Hong Kong activist Tam Tak-chi to appeal sedition conviction in top court next January
Hong Kong Free Press
Hong Kong’s top court has given the green light to detained pro-democracy activist Tam Tak-chi to challenge his conviction and sentence under a since-repealed sedition law next January.
The Court of Final Appeal on Wednesday granted leave to appeal to the former radio host, who was fined and jailed for 40 months for 11 charges including uttering seditious words in April 2022. The hearing was scheduled for January 10.
The landmark appeal will mark the first time the sedition law has been challenged in the top court. Tam, who was absent from Wednesday’s hearing, 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 after Beijing imposed a national security law in June 2020 that did not cover sedition.
The sedition offences under the Crimes Ordinance were repealed earlier this year, when Hong Kong enacted the Safeguarding National Security Ordinance in March. Commonly known as Article 23, the new security law raised the maximum penalty for sedition from two years in prison to seven years behind bars.
On Wednesday, Justices Roberto Ribeiro, Joseph Fok and Johnson Lam agreed to let Tam advance his appeal bid to the apex court and argue whether the sedition offences under the Crimes Ordinance were offences that must be tried in the Court of First Instance by a judge and jury.
Tam’s lawyer Philip Dykes told the judges that Tam had been tried in the District Court, which he argued had no jurisdiction in the case. He went on to say that it would cause “grave injustice” to the activist if his appeal was not heard.
Dykes previously cited a judgement from the Judicial Committee of the Privy Council in the UK handed down last October to argue that sedition was a common law offence and could not be transferred to District Court for trial.
Tam’s team will also argue in the hearing in January whether the prosecution had to prove that the defendant intended to incite others to perform acts of violence or public disorder. As a common law offence, sedition should contain an intention to incite violence as a necessary element, Dykes said previously.
Representing the government, Deputy Director of Public Prosecutions Anthony Chau argued that an appeal concerning the repealed provisions would have “limited application and utility.” There were many cases that had been taken to the courts under the sedition law, but only three were still ongoing, he said.
Tam’s appeal bid began at the High Court, which rejected his challenge in March. He obtained a certificate from the Court of Appeal last month, which allowed the activist to take his legal challenge to the top court.
Proceedings in other sedition cases have been postponed pending the progress of Tam’s legal challenge. Among them was the high-profile case involving Chung Pui-kuen and Patrick Lam, two former top editors of online media Stand News.
The pair were arrested in December 2021 and stood trial in October 2022. A verdict in the closely-watched trial which has fuelled concerns about the city’s press freedom was originally expected last November, but was delayed pending the outcome of Tam’s earlier appeal. In April, the verdict was again delayed until August 29, although that could be further postponed following Wednesday’s hearing.
Tam is currently detained pending sentencing in a national security case relating to 47 democrats. He could face up to life in prison for the offence of conspiracy to commit subversion in connection with an unofficial legislative primary election held in July 2020.
Separate to the 2020 Beijing-enacted security law, the homegrown Safeguarding National Security Ordinance targets treason, insurrection, sabotage, external interference, sedition, theft of state secrets and espionage. It allows for pre-charge detention of to up to 16 days, and suspects’ access to lawyers may be restricted, with penalties involving up to life in prison. Article 23 was shelved in 2003 amid mass protests, remaining taboo for years. But, on March 23, 2024, it was enacted having been fast-tracked and unanimously approved at the city’s opposition-free legislature.
The law has been criticised by rights NGOs, Western states and the UN as vague, broad and “regressive.” Authorities, however, cited perceived foreign interference and a constitutional duty to “close loopholes” after the 2019 protests and unrest.
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