Hong Kong supercharges 1938 British sedition law to curb dissent

Since September 2020, some 60 people have been arrested under the 1938 Crimes Ordinance. PHOTO: EPA-EFE

HONG KONG (BLOOMBERG) - Bubble-tea shop owners jailed after publishing anti-vaccination messages online. An IT worker arrested over posting the political slogan "Liberate Hong Kong" on social media. A 67-year-old apprehended simply for applauding a court defendant.

Ever since Beijing imposed a national security law on the city in 2020, these acts have been considered crimes in the former British colony, which once protected free speech. Yet now, after a Hong Kong court last December expanded the scope of the statute, authorities are increasingly prosecuting them under a colonial sedition law that hadn't been used for decades.

The court said that because Beijing's security law was "incomplete", special provisions such as a much higher bail threshold and handpicked judges could apply to other security-focused crimes not specifically mentioned in the 2020 statute - including sedition.

Since September 2020, some 60 people have been arrested under the 1938 Crimes Ordinance, which was intended at the time to silence pro-Beijing forces.

The ordinance defines sedition as speech or publications bringing hate or contempt to "Her Majesty, her heirs or successors" or the government. Sedition now accounts for about a quarter of all 215 arrests by the national security police division created by the China-imposed law.

"It's painfully clear these laws are being applied to silence criticism and speech that the Hong Kong authorities - on behalf of the central government - has decided are politically unacceptable," said Ms Sophie Richardson, China director at Human Rights Watch.

Hong Kong's crackdown on dissent has jailed scores of journalists, politicians and civil society figures - and pressured lawyers defending them - in the wake of 2019's anti-government unrest. That campaign has undermined the city's reputation as a liberal finance hub and prompted concerns that its rule of law is deteriorating.

Last month, the United Nations Human Rights Committee called on Hong Kong to repeal its sedition measure, saying it was curtailing citizens' "legitimate right to freedom of speech".

Instead, officials look set to go harder. Chief Executive John Lee has vowed to pass Hong Kong's own long-shelved security law, which would introduce a new sedition law and ban theft of state secrets - a vague crime that could create an uncertain environment for dealing with government-owned businesses.

In a statement last month, the Hong Kong government responded to the UN committee, saying: "The offence is not meant to silence expression of any opinion, only genuine criticisms against the government based on objective facts."

The Justice Department added in an emailed statement that "the sedition offence is consistent with the relevant provisions of the Basic Law and the Hong Kong Bill of Rights on the protection of human rights".

Hong Kong radio host Tam Tak-Chi became the first person jailed for sedition since the city returned to Chinese rule when he was handed a 40-month sentence in April, which he is appealing. His arrest came just two months after Beijing imposed its security law in June 2020.

Before that, sedition had for decades been overridden by the city's legal guarantees of free speech, said Mr Michael Davis, a former law professor at the University of Hong Kong. "Prosecutors never brought such cases despite all the criticism of the government," he added.

Any such hesitancy evaporated after the December 2021 court decision. The effective melding of the British-drafted law with the Beijing-imposed one saw sedition arrests quadruple during the year from August 2021, compared with the previous period. The scope of cases also broadened to target journalists, civil servants and more trivial crimes, such as simply opposing the government's Covid-19 polices.

"They can prosecute it more easily," said Mr Davis, noting that the sedition law's threshold for arrest is as low as promoting "ill-will" between classes.

Sedition's maximum two-year sentence, compared to life under the Beijing-imposed national security law, also allows authorities to handle more cases without clogging up resources.

Seven of 35 sedition charges have already been prosecuted compared with just four under the security law. All who have gone to trial so far under both measures were convicted.

The British-era law also provides some political cover. While the UK has been an outspoken critic of China's security law, offering safe harbour to some 124,000 fleeing its penalties, condemning a provision passed by the colonial government would be more complicated.

"It also helps to counter popular feelings in Hong Kong that the colonial era was better," said Mr Steven Tsang, director of SOAS China Institute. British flags were common features at now-banned pro-democracy rallies, despite citizens being also denied universal suffrage in the pre-1997 era.

Britain repealed its own sedition law in 2009, with then-member of the House of Lords, Anthony Lester, calling it "an archaic and outdated offence that unduly restricts free speech", adding that eliminating it sent an important signal to former colonies still using such laws to suppress political criticism.

In India, some 13,000 people including journalists, filmmakers, singers and actors have been charged with its 150-year-old sedition law since 2010, according to Amnesty International. The country's Supreme Court in May ordered authorities to halt use of the sedition measure and pending trials. Other former colonies including Australia, New Zealand and Singapore have repealed such colonial-era tools of oppression in recent years.

In Hong Kong, officials are instead turning the law on their own ranks. Two government workers who ran the "Civil Service Secrets" Facebook page, which had some 200,000 likes and shared criticism of paramedics being overworked during the city's so-called fifth wave of Covid-19 infections, were arrested this month for promoting "ill-will".

Similar sites for Hospital Authority and Chinese University of Hong Kong workers voluntarily closed days later. "We are rolling back to the era of literacy inquisitions where any speech or words can be interpreted arbitrarily as anti-government and you could be sent to jail," said Mr Eric Lai, a law fellow of the Georgetown Centre of Asia. "The chilling effect is obvious and substantial."

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