The Hong Kong Court of First Instance recently confirmed the convictions of pro-democracy activists Chow Hang-tung, Tang Ngok-kwan, and Tsui Hon-kwong for failing to comply with a notice to provide information as required under Article 43 of the China-imposed National Security Law.
According to Schedule 5 of the Implementation Rules of Article 43, the Commissioner of Police is mandated to serve notices requiring foreign agents to disclose pertinent information about offenses that threaten national security. The information needed may include data on the operations, assets, and personal details of overseas organization members in Hong Kong.
The convicted activists disputed the notice, claiming they did not need to comply since their alliance had no connections abroad. Judge Lai, though, insisted that being a foreign agent was not considered an element of the offense. Wishing to challenge the notices’ legality, the activists contended they were ultra vires or retrospective ineffect. The court declined to review this challenge, emphasizing that the proper means to dispute the notices’ legality was through judicial review. One of the defendants began this process but subsequently abandoned the effort.
Moreover, Lai underlined the necessity for the Commissioner of Police to exercise broad powers to effectively implement the National Security Law. He stated “[the law’s] clear intent…is to confer upon the [Commissioner of Police] wide powers to investigate into the offenses endangering national security… [these powers] must be given a wide ambit so as to…oppose external interference.”
The activists also questioned the fairness of the trial, arguing that the magistrate deprived them of this right by granting public interest immunity to the prosecution. Lai dismissed this claim, arguing that the information was properly redacted and the immunity did not cause any unfairness to the activists.
In dismissing the sentencing appeal, Lai pointed out the activists’ clear intention not to comply with the notice requirement, evidenced by their public announcement of non-compliance in an open letter to the Commissioner of Police on September 7, 2021.
For the reference, West Kowloon Magistrates’ Courts had previously imposed four-and-a-half-month prison sentences upon the activists on March 11, 2023, for failing to comply with the Commissioner of Police’s notice. They had been involved with the Hong Kong Alliance, an organization supporting the Patriotic Democratic Movements of China and disbanded in September 2021, and were known for organizing annual Tiananmen Square vigils in Hong Kong.
Lastly, note that the Court of Final Appeal reversed Chow’s acquittal earlier this year and reinstated her conviction for inciting others to participate in an unauthorized assembly. On a separate occasion in November 2023, the High Court had dismissed Chow’s bid to be declared a party to the injunction appeal proceedings relating to the protest song “Glory to Hong Kong”.