“Inciting subversion” trial unlikely to commence before November 2024

On 19 February 2024, the High Court in Hong Kong convened a case management hearing in the case against the Hong Kong Alliance and its three former leaders, woman human rights defender Chow Hang-tung, labour rights defender Lee Cheuk-yan, and human rights lawyer Albert Ho Chun-yan.

Based on the amount of evidence and documentation submitted by both the prosecution and defence, the panel of three government-appointed national security judges anticipate that the trial will take about 70 days and is unlikely to commence before November 2024.

On 4 March 2023, a Hong Kong government-designated national security judge at the West Kowloon Magistrates’ Court convicted woman human rights defender Chow Hang-tung and two other leaders of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Hong Kong Alliance) for refusing to comply with the Hong Kong police’s request in August 2021 demanding disclosure of extensive information about its funding, activities, Board members, executives, and staff.

Sentencing is scheduled on 11 March 2023. The woman human rights defender and the two other Alliance leaders face up to six months in jail and a HKD100,000 fine (approximately EUR 11,919). Chow Hang-tung is also being prosecuted for “inciting subversion of State power” under the National Security Law in a separate case.

The police’s request for information was based on what it claimed were “reasonable grounds” for believing the Alliance was a “foreign agent”, and was issued under the Implementation Rules for Article 43 of the National Security Law in Hong Kong, which grant expansive investigative powers to the police. However, during the trial, the prosecution concealed the identity of the foreign organisation for which it accused the Alliance of acting as a “foreign agent”, and a key police officer who testified also refused to answer questions regarding the identity of the foreign organisation. The judge also sided with the prosecution’s and the police’s argument that disclosure of such information would damage “the public interest” and “jeopardise on-going investigations” into other individuals and organisations.

Chow Hang-tung (鄒幸彤) is a barrister and woman human rights defender in Hong Kong. At the time of her arrest on 8 September 2021 for refusing to provide data to the police, she was one of the vice-chairs of the Hong Kong Alliance. On 24 September 2021, as a result of the prosecution of the Alliance’s leaders and high risks of further prosecution, members of the Alliance voted to dissolve the organisation. On 26 October 2021, while the liquidation process for the Alliance was still on-going, then Hong Kong Chief Executive Carrie Lam issued an order for the Alliance be removed from the Companies Register on the basis that "the operation of the Alliance which seeks to end the Chinese Communist Party's leadership amounts to seeking to overthrow" the political system of the People's Republic of China and subverting state power.”

In his ruling, the national security judge also affirmed that the National Security Law itself as well as the decisions and actions of the National Security Committee, a new body created under the National Security Law, cannot be challenged in local court. The National S ecurity Committee, chaired by Hong Kong’s chief executive and supervised by the central Chinese government in Beijing, was responsible for developing the Implementation Rules for Article 43 of the National Security Law.

UN human rights experts have repeatedly raised concerns that the National Security Law and its Implementation Rules for Article 43 pose serious risks to the right to defend human rights and to freedom of expression, freedom of association, privacy, and a fair trial.

In September 2021, UN Special Procedures mandate-holders wrote to the Chinese and Hong Kong authorities about the detention of Chow Hang-tung. The experts said that detention and arrests of human rights defenders “form part of a broader operation to impose undue restrictions on the freedom of expression and peaceful assembly of pro-democracy movements in Hong Kong” and that such “a criminalisation of the exercise of human rights with reference to national security is incompatible with international human rights law.”

In July 2022, the UN Human Rights Committee, in its concluding observations on the implementation by the Hong Kong government of the International Covenant on Civil and Political Rights (ICCPR), expressed concerns about the arbitrary arrests and detention of human rights defenders under the National Security Law and sedition law, calling for the suspension of enforcement of these laws and for their reform or repeal. The Committee stated that “Article 43(6) of the National Security Law and Schedule 6 of the Implementation Rules, which facilitate arbitrary intrusion into privacy for the purpose of public security or national security, are not compatible with article 17 of the Covenant.”

In February 2023, the UN Committee on Economic, Social and Cultural Rights also criticised the use of the National Security Law to target human rights defenders in Hong Kong, and was concerned that the law “has de facto abolished the independence of the judiciary.” It has called for a review of the Law to bring it into line with international human rights standards.

Front Line Defenders believes the arrest and subsequent prosecution of Chow Hang-tung and other Alliance members under the National Security Law are reprisals against their legitimate and peaceful human rights work. Both the substantive and procedural inconsistencies with international human rights standards seen in this case illustrate the intention and capacity of the Hong Kong authorities to use the National Security Law and its Implementation Rules to punish and intimidate human rights defenders and organisations and deter them from communicating or collaborating with or receiving support from international partners, other governments, and UN human rights mechanisms.

Front Line Defenders calls on the Hong Kong authorities to quash the conviction against Chow Hang-tung and the other Alliance leaders, release them immediately, and drop the other criminal charges against them. It reiterates its call on the central Chinese government to repeal the National Security Law and its Implementation Rules in Hong Kong.

As of 31 December 2021, the West Kowloon Magistrates Court has rejected woman human rights defender Chow Hang-tung's bail applications for ten times. On 10 January 2022, the woman human rights defender and the two other co-defendants, human rights defenders Lee Cheuk-yan and Albert Ho Chun-yan, appeared before the court for their third mention under the charge of "inciting subversion of State power" under Articles 22 and 23 of the Hong Kong National Security law. The three human rights defenders did not apply for bail at this court mention, while Chow Hang-tung expressed her intention to apply for bail again in eight days, on 19 January 2022.

The woman human rights defender has already been sentenced to a total of 22 months in prison under "unauthorised assembly" charges in two other cases.

On 30 September and 11 October 2021, the West Kowloon Magistrates' Court denied bail to woman human rights defender Chow Hang-tung for the third and fourth times, respectively. The judge said on both occasions that he did not see any "key changes" in Chow Hang-tung's situation to warrant provision of bail. Her next bail review is scheduled for 21 October 2021, which also coincides with the pre-trial review for the case in which Chow Hang-tung and four other former leaders of the Hong Kong Alliance are being prosecuted for failure to provide information to the police under the national security law.

Earlier on 29 September 2021, the National Security Department of the Hong Kong Police Force sent a notice to Chow Hang-tung and other former leaders of the Hong Kong Alliance and informed them that its property in the Mong Kok district and multiple bank accounts held in three banks in Hong Kong have been frozen, under the powers granted by Section 3(1) of the Implementing Rules of Article 43 of Hong Kong's national security law. According to the notice, the asset freeze will last until 28 September 2023.

On 15 September 2021, Chow Hang-tung appeared before the West Kowloon Magistrates Court for her first bail review hearing since she was charged with and denied bail a week ago over the charges of "inciting subversion of State power" and "failing to provide information" to the police under Hong Kong's national security law. The judge denied bail to the woman human rights defender for both charges on the basis that he has "insufficient ground for believing she would not continue to commit acts endangering national security." Her next bail review is scheduled for 24 September 2021.

On 16 September 2021, the Hong Kong Alliance, of which Chow Hang-tung is a vice chairperson, announced that the Hong Kong police had sent a letter to the Alliance, its seven executive committee members and its company secretary on 10 September 2021. The letter invokes the powers under article 7(2) of the Implementing Rules of Article 43 of the national security law and requires the Alliance to remove designated content on online platforms operated by the Alliance within seven days. The Alliance announced it would remove its official website, its Facebook, and "messages on other designated electronic platforms". By 17 September 2021, the Alliance's website, Facebook, Instagram and Twitter accounts were no longer accessible.

On the morning of 8 September 2021, police arrested Hong Kong woman human rights defender and lawyer Chow Hang-tung and three other members of the Standing Committee of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Hong Kong Alliance), one day after they refused to comply with a police order that accuses them of being a “foreign agent” and demands a substantial amount of information about its staff, funding sources, and interaction with Hong Kong and foreign organisations in the last seven years. This is the woman human rights defender’s third arrest since the beginning of June 2021.

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Chow Hang-tung (鄒幸彤) is a barrister and woman human rights defender in Hong Kong. She has advocated for the protection and promotion of labour rights, as well as for the rights of persecuted human rights defenders in mainland China. She is one of the current vice-chairs of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Hong Kong Alliance), a grassroots advocacy group established in 1989 in Hong Kong to campaign for the release of Chinese political prisoners, democratic reforms in China, and accountability for the extrajudicial killings and other violations by the Chinese authorities during the lethal crackdown on pro-democracy protests in June 1989. As a barrister in Hong Kong, she has also provided legal assistance to peaceful activists and protesters targeted by police and judicial actions for their involvement in pro-democracy activities.

On 8 September 2021, Chow Hang-tung was arrested alongside three other members of the Hong Kong Alliance. Their arrest came after the National Security Department of the Hong Kong Police served a notice to Chow Hang-tung and other members of the Standing Committee of the Hong Kong Alliance on 25 August 2021, under the expansive powers granted to the police under Article 43 of the Hong Kong national security law, which was unilaterally imposed by the central Chinese government on 30 June 2020. On 5 September, the police indicated they have served notices to an unspecified number of organisations in Hong Kong on 25 August 2021. Under the Implementation Rules of Article 43 of the national security law, those who refuse to comply with a data request notice “commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months.”

The notice served to the Hong Kong Alliance demands a large amount of information, including the personal information of all board members, Standing Committee members, and full-time employees since the Alliance’s founding 32 years ago in 1989; records from all offline and online meetings of its Board and Standing Committee, conducted in Hong Kong since 2014; and information, such as the date, time, location, purposes, organisers, funding and expenditures, of all offline and online activities conducted in Hong Kong since 2014 which were organised jointly with, organised with the assistance by, funded by, and/or attended by “political parties or other organisations and/or their Hong Kong branches that pursue political ends and that are based outside the territory of the People’s Republic of China or based in Taiwan”, as well as other meetings that the Alliance held with any of these entities since 2014.

The police notice required the Hong Kong Alliance to surrender the required information in writing by 7 September 2021. On 5 September 2021, Chow Hang-tung and three other Standing Committee members of the Alliance held a public press conference and announced that they would not comply with the notice. Chow Hang-tung stated that the Alliance is not an agent of any government or State interests. Instead, she stated that the Alliance is “an agent of the Hong Kong people’s conscience” in its mission to advocate for democratic reforms and accountability for human rights violations. The Alliance also announced it would orgnaise an extraordinary General Assembly of its members on 25 September 2021 to decide whether the Alliance should disband in the face of increasing government pressure and threats.

On 7 September 2021, Chow Hang-tung and other Standing Committee members went to the Hong Kong Police Headquarters and submitted their response in writing. The response stressed that the police have failed to provide any evidence in the notice to substantiate the “foreign agent” allegation, failed to demonstrate how serving such a notice to the Alliance is “necesary” to prevent and investigate national security crimes, and failed to establish credible connections between the information requested and the nature of the national security crimes supposedly under investigation.

In 2020, UN human rights experts raised serious concerns about the Hong Kong national security law before and after its adoption. They said the law “lacks precision in key respects, infringes on certain fundamental rights and may not meet the required thresholds of necessity, proportionality and non-discrimination under international law.”

Front Line Defenders believes the Hong Kong national security law, including the implementation rules of its article 43, is abusive and is designed to be and has been used as a tool to threaten and punish human rights defenders and dissenting voices. It reminds the Hong Kong government of its legal obligations under domestic human rights legislation and the International Covenant on Civil and Poltical Rights (ICCPR) to respect all human rights, including the rights to privacy and to freedom of association, which “not only includes the ability...to form and join an association but also to seek, receive and use resources–human, material and financial–from domestic, foreign, and international sources.”

The use of the national security law and other restrictive laws to target human rights defenders has created and deepened a climate of fear among civil society, contributing to self-censorship, scaling down of programmes, resignation of staff members, and dissolution of entire organisations. In August 2021, the Professional Teachers’ Union and the Civil Human Rights Front, two of Hong Kong’s most influential civil society groups, disbanded in the face of political pressure, smear attacks by State media both in Hong Kong and in mainland China, and threats of legal actions by government officials.

Front Line Defenders believes Chow Hang-tung’s and other Alliance members’ arrests are a reprisal for their peaceful and legitimate work of promoting and defending human rights in both Hong Kong and mainland China, as well as exercising of their freedoms of expression, association, and assembly.