In the past three years since Beijing imposed a National Security Law (NSL) on Hong Kong, many analysts and observers worried that the authorities would continue to legislate new bills to weaponize laws and courts to suppress the free and open society of Hong Kong.
These concerns were not invalid; the chief executive of Hong Kong made it clear that they would complete the legislation of the local security bill by next year. The use of formal, domestic legal rules, ranging from employing the sedition law to banning civil society activities that lack an entertainment license, has silenced many trying to speak out their views in public.
However, what’s more worrying is the government’s arbitrary use of laws and powers that go beyond formal rules. Such government behaviors are unavoidably creating more uncertainties and undermining the integrity of the rule of law in Hong Kong.
Perhaps the most notable example is Agnes Chow’s self-imposed exile after jumping bail from the Hong Kong authorities. The statement from Chow, who is one of the youngest leading pro-democracy figures in Hong Kong and is famous in Japan’s public sphere, offers us an insight to explain my concern above.
Agnes Chow’s Declaration and the Government’s Silence
According to Chow’s statement on her social media account, she left Hong Kong for Toronto in mid-September for university studies. Now, she has decided not to return to Hong Kong in December to report to the police as her bail conditions demanded.
In August 2020, Chow and eight other activists were arrested by national security police. She was accused of colluding with foreign forces to endanger national security, a new crime under the NSL imposed by Beijing in the same year. Later, she was released on police bail and her travel documents were surrendered.
This year, Chow enrolled in a Toronto master’s program and got a conditional offer. To get back her passport, she was asked by the authorities to write a “letter of repentance,” claiming she regretted her past political involvement and would never communicate with anyone from the relevant circle again. After that, she was requested to travel with Hong Kong’s national security police to mainland China to visit exhibitions and to write a letter praising the “great achievements” of the country.
Writing a “letter of repentance” before prosecution and trial does not accord with the common law system in Hong Kong. But it is a practice not uncommon in mainland China, where journalists, activists, and even businesspeople have to submit such letters to law enforcement in order to secure release from custody. Also, praising the country as a condition of releasing travel documents has never been a norm in Hong Kong’s legal and judicial system. Still, it serves as a known tactic of mainland authorities to pressure targeted individuals, using personal liberty and safety as leverage.
Currently, the Hong Kong authorities have only condemned Chow’s declaration of jumping her bail. Still, they are reluctant to confirm whether Chow’s statements about the bail conditions and her visits to mainland China are factual.
Acts With No Legal Basis
If Chow’s self-declaration is entirely genuine, then it further confirms that politics are above the rule of law in Hong Kong today. As long as a criminal suspect could demonstrate patriotism before the police – by praising the regime, cutting ties with enemies of the state, or whatever the authorities define – the authorities could be satisfied and offer a deal of personal liberty.
Fundamentally, Chow has not yet been charged with national security crimes and thus has never been taken to court for a national security trial in the past three years. There is real doubt about the strength of the case against her. The request for a letter of repentance as part of the deal for releasing her travel documents is, obviously, not part of the criminal procedure under either local law or the NSL. It is probably a political means to pressure Chow before any formal proceedings.
This appears inconsistent with the existing legal rules under Hong Kong’s criminal law and the NSL.
Following the Criminal Procedure Ordinance, there are clear rules for bail conditions to ensure the person admitted to bail will not, for example, commit an offense while on bail or interfere with a witness. There are no rules that submitting a letter of repentance before the commencement of trial can be considered a bail condition.
Even in the NSL, rules for confiscating travel documents are provided. Under the NSL’s implementation rules, an applicant who had their passport confiscated under the NSL can petition the police commissioner or a magistrate to return the passport or permit them to leave Hong Kong. Such a decision can be made if the commissioner or magistrate finds that refusing the application would cause unreasonable hardship to the applicant. An applicant may have to deposit a sum of money and enter into recognizance, and will have to appear at a specified time and place in Hong Kong upon return. Nevertheless, the implementation rules have not provided any discretionary powers to the police to impose additional conditions on the applicant.
Ostensibly, joining police officers to visit mainland China and writing letters of repentance are not required in the rules. Even the NSL does not provide powers to police officers to impose additional conditions for returning travel documents.
One may argue that law enforcement could have discretionary powers to implement the National Security Law effectively. One may also say that a bargain for liberty between the police and an arrestee on police bail is not uncommon. However, if Chow’s statement is true, the police request for her appears to make the exercise of police power in NSL cases more arbitrary and politicized than before, inevitably challenging the common law system of Hong Kong.
No doubt, arbitrary deprivation of liberty for national security arrestees and defendants is a new norm for Hong Kong’s political and legal order, when many of them have been suffering from pre-trial detention for more than two years. Now, it appears that whether a defendant could be free from police surveillance depends on the extent that they would comply with police requests, which are more political than legal in nature.
Furthermore, Hong Kong’s law enforcement appears to be able to take criminal suspects to mainland China in their formal capacity. Yet, mainland China is not under the jurisdiction of Hong Kong police. To what extent did mainland law enforcement aid them? Was the trip treated as a private visit, which should never be read as carrying out police duties? If Chow’s claim is accurate, it is a disturbing example of the jurisdictional boundary between Hong Kong and mainland China being further blurred.
A Chill to the Business Sector
For many foreign investors, the underlying reason for trusting Hong Kong’s “one country, two systems” formula is that their investment could be safeguarded by the standards of the common law in Hong Kong, including the independent court, legal certainty, and the absence of arbitrariness in law enforcement. These elements fundamentally differ from the city’s sovereign state, where laws and courts are subject to the Chinese Communist Party.
Even though Hong Kong now has a Committee for Safeguarding National Security, whose decisions are not subject to legal review and could, in theory, overrule the courts, the Hong Kong government has repeatedly claimed to business groups that the city’s common law and justice system remain robust and impartial, supporting a fair and friendly business environment.
That said, Chow’s statement inevitably sends a message to global investors that Hong Kong’s enforcement of laws and political powers are more arbitrary than before, as the authorities now consider acts of patriotism as a top cause for gaining freedom of movement and property. Foreign investors would not be eager to receive similar treatment from both Chinese and Hong Kong law enforcement when doing business in the territory. However such a convergence seems to be coming true.
Perhaps the Hong Kong government intended to release Chow and let her tell the world of her experience of surveillance, as well as the police’s request for her to express repentance and patriotism. This might create another form of chilling effect for Hong Kongers in the territory: expressing the love of the country, and eventually, the party-state will soon be a prerequisite for enjoying freedom and liberty, while the meaning of “loving the country” could only be decided by the state.
No doubt, given the scant accountability the local police face under the NSL, this whole charade – arrest, seizure of travel documents for indeterminate periods, imposition of arbitrary conditions – could befall anyone in Hong Kong now.
Transparency is paramount to saving Hong Kong’s image of upholding the rule of law, unless it is merely a façade or slogan. The government should explain publicly whether Chow’s claims are accurate and, if so, what was the legal basis of making such requests on Chow.
If the authorities continue to use the National Security Law as a shield to cover their arbitrary practice of laws and powers from the public, their credibility would not be enhanced. Instead, both the public’s and global business’s confidence could only deteriorate further, as they might find Hong Kong’s legal environment is no longer sure and consistent, just like the city’s motherland.