A former Hong Kong legislator from the Civic Party, Jeremy Tam, recently applied for bail in the High Court of the Hong Kong Special Administrative Region (HKSAR). Mr Tam has been charged with subversion under the new National Security Law (NSL) which has applied in the HKSAR since July 1, 2020. The NSL was drafted for the HKSAR by Beijing as a direct response to the exceptionally violent and destructive multi-month insurrection, which began in mid-2019.
Under the NSL, bail can be granted but the court must be satisfied that there are sufficient grounds for believing that anyone charged will not continue to commit acts endangering national security.
High Court Judge, Esther Toh, rejected this bail application. Her reasons for doing so have recently been made public. She noted, based on evidence submitted for Mr Tam, that he had been invited by the US Consul-General in the HKSAR on at least three occasions between December 2020 and February 2021 (after the application of the NSL) to “catch up” for coffee and a chat. Mr Tam argued that he had ignored the invitations but the judge saw the persistent invitations as evidence that Mr Tam remained an influential person of interest to a foreign power.
Judge Toh also noted how Tam had written to the US Congress – along with other Hong Kong opposition legislators – in September 2019, at the height of the insurrection, calling for US sanctions to be applied to the HKSAR.
The author Michael Hudson recently reminded us of some central precepts from The Prince by Machiavelli. One of these is to allow a rival State to live under its own laws – but to establish critical influence within to ensure it remains friendly.
Prior to the handover of Hong Kong to Beijing by London in July 1997, the US sway in Hong Kong was secure and highly influential. Washington seemed, regularly, to regard Hong Kong in a semi-proprietorial way, as some sort of highly successful, Far-Eastern Puerto Rico. The Consul-General’s office has long maintained a very substantial staff, given the size of Hong Kong. Some estimates (denied by the US) have put the number at over 1,000.
The British laws limiting security service operations in Hong Kong were dated – though the British hardly needed to apply them to MI6 during their colonial tenure. The remarkable doyen of the Hong Kong Foreign Correspondents Club, the Australian, Richard Hughes, was widely believed (not least by John le Carre) to be holding down a second job as a British secret agent over several decades. Nor were these laws applied to the CIA. Until very recently, they remained the only national security laws in the HKSAR. They posed inadequate deterrence. In a real sense, Hong Kong was “Vegas for spies”, until the NSL shut down this sunny situation in mid-2020.
Although securing detailed verification of active US (and allied) support for the 2019 protest movement – and associated insurrection – can be challenging, confirming evidence is steadily emerging.
In June, 2020, Time in the US reported that the Trump Administration had frozen American public funding of US$2 million intended to benefit Hong Kong protestors. These were funds being channeled through the US Agency for Global Media (AFGM). This information emerged following an ill-tempered Trump initiative to sort out the AFGM, whose card the President had marked.
Alex Lo elaborated on these revelations in the South China Morning Post soon after this story broke. One arm of AFGM is the Open Technology Fund (OTF) which had donated almost US$3 million to help develop the encoding system which underpins the encrypted messaging app, Signal, widely used by Hong Kong protestors and rioters. The additional US$2 million was to help enhance messaging security in Hong Kong and to set up a “rapid response fund”. Libby Liu, the former Chief Executive of the OTF confirmed that: “We had several projects housed in Hong Kong – we can’t help [people in the HKSAR] get ready if we can’t be in business.” Lo concluded by observing that the funding he outlined was “probably just the tip of the iceberg.”
Veteran local columnist and author, Nury Vittachi, whose work is widely read, has set out the most cogent case, so far, explaining the extent of US-led external support for the 2019 insurgency in his new book, The Other Side of the Story: A Secret War in Hong Kong (“A Secret War”).
A Secret War identifies three US-supported organizing groups which were directly involved in the 2019 unrest: The Oslo Freedom Foundation; the Albert Einstein Institute and the Centre for Applied Nonviolent Action and Strategy. All three, it is said, assisted with related training and guidance for Hong Kong activists. Vittachi maintains that these groups were producing relevant training materials by 2013 and, at the same time, were promoting themselves as “revolution consultants”.
In an interview late last year, Vittachi noted that US-related organizations, including the OTF, had provided at least US$640,000 to the protest movement in 2019. He added that public records showed how the National Endowment for Democracy (NED) had sent over US$21 million to the Mainland and to Hong Kong since 2014, to advance the cause of democracy.
American Private Volunteer Organizations (PVOs) were widely active after World War II in promoting US-style democratic institutions offshore. The NED Website itself openly, if somewhat bashfully, notes that certain predecessor PVOs were covertly funded by the CIA through until the 1960s. The NED was established by Congress in the early 1980s and took over this funding role.
A Secret War also explains how a new, US-backed, Confederation of Trade Unions (CTU) was established in Hong Kong in 1990, to rival the existing Federation of Trade Unions, founded in 1948. Vittachi lists a donation of US$260,434 made to the CTU in 2003, when another major, peaceful, protest movement was afoot in the HKSAR. He notes that “Although the sum was listed [by the CTU] as gift from the American Center for International Labor Solidarity, it appears in US government files as a donation from CIA-founded NED.”
Abductive (“Duck Test”) reasoning can also assist in this assessment. First, it is hardly a coincidence that, as the insurrection in Hong Kong gathered highly destructive pace, the US was ramping its worldwide, confrontational campaign to suppress the rise of China, using an increasingly wide set of measures. Next, in 2005, the Global Policy Forum listed US Military and Clandestine Operations in Foreign Countries from 1798 to 2004 (see: https://archive.globalpolicy.org/us-westward-expansion/26024-us-interventions.html.). There are over 180 entries and more than 65 since the end of World War II. This list does not cover the ill-famed “Arab Spring” period. American exceptionalism is well established here: no other nation comes close to the US in any tabulation, over time, of such activities.
Very shortly after Judge Toh’s reasoning was reported, the US State Department issued a strongly worded defence of its diplomats in Hong Kong. The South China Morning Post report explains that the State Department spokesman took particular exception to the use of the term “foreign power” by Judge Toh. This was described as “an old propaganda trope used by authorities to shift blame and avoid accountability.” This is extraordinary. Here we have a “foreign power” (that is what the US is) accusing a High Court judge in Hong Kong of being, in effect, a purveyor of propaganda in order to help secure a judicial outcome.
These comments, exhibiting prima facie contempt for the court, would have been far better left unsaid. This level of scornful protest is not only inspirationally undiplomatic: it also confirms that a nerve has been touched. It sends a lucid signal intimating just how extensive that active participation may have been and adds contextual validation to the reasoning applied by Judge Toh.
Richard Cullen is an Adjunct Professor in the Faculty of Law at the University of Hong Kong. He was previously a Professor in the Department of Business Law and Taxation at Monash University in Melbourne, Australia.
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