpened iron rods, throwing petrol bombs. And they did this month after month.

I put myself in the place of the ordinary policeman. He had been doing this for more than 6 months. His name has been posted on social media; doxxing involved not only himself but also his children; they are bullied at school; the quarters where he lived have been fire-bombed; his wife is seriously frightened; and his mother-in-law says to him repeatedly: “Why do you protect other peoples’ property and not your own home, your own family?”

When ordered to make an arrest he is required to exercise “reasonable force”, whatever that means. The thug he is arresting knows no reason, no restraint. An arrest risks serious injury to himself; some of his colleagues have been injured and hospitalized. The thug carries no ID card. He will not disclose his name, will not cooperate in having his photo or finger-print taken. He will not accept police bail. He cannot be charged. So, after 48 hours he is released unconditionally, to repeat the same outrage the next weekend.

How close was Hong Kong to total collapse? This, we ordinary citizens, will never know. This is something the government, for obvious reasons, will never disclose. But, as an observer looking from the outside, I would say: “It was a close-run thing”.

All it took was for one police unit to break ranks, to say: “We’ve had enough”. The whole force would have collapsed. But discipline held; and for that the community should be forever grateful.

This, as I see it, is the true scenario against which the National Security Law should be viewed. The rest is creative fiction crafted to put the Hong Kong government in the worse possible light. 

What Hong Kong faced was an insurgency, the overthrow of the government, nothing less. 

The insurgents made the classic mistake of the cowardly, of the school-yard bully. They took the government’s low-key response, its restraint, as signs of weakness. So, for a few months, their leaders strutted on the stage as if they owned the whole show. They attracted the label of “freedom fighters” and got themselves onto the cover of Time magazine. They took no responsibility for the misery they caused to millions of their fellow citizens, and the billions of dollars of damage they inflicted, to be paid for by Hong Kong tax-payers.

What happened on Sunday 18 August 2019 is a good example. The police had raised no objection to a mass gathering in Victoria Park, provided the organizers arranged for 200 marshals to control the crowd; but the police objected to a procession to Central and a further mass gathering there. In open defiance of the law the leaders raised a huge banner and led a procession down the highways to Central, vaunting their impunity from the law. So filled were they with their own sense of triumph that they forgot the inherent strength of the law; that the law has long arms.

In retrospect, it can be seen that the seeds of insurgency were laid many years before. As Professor Cullen recently explained, much of the world had been dominated by the notion of Western ascendancy for some 200 years. China’s decline in the late Qing Dynasty had been accelerated by Western belligerency.

But, after WW2, the balance began to shift. The USA, for all its awesome fire-power, met stale-mate in Korea, defeat in Vietnam and expulsion in Cuba.

Then came the astonishing rise of China after the end of the Cultural Revolution in the early 1980s. The tectonic plates began to shift, but there was no change in Western thinking: it clung tenaciously to the notion of Western ascendancy. One aspect of this, as Prof. Cullen puts it, is “turbulent pushback from an unnerved Western media”; this “pushback” reflects the stance of the Western powers clinging to its assumed ascendancy.

With the break-up of the Soviet Union in the early 1990s, China was seen, more and more, as posing a threat to the dominance of the West. How to counteract that? Destabilize Hong Kong was one answer.

The thinking seems to run along these lines: China stands today as a strong homogenous nation-state; but it wasn’t that long ago that China was splintered into separate fiefdoms dominated by warlords. Well, maybe, its territorial integrity could be broken up again. 

If the stirrings of industrial action in the late 1980s, in a lousy little shipyard in Gdansk – a small port on the Baltic Sea – could lead to the eventual breakup of the Soviet Empire, why wouldn’t the seeds of insurgency, sown in Hong Kong, do the same thing to China’s territorial integrity?

The signs of such a movement are everywhere to be seen.

We need to look no further than at how the controversy surrounding the National Security Law arose.

As everyone knows, the Basic Law (Article 23) required the Hong Kong SAR, on its own, to enact laws to prohibit treason, secession, subversion etc. The laws in the statute books, inherited from colonial times, scattered over 3 Ordinances, were plainly unfit for that purpose.

So, 5 years after reunification, the government issued a consultation paper on proposals to implement Article 23. It made out a strong case. This is what it said:

“All countries round the world …..have express provisions on their statute books to prevent and punish crimes which endanger the sovereignty, territorial integrity and security of the state. Therefore, while nationals of a state enjoy the privilege of protection provided by it on the one hand, the individual citizens have a reciprocal obligation to protect the state by not committing criminal acts which threaten the existence of the state, and to support legislation which prohibits such acts on the other hand.”

The proposals took into account the whole range of constitutional guarantees of personal freedoms: speech, expression, the press; and freedom from arbitrary arrest, sanctity of the home, etc.

All thinking persons would have realized that to implement Article 23 was an absolute necessity. The Central Government had entrusted this to the Hong Kong SAR; it was a considerable responsibility.

What was needed was not a regional security law; it was a national security law, affecting not only security within the region, but nationally. To emphasize Hong Kong’s high degree of autonomy, this law was to be enacted by the SAR “on its own”. 

When the National Security (Legislative Provisions) Bill was introduced in LegCo in February 2003 one would have thought that all community leaders would have given it their support. If there were flaws in its details these could be ironed out in Committee.

There was no rational basis for a total rejection of the Bill. There was only one possible alternative to the enactment of the law by the local legislature: its promulgation by the Central Government.

But misinformation got to work in the social media. People’s passions were aroused. Dark forces were at play to defeat the Bill.  It failed to pass.

Fast-forward to early 2019, the controversy surrounding another piece of legislation, the Return of Fugitive Offenders (Amendment) Bill. 

The international community was much concerned at that time about cross-country crimes, money-laundering and terrorist financing. To align Hong Kong with other developed economies, it was necessary to upgrade the existing Ordinance: hence the amending statute. 

A scare campaign was mounted through social media. The Bill was portrayed as allowing Mainland agents to grab people off the streets of Hong Kong and bring them for trial across the border. 

Trouble in the streets erupted, turning into the most damaging unrest Hong Kong has ever seen.

This is what Mr C H Tung (former Chief Executive) said in May 2019:

“As Hong Kong had failed to enact its own security legislation for over 20 years, it had become an easy target for hostile foreign opportunists to disrupt public order, using Hong Kong in effect as a proxy for a wider power conflict”.

On Wednesday 12 June 2019, an organized group of rioters outside the fenced perimeter, fighting to get into the LegCo building, forced the suspension of the second reading of the Bill.

Three days later the government announced the withdrawal of the Bill.

The speech made by the Chief Executive was calculated to calm nerves and dampen passions. It was a model of restraint and humility. She said:

“I want to stress that the original purposes of the exercise stem from my and my team’s passion for Hong Kong and our empathy for Hong Kong people. I feel deep sorrow and regret that the deficiencies in our work and various other factors have stirred up substantial controversies and dispute in society following the relatively calm periods of the past two years, disappointing many people. We will adopt the most sincere and humble attitude to accept criticisms and make improvements so that we can continue to connect with the people of Hong Kong”. 

That, surely, would have satisfied demands of the protesters. Their aim had been achieved; the withdrawal of the Bill. 

But not at all, showing beyond all doubt that the movement had much darker roots.

Monday 1 July was a public holiday, to celebrate Hong Kong’s reunification with the Mainland. On that day an organized group broke into the LegCo building and trashed the Legislative Council chamber. The Chinese national emblem was defaced; the Hong Kong colonial flag was raised. The rioters had declared war on the government, on the existing constitutional order.

It was also a war on democracy, just as it was in 1933 when Hitler’s thugs burned the Reichstag. This was the moment for the veteran leaders of the democratic movement, and the “pro-dem” members of LegCo, to distance themselves from the movement, to condemn the acts of violence and desecration. No one did, thereby allying themselves inextricably with the violent segment of the movement.

Fast forward again to 11-12 July 2020, soon after the enactment of the National Security Law. Various agitators had got together to mount what they called “primary elections” to find the best candidates for the LegCo elections due to take place later that year. They have since been arrested on suspicion of subversion under the new law.

In a report to Parliament this month the British Foreign Secretary Dominic Raab said that the National Security Law was being used “to stifle political opposition”.

It seems, sadly, that the Foreign Secretary had not been told the full facts; or is it possible that someone of that standing would knowingly distort the truth?

Most of the truth of that story is on public record. The “primaries” were simply a small part of a larger plot calculated to bring down the government. This was described as “10-steps to mutual destruction”, which had been outlined in Apple Daily in late April 2020. The label attached to this plot is “LaamChau” meaning “We Burn, You Burn”, an expression taken from a popular TV series. It was, on its face, a last desperate attempt by the insurgents to bring down the government.

The full facts have not been revealed. Investigations are still going on. The case has not yet come on for trial.

What, for instance, was put to the voters to induce them to come out and vote in the “primaries”?  Probably different things were said to different constituents, and there may be questions as to the truthfulness of what was said. According to the police, the voters were paid substantial sums to take part in the process. Arising from this, HK$1.6 million have been frozen. The significance of this will need to be explored.

Under such circumstances, how could it possibly be right for the British Foreign Secretary to assert that the National Security Law is being used “to stifle dissent”?

As things stand today, there is a Bill in the British Parliament entitled “Police, Crime, Sentencing and Courts Bill 2021”. It is meeting with considerable opposite from ordinary citizens, who have launched street protests. This is what the policy paper says:

“Protests are an important part of our vibrant and tolerant democracy. Under human rights law, we all have the right to gather and express our views. But these rights are not absolute rights. That fact raises important questions for the police and wider society to consider about how much disruption is tolerable, and how to deal with protesters who break the law. A fair balance should be struck between individual rights and the general interests of the community …..”

Section 59 of the Bill, for instance, abolishes the common law offence of public nuisance and replaces it with a statutory offence of very wide scope, attracting 10 years imprisonment on indictment.

Would it be right for, say, the Hong Kong Chief Secretary to comment on this provision, or on how the “fair balance” should be struck in the UK? Obviously not. So how is the reciprocal position justified?

What is more, the National Security Law deals with something more fundamental than the so-called “fair balance”. It arms the Hong Kong government, for the first time since reunification, with effective legislation to deal with an insurgency.

The law starts with statements of general principles where the lawful rights and interests of Hong Kong residents are fully protected. The common law principles governing criminal trials are safe-guarded including, for instance, the presumption of innocence, the exclusion of prejudicial evidence, etc.

If one looks at, for instance, the US Patriot Act 2001, the contrast with Hong Kong’s national security law is stark.

It is an Act to deter and punish terrorist acts in the USA and around the world. It is extremely difficult to judge from the text of the law its overall effect. It is not only an enabling Act but also an amending Act, amending many other enactments; unless one is familiar with those other enactments it is not possible to make sense of the Act.

But its introduction paragraph is startling. It says:

“Any provision of this Act ……..as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability in which event such provision shall be deemed severable from this Act ….”.

No mention of the presumption of innocence. No safe-guard for the rights of the defendant.

The repeated accusations made by Western leaders and media of Beijing’s so-called stifling of freedoms in Hong Kong through use of the National Security Law is so far from reality that the conclusion is inevitable: as Mr C H Tung said, Hong Kong is being used as a proxy for a wider power conflict.

Editor’s note: The following are remarks of Henry Litton at the Hong Kong National Security Law Legal Forum hosted by the Department of Justice, on Monday, July 5, 2021.

Henry Litton CBE, GBM is a retired permanent Judge of the Hong Kong Court of Final Appeal. Litton founded the Hong Kong Law Journal in 1971. In 2019, Litton published the book ‘Is the Hong Kong Judiciary Sleepwalking to 2047’ in which he criticised numerous aspects of Hong Kong’s legal system, focusing particularly on the misuse of judicial reviews in recent years.