A Hong Kong lawyer has quoted prominent Indian leader Mahatma Gandhi in a landmark appeal against the conviction and jail sentence of activist Tam Tak-chi under a since-repealed sedition law.
Hong Kong activist “Fast Beat” Tam Tak-chi. File photo: Etan Liam, via Flickr.
The Court of Final Appeal (CFA) on Friday heard its first challenge ever against a conviction and sentence under the colonial-era sedition law, which was repealed last March when Hong Kong enacted the Safeguarding National Security Ordinance – commonly known as Article 23.
The challenge was brought by former radio host Tam, also known as “Fast Beat,” who was found guilty and jailed for 40 months by the District Court in 2022 for 11 charges including uttering seditious words.
Tam was the first person to stand trial for sedition since the city’s return from British to Chinese rule in 1997. His prosecution came after authorities revived the colonial-era legislation following the enactment of a national security law in June 2020 that did not cover sedition.
The sedition offences under the Crimes Ordinance were displaced when Hong Kong enacted Article 23. The new security law raised the maximum penalty for sedition from two years in prison to seven years behind bars, or 10 if the offence was committed with “external forces.”
Court of Final Appeal. Photo: GovHK.
On Friday, the five-judge panel led by Chief Justice Andrew Cheung was tasked with reviewing two questions of law: are the sedition offences indictable offences that must be tried in the Court of First Instance before a judge and jury? Is the prosecution required to prove the defendant’s intention to incite third parties to violence or public disorder for the sedition offences charged in Tam’s case?
The three-hour hearing featured a complicated legal debate concerning the interplay of legislation, including provisions in the Beijing-imposed national security law, the Crimes Ordinance, the Criminal Procedure Ordinance, and the Magistrates’ Ordinance.
Tam’s lawyer, Senior Counsel Philip Dykes, argued that the District Court had no jurisdiction to try Tam’s case because sedition was an indictable offence and thus should have been handled by a higher court and be heard by a judge and a jury. Indictable offences are generally understood to be more serious than summary offences, which include crimes such as littering and careless driving.
Citing the Beijing-enacted law, Dykes said the top court had established in a previous case that sedition was an offence endangering national security. Cases concerning offences that endanger national security shall be tried on indictment, the lawyer said, pointing to Article 41 of the Beijing’s security law.
Philip Dykes. File photo: Supplied.
Representing the Department of Justice, prosecutor Anthony Chau had argued that sedition was a summary offence which could be transferred to the District Court by a magistrate. But after the judges repeatedly asked whether sedition became an indictable offence following the enactment of the national security law, Chau changed his stance.
The prosecutor said while sedition was an indictable offence, where these cases should be tried was a separate matter.
Concerning the prosecution’s need to prove an intention to incite violence in Tam’s case, Dykes argued that due to its common law origins, intention to incite violence was a necessary ingredient for the offence of sedition.
He went on to quote Gandhi, saying that people should enjoy the freedom to express disaffection for a person or system as long as they did not promote or incite violence.
“Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence,” the counsel said referencing a statement made by Gandhi in 1922 when he stood trial for sedition.
After hearing arguments from both sides, Cheung said the top court would reserve its judgement for later.
