The contrast between the Hong Kong Government’s responses to two rulings from the Court of Final Appeal (CFA) delivered on the same day last week, or March 6, could not be more startling.

On March 6, the government welcomed a CFA decision which upheld pro-democracy radio host “Fast Beat” Tam Tak-chi’s conviction and sentence for uttering seditious words.

In a separate statement on the same day, the Government said it will study how to “improve” national security legislation after the top court overturned previous convictions of three activists of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movement in China (alliance). The alliance had held an annual candlelight vigil to mark the Tiananmen crackdown since 1989 before its disbandment.

“Improve” the national security law

The term “improve” was also used by the Central Government when it overhauled the city’s election rules for the Legislative Council and District Councils by drastically reducing democratic elements in the wake of the 2019 social movement.

In response to media enquiries on the alliance’s case, the Government said it will examine how the relevant system and enforcement mechanisms can be improved in order to be more effective in preventing, suppressing and punishing acts endangering national security.

It is too early to tell whether and how the Government will “improve” the national security law.

But the fact the Government cannot wait to express their delight at a CFA ruling that was in favour of them and, at the same time, indicate their disapproval of another that went against them has raised questions about their attitude towards dissenting views.

Adding to the feeling of unease in some quarters of the society about the contrasting responses, the Government gave a hint that they may change the national security law following the ruling – even before they have completed studies on the ruling.

Confidence in the independence judiciary

Supporters for freedoms and democracy have reacted with mixed feelings to the two CFA rulings for obvious reasons.

Though not unexpected, the final appellate court upheld the conviction of “Fast Beat”, ruling that a person can be held liable for the crime even without intending to incite violence or public disorder. It also rejected Tam’s contention that the now-repealed crimes offence must be tried before a judge and a jury.

The CFA ruling looks set to have implications on the Jimmy Lai case and an appeal of the now-disbanded Stand News editors against their sedition conviction.

In view of the “Fast Beat” case ruling, the reversal of the conviction of three alliance leaders for breaching a rule under the national security law should have brightened the mood of pro-democracy citizens.

The assertion by the five-member panel of CFA judges of the right of defendants to a fair trial and their pledge of not allowing miscarriage of justice in courts should have given a big booster to confidence in the independence judiciary.

That that has not happened shows citizens understand well the ruling has and will not change the reality that national security departments have been given enormous powers in handling national security cases with the powers of checks and balances in doubt.

Never too late

One bone of contention in the alliance’s case is about the prosecution’s refusal of disclosing evidence that alleged the alliance was a foreign agent.

The CFA said non-disclosure of redacted facts deprived the appellants of a fair trial. “We rejected the Government’s submission that it suffices to show that the commissioner of police reasonably believes that person to be a foreign agent.

According to reports by online media outlets, the 42-page judgment contains what the judges described as “striking features” that saw 32 pages of redacted facts. Some pages were completely covered in black ink with a mark “CONFIDENTIAL”.

If the feeling of delight with the belated justice did not last long, it is because it would only be a sensible decision for the final appellate court to quash the unreasonable rulings at the lower courts.

With little to celebrate, the “striking features” of redacted facts that were supposed to be “evidence” aimed to support the prosecution have emerged as a stark reminder of the enormity of powers given to the Government when handling national security cases.

Doubters may consider the final appellate court’s move to adhere to the basics of fair trial and to right the wrong of lower courts’ rulings on the alliance case too little to safeguard rights and freedoms in the post-NSL era. It is never too late to assert the function and role of the judiciary in ensuring justice is done and seen to be done.

( Photo : Chow Hang-tung facebook )

▌[At Large] About the Author

Chris Yeung is a veteran journalist, a founder and chief writer of the now-disbanded CitizenNews; he now runs a daily news commentary channel on Youtube. He had formerly worked with the South China Morning Post and the Hong Kong Economic Journal.