September 2024 marked the end of the landmark sedition case of pro-democracy media outlet Stand News, during which two editors-in-chief were found guilty of “conspiracy to publish seditious publications.” Reporters Without Borders (RSF), along with law expert Josephine K., analyse the findings of the court and discuss what this verdict means for the other journalists reporting in the territory.
In December 2021, the pro-democracy media outlet Stand News was raided by police and many of its staff, including chief editors Cheung Pui Kuen and Patrick Lam, were arrested under the Sedition Ordinance. This colonial-era law had not been enforced for over 50 years in Hong Kong due to its incompatibility with fundamental rights and freedoms in Common Law jurisdictions.
The charges related to 17 articles published since the promulgation of the National Security Law (NSL) in June 2020, which ranged from interviews and news coverage to investigative reporting, as well as opinion pieces criticising the Sedition Ordinance itself.
In September 2024, nearly three years after the arrests, Judge Kwok Wai Kin handed down a 180-page verdict, finding Cheung and Lam guilty of “conspiracy to publish seditious publications.” The verdict declared that the sedition law did not disproportionately restrict freedom of expression, and summarily dismissed every constitutional and legal defence raised by the defendants, setting a dangerous precedent for future sedition trials against media workers.
Stacking the deck in favour of prosecution
- No need for evidence to prove sedition. The prosecution only needs to establish a risk of published materials being seditious to convict under the Sedition Ordinance. They do not need to prove that the defendant had any intention to actually publish the alleged seditious materials; that the defendant had any intention to incite public disturbance or disorder; whether any person reading the allegedly seditious materials was actually incited to commit disorderly actions; or that there was any actual risk to national security.
- No need for explanation to claim quotes and reports are “false.” The prosecution went so far as to cite French philosophers, noting that “modern propaganda no longer relies on complete lies, but half-truths,” when concluding that it simply did not believe interviewees in Stand News features and news reporting.
- Abusive use of the concept of “context of times.” The term “context of the times” is used extensively in the Stand News verdict to establish the court’s subjective interpretation of the sociopolitical atmosphere at the time as evidence to the seditious intent behind the articles’ publication. For example, statistics from the 2019 Hong Kong protests, which occurred before the NSL was passed, and before the alleged conspiratorial articles were published, were brought in to support the idea that social unrest that occurred after the NSL came into effect was connected to the works of Stand News.
Journalists wrongfully accused of promoting dissent when reporting on it
- Considering reporting on the sedition law as an act of sedition. At the time of publication, the reestablishment of the Sedition Ordinance was brand new, and the public would have naturally been seeking to understand the reused law. However, the articles explaining how the NSL and the Sedition Ordinance restricted free speech, and pointing out the fact that their provisions were vague and overly broad, were declared seditious.
- Ignoring the role of the media in reporting on newsworthy individuals and events. One article was declared seditious for mentioning an individual arrested for sedition without explicitly stating the basis of the charges, despite them being well known to the public. It was held to be “clear or implicit support” for the accused. The article was also found to be smearing the government because it critically questioned police actions, which could potentially damage national security and “provoke” the public, despite this being a comment reflecting the opinion of the majority of Hong Kongers at the time.
- Misunderstanding the difference between an opinion piece and investigative reporting. In the verdict, the court erroneously applied the standards of a legal scholar to the Stand News op-ed writer, criticising the author for failing to include reference to specific article numbers, and not engaging in global legal research to present “balanced” information on the application of sedition worldwide.
- Punishing the media for the views of interviewees. According to the courts, reporters must ensure that any interview they conduct is “balanced” (i.e. not solely critical of the government). Interviews with pro-democracy candidates who were later arrested under the NSL were characterised as publication of the views of “radicals”. But if the interviewee also criticised their own pro-democracy camp, the interview was not found to be seditious.
A new recess of the Rule of Law
- Little room for defence. By dismissing arguments on the severity of the sedition law’s impact on free speech, and requiring so little evidence of actual seditious intention, the court has established a precedent that leaves individuals accused of sedition with very little room for defence.
- Conviction at any cost. It also demonstrates the hardline, conviction-at-any-cost approach that Hong Kong courts have been taking for national security offences. By declaring that there is no need to prove the defendant even intended to publish the seditious articles, Judge Kwok had to contradict his own previous judgement in another sedition case in the same court, all to ensure that the Stand News defendants were held liable for the charges they faced.
- A dangerous precedent. The case was decided by the District Court of Hong Kong, and it should be noted that District Courts are not obliged to follow the decisions of other District Courts. However, the case will likely have a powerful influence on other District Court judges. And with no appeal yet launched, it will be some time before the higher courts can examine the judgement and take any remedial action.
Josephine K. is a pseudonym as the author wishes to remain anonymous for safety reasons.
← Read The new legal threats in Hong Kong: The National Security Law
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