When authority over Hong Kong was transferred from Britain to China in 1997 many wondered how life on the island would change, and if its laws and procedures would be altered to align more with that of the mainland. Protests became common in the years that followed, and the simple yellow umbrella became synonymous with the fight for democracy after a namesake movement in 2014.
For Dr Karen Lee, a senior lecturer in the Law School of La Trobe University, it was the introduction of the National Security Law in 2020 that finally brought an end to the protests of the previous decade. Legislation has allowed for a harsher crackdown on subversion and dissent, increasing penalties and modifying the judicial system in a number of ways.
“The changes brought in by the National Security Law have been subtle and not tangible for most people, but they’ve been groundbreaking in how they have modified the Hong Kong criminal justice system,” says Dr Lee.
“For the most part the justice system still has all the trappings of a common law system. There are wigs and gowns, and judges from overseas still sit in the Court of Final Appeal - there’s four retired Australian judges there. But the treatment of those arrested, and certain rulings made by courts, have gone a long way to eroding public trust.”
In September 2022 five speech therapists in Hong Kong were sentenced to 19 months in prison under charges of sedition for publishing a children’s book which could be interpreted as critical of the Chinese government. Amongst the many red flags raised by human rights advocates about this case is that the defendants were held for nearly a year without trial.
“It has become commonplace for Hong Kong citizens to be held for long amounts of time without trial, particularly if they are suspected or accused of seditious crimes,” says Dr Lee. “It serves as a warning to the public that such actions won’t be tolerated.”
In what many critics have now dubbed ‘the end of Hong Kong’, the National Security Law has meant there is no safe way to protest, and limited free speech.
“The National Security Law was imposed on Hong Kong without a local legislative process, and its effect has been chilling,” says Dr Lee. “Before, it would have been unprecedented to regard publishing a children’s book as a seditious act intent on inciting violence and hatred against the government. But it defines seditious activity so broadly that now this is expected.”
While Hong Kong has a long tradition of jury verdicts in its courtroom, that can no longer be taken for granted. The National Security Law swept this aside with its first trial in 2021, when Tong Ying-kit was sentenced to nine years prison by a panel of judges, on the charges of incitement to secession and terrorist activities.
“Jury trial used to be the norm for more serious cases, and a right of the people of Hong Kong, but in cases involving the security law this becomes dispensable,” says Dr Lee. “Guilt is decided and sentences handed out by a panel of judges appointed by the Chief Executive, Hong Kong’s leader. While many of these judges are respectable, there are concerns of bias in the system that the government would only appoint judges whose views and actions they accept.”
Sentencing now puts judges in a precarious position, with an increased chance that their judgements will be criticised at higher levels if their rulings are deemed unacceptable.
“The history of the Hong Kong Court of Final Appeal tells us that judgments that are deemed “incorrect” in their interpretation of Hong Kong’s Basic Law could be overturned by China’s top political organ,” says Dr Lee. “The Chinese government has seemed to be quite determined in setting the record straight.”
The effect of the National Security Law in Hong Kong has been profound. Most citizens now shun protests or open speeches, and for many the only way to freely express their views is to leave the island.
“It’s sad to see the changes in Hong Kong, but ironically it’s offered a chance for many to emigrate, and the pathway is much easier,” says Dr Lee. “For those that stay they must live within this new system and adapt. They must carve out a space for themselves and express themselves not politically, but perhaps culturally.”
