How did a Hong Kong judge find media outlet Stand News a seditious ‘tool’ to smear Beijing?
Hong Kong Free Press
In a landmark judgement handed down last week, a Hong Kong judge found that independent online media outlet Stand News had become a tool to smear and vilify authorities in Beijing and the city during the 2019 protests and unrest.
The District Court last Thursday found former Stand News editors Chung Pui-kuen and Patrick Lam, and the outlet’s parent company Best Pencil, guilty of “conspiracy to publish and reproduce seditious materials.” It was the first such conviction of journalists since Hong Kong returned to Chinese rule in 1997.
In his 127-page Chinese judgement, Judge Kwok Wai-kin outlined the reasons why he deemed 11 articles published by the now-defunct outlet to be seditious and why six others presented by the prosecution were not proven as such. He also explained why he found the contention that those articles were only a fraction of Stand News’ entire coverage did not constitute a defence.
“The line [Stand News] took was to support and promote Hong Kong local autonomy. It even became a tool to smear and vilify the Central Authorities and the [Hong Kong] Government” during the protests in 2019, Kwok wrote.
Among those articles deemed seditious, nine were op-eds that criticised the government and a national security law imposed by Beijing following the protests in 2019. The judge said the commentaries created “potential damage” to national security in light of the “extremely heated” political atmosphere at the time and widespread discontent with the authorities.
Op-eds such as those no longer exist in Hong Kong “because people have already self-censored,” said Francis Lee, a media scholar at the Chinese University of Hong Kong (CUHK). “It’s not like you still have to deal with that kind of article.”
As a result, the verdict may not have an immediate impact on how the news media operates in the city, Lee told HKFP by phone. But the judgement raised more questions than answers, he said.
“The common understanding of Hong Kong journalists is that if society and the people have really strong grievances, then the role of the media is to reflect those grievances,” Lee said. “[The intention is] not to trigger them to action, not to further fan the flames.”
“But the judge obviously in the verdict had a very different logic.”
‘Explode a powder magazine’
Kwok, one of the judges handpicked by the city’s leader to adjudicate national security cases, ruled that people could be found guilty of sedition if they were reckless to the consequences of publishing seditious materials.
He acknowledged he was overturning an earlier judgement he made in a separate sedition case against five speech therapists over a series of children’s books. In that ruling, Kwok said the offence must involve intentionally inciting others.
The judge said media workers should act “in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism,” citing a guide on human rights prepared by the Council of Europe.
But he also said the “marketplace of ideas,” a concept that Chung referred to in his testimony while defending his decision to publish diverse viewpoints, could be distorted by speech, propaganda, and misinformation.
Kwok said the sedition offence must be considered in light of the “surrounding circumstances,” such as whether it was a time when “a spark will explode a powder magazine” – a phrase he borrowed from a 1909 British judgement in a seditious libel case.
Citing opinion polls figures released by local universities, Kwok said around 60 per cent of residents had distrusted the government from the early days of the 2019 protests, which were sparked by a later withdrawn extradition bill. As the protests developed, the judge said, protesters had become more radical and anti-government while the localist group had grown in strength and size.
From the start of the unrest, “not a few protesters” had opted for violent means to achieve their political demands, he said.
Drawing on a survey conducted by CUHK, Kwok noted that the general public had displayed solidarity with protesters even as some of them had escalated violence.
He called violent protesters “unrestrained” at the time because of the support they received from political parties and residents.
The “resistance camp” won a landslide victory in that year’s district council election despite violent incidents such as clashes between police and protesters at CUHK and the Hong Kong Polytechnic, as well as a man being set on fire and another killed by a flying brick, he said.
“Stance came first and goals were prioritised without regarding the means. I am certain that the age of populism descended on Hong Kong at that time,” Kwok wrote in Chinese.
The judge also rejected the defence’s claim that society had returned to normal after the security law came into force in June 2020.
He said the “yellow economy circle,” a loose alliance of pro-democracy shops and businesses in the city, had emerged and more than 610,000 residents voted in a primary election in July 2020 despite officials warning of potential breaches of the security law.
Kwok cited events such as the stabbing of a police officer by a man who then killed himself in July 2021, a motion praising the attack passed by the University of Hong Kong students’ union, and the arrest of teenagers over a bomb plot. These demonstrated popular discontent behind the apparent calmness in society, he said.
During the period of the offence by Stand News from July 2020 to December 2021, opinion polls showed that between 2 million and 4 million residents of the total 7.5 million population of the city harboured distrust towards Beijing, Kwok said, adding polls had found that Stand News was the most credible online news outlet in the city.
The judge concluded that Stand News had an “extremely huge influence” from 2019 until its closure in December 2021, and the level of distrust among residents toward Beijing was still high at that time.
11 seditious articles
Kwok ruled that 11 out of 17 articles presented by the prosecution carried a seditious intention.
He deemed all nine commentaries flagged by the prosecution to be seditious, including four pieces written by veteran journalist Allan Au.
The judge said Au’s articles had caused potential damage to national security against the background of the social unrest and the unstable public opinion.
For example, Kwok said Au had provided “no objective basis” in his criticism of the Beijing-imposed security law. In the piece, Au described the law as giving authorities “unlimited power.”
“The whole [commentary]’s allegations against the national security law had no substantial basis other than complaints. He didn’t even point out if there were any unusual articles in the security law as compared to legislation in other countries,” Kwok said. “I believe he could not even do that.”
Another three pieces written by ex-lawmaker Nathan Law, who is now overseas and wanted by national security police, were also said to have made unfounded allegations about the security law.
Law also claimed in one of the pieces that protesters had been subject to “unreasonable suppression,” while some had gone missing or been assaulted.
Kwok said Law’s claims were groundless and the former lawmaker intended to incite hatred and anti-government sentiment through misinformation, thus encouraging prolonged resistance against the government.
A profile of since-detained activist Gwyneth Ho and a feature story about the CUHK clashes were also found to be seditious.
In the interview, Ho, who was formerly a Stand News reporter, elaborated on her political ideas of “mutual destruction” with the Chinese Communist Party and called for continued resistance as she campaigned for the July 2020 primary election.
Kwok said the article would induce a “strong enmity” among readers against Beijing and the city’s government, and would challenge their legitimacy.
The judge also said the feature story about the CUHK clashes included unfounded criticism by two anonymous interviewees claiming to be alumni, who said police operations had damaged academic freedom at the institution.
In addition, Kwok found a video embedded into the report featuring slogans and visual elements of the protests was intended to “reignite the violent resistance that had cooled down.”
Regarding the remaining six articles, the judge said there was insufficient evidence to suggest they were seditious.
For example, in an interview with Owen Chow, Kwok said the now-jailed activist had spent more time in the interview complaining about the pan-democrat camp than he did about the government.
An article that cited criticism from jailed activist Chow Hang-tung of the Communist Party’s “crackdown on democratic systems” was considered legitimate news reporting.
‘Debatable’
Lee of CUHK said the judge had directed his scrutiny mostly toward commentaries, and news reporting was not the focus in the judgement.
“The judge is basically trying to say, some of the claims made in those [commentary] articles are groundless,” he said. “Phrases like ‘disparaging’ actually appeared quite frequently in [the judgement].”
“But if we actually look closely, are those claims really groundless? Then it becomes debatable, to say the least,” he added.
Lee said opinion writing – by its very nature – would involve interpretation and inference: “It’s natural, and almost necessary and inevitable, that the commentator will try to interpret, elaborate, and make inferences, based on those facts.”
“Whenever we read a commentary article, we can argue whether this is an over-interpretation. But an over-interpretation does not mean being groundless,” he said.
The scholar said “strongly-worded” commentaries that criticised the government would be most at risk of breaching the law based on Kwok’s reasoning.
But he also noted that Kwok’s judgement had gone to great lengths to establish the prevalence of anti-government sentiment among residents at the time of the offence.
“So the logic goes, according to the judgement … if you say something bad, if you say something critical about the government, or if you spread some misinformation, the public will easily believe it [and] be triggered,” Lee said.
“But, from the point of view of media workers, they are merely reporting on social sentiment. It can’t be the case that when the whole of society is negative, then you deliberately say something positive. That’s not common sense, at least to journalists in Hong Kong.”
Lee also said Kwok’s dismissal of the defence argument that the articles in question were only a fragment of Stand News’ overall coverage demonstrated another divergence between the judge and how journalists think.
A journalist may take a “holistic” approach by providing diverse viewpoints, meaning the inclusion of different opinions in the overall body of coverage, he said.
“So that among all the content you provide, there is a degree of diversity. It’s not to say that every single article has to be internally diverse,” Lee said.
Reading Kwok’s judgement, journalists may still find the legal “red line” to be ambiguous, the scholar said.
The analysis in sedition cases could differ from case to case, Lee said, referring to Kwok’s own adjustment between his previous ruling in the speech therapist case and the present one.
Edward Wong, a legal commentator, said Kwok’s reversal of his previous judgement was an unusual move although District Courts were not technically binding on other cases.
“In principle, a court of the same level should follow previous rulings, unless there are good reasons to hold that previous decisions were wrong,” Wong told HKFP in Cantonese, adding Kwok had not “explicitly” said as much in this verdict.
The inclusion of people being reckless about the consequences of their actions as liable to the sedition offence had in effect “widened the basis for a criminal conviction,” Wong said, meaning that prosecutors do not necessarily have to prove a defendant’s intention.
That would have implications for editors and reporters as they could be considered reckless when they publicised comments deemed offensive by authorities, he added.
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