Stand News Arrests: Why Sedition, Why Now, and What Does it Mean for Hong Kong?

The Hong Kong Police want to stamp out criticism, but they can't do that if media defendants receive fair trials. Thanks to the Court of Final Appeal, now they won't.

This morning, the Hong Kong Police raided Stand News, the largest remaining independent voice in Hong Kong’s media scene. They detained seven people, six of whom are accused of Sedition under the Crimes Ordinance. By the end of the work day, Stand News announced it was shutting down all operations and terminating staff.

This isn’t the first time that the National Security Police have raided a major news outlet and imprisoned its leaders—Apple Daily was the first, way back in August 2020—but it is the first time they have done so under the sedition law, rather than under 2020’s National Security Law (or NSL).

Yesterday, not coincidentally, the DOJ added a sedition charge against Apple Daily founder Jimmy Lai and the six other Apple Daily personnel who are currently awaiting trial. When arrested and jailed last August, the Police charged them only with “collusion with foreign forces” under the NSL for their alleged support for foreign economic sanctions against Hong Kong and Beijing officials. At the time, the focus on foreign contacts rather than general critical media reporting showed a modicum of restraint, however small, by the National Security Police.

But with the new sedition charges for both Stand News and Apple Daily, that restraint is no more: both organizations are now charged with “causing hatred against the government” and “causing discontent among the public” under the sedition law, broad allegations that make clear that the goal is to shut down all criticism of the Government from local media.

So why charge Stand News and Apple Daily with sedition now? Sedition has been on the books for ages—it’s a British colonial law—so what stopped the National Security Police from using it in earlier arrests?

In short, because they might have had to actually provide the defendants with due process and fair trials, which they might have lost due to the limitations of the sedition law. But thanks to a Court of Final Appeal decision two weeks ago, sedition defendants are no longer entitled to such luxuries as bail, open trials and independent judges. Convictions can therefore be virtually guaranteed.

The Court of Final Appeal recently ruled that sedition defendants, like NSL defendants, aren’t entitled to normal due process protections

The NSL, passed in June 2020, strips many key due process protections away from defendants in cases brought under the four offences it creates. It had previously been unclear, however, if its powers extend beyond those four offences. Then, on December 14 this year in HKSAR v Ng Hau Yi Sidney, the Court of Final Appeal ruled that these procedural rights can also be withheld from defendants charged under other “offences endangering national security” that have long existed in Hong Kong, including the British-era sedition law.

Law Professor Thomas Kellogg wrote an explainer for Hong Kong Free Press on the court’s reasoning.  I won’t get into detail on that reasoning except to say that the basis for the court’s ruling is not wrong—it is a reasonable interpretation of an offensive and infuriating law—but is more conservative than it could have, and should have, been given the downright sinister nature of a law designed to rig cases against defendants. Based on the terms of the NSL (particularly Paragraph 41), the law’s drafters clearly intended it to apply to non-NSL crimes like sedition, but Section 4 of law also claims to preserve civil liberties found in the Basic Law and human rights treaties. The court could have ruled that, faced with such a contradiction, people’s rights should come first. Instead, it chose the much safer, less principled interpretation.

To be clear, the ruling is limited to procedure; it does not apply the entire NSL to sedition, nor alter the sedition penalties (maximum two years in prison). It does, however, put sedition cases into the CCP-controlled “NSL process” in the courts.

So, the court felt forced to broaden the NSL’s procedural provisions to sedition and other “national security” offences. This then raises two questions. First, why is it so important to the Police to be able to use the sedition law against news media, rather than simply charge them under the four crimes of the NSL? Second, why wait so long for this court ruling instead of just charging the Stand News and Apple Daily personnel with sedition at the outset and taking the risk that they would be allowed traditional due process protections?

Why sedition? Why not charge Stand News under the National Security Law’s four crimes?

When it comes to news media, none of the NSL offences—subversion, terrorism, collusion with foreign forces, or secession—allow the Police to achieve their goal: to control the actual content of news reports. They still needed another hook beyond simply declaring that they don’t like a particular editorial angle.

The Police were able to arrest Apple Daily executives under the NSL’s “collusion with foreign forces” offence because of a specific type of content in their editorials: calls for foreign economic sanctions. Until yesterday, they had not alleged more generally that Apple Daily or any media outlet violated the law simply by criticizing the police or government.

But criticism infuriates the Police, and they have a long history of labeling any media criticism as “bias” or “fake news.” To put it in terms of a popular Chinese expression, the Hong Kong Police have glass hearts—easily shattered by the slightest strike. With the sedition law, they have long seen an opportunity to stamp out that criticism altogether.

But sedition has its limitations, which have led to the Police holding off on using it against the media…until yesterday.

Why didn’t the Police want to charge news media with sedition previously, and why has that now changed?

So why did the Police want to wait for this CFA decision before bringing sedition charges against Stand News and Apple Daily? Quite simply, because if the defendants were allowed to have a fair trial, they might win.

It is difficult to prove sedition

The sedition law under the Crimes Ordinance requires proving a “seditious intention.” The Police appear to be alleging Stand News meets the requirement of Section 9(1)(a) of the “seditious intention” definition: “to bring into hatred or contempt or to excite disaffection against the [Beijing Government] or against the Government of Hong Kong.”

OK, sounds like an easy conviction, right? Stand News is critical of the Government, which at a minimum will “excite disaffection” against the government.

But here’s the problem: Section 9(2) of the definition includes exceptions to “seditious intention.” Even if someone violates Section 9(1), there is no seditious intent if the purpose of the act is “to show that [the government] has been misled or mistaken in any of [its] measures,” or “to point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects.”

So bringing sedition charges against a media organization is problematic. If there is a fair trial, can the government really prove beyond a reasonable doubt that Stand News didn’t intend its media reporting to point out errors or defects in the government or show that the government has been misled or mistaken in its measures? I think not—which is exactly why sedition laws are so rarely used against media outlets in free and fair legal systems.

As such, the Police have long known that sedition charges against Apple Daily, Stand News, or any other media outlet could lead to acquittal—and consequently the Government’s embarrassment—in a fair trial. As a result, they’ve avoided these charges in hopes that they would have a better opportunity to bring them in the future.

Can’t prove your case? Just get rid of fair trials.

That opportunity came in the form of the CFA’s ruling extending the NSL’s onerous procedures to sedition. Let’s take a look at three of the key procedural protections that will, thanks to the CFA’s ruling, no longer apply to the Stand News defendants:

• Bail will not be granted “unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”  (the usual rule is a presumption that bail will be granted) (NSL Art. 42);

• Judges in court proceedings will be designated by the Chief Executive upon “consultation” with Beijing-controlled Committee for Safeguarding National Security (NSL Art. 44-45);

• Trials no longer have to be open to the public, at the sole discretion of the Secretary for Justice (NSL Art. 46).

These provisions, among others, ensure that the Police and their sycophants in the government will have as close as possible to full control over the justice system, including not just arrests and convictions but also in drawing the boundaries of the law itself.

With regard to bail: If defendants can be locked up on the whim of the Police and held without bail, the Police have the power to dole out punishments themselves, without having to bother with convictions. As with any police state, the Police know their control depend on the Police themselves being able to set the boundaries of the law, rather than the legislature or the courts. By using the NSL bail provisions to keep not only NSL defendants but also sedition defendants locked up while awaiting trial, the Police ensure that wherever they say the red lines are, that’s where the public will set them as well. After all, what’s the point in winning in court if you’ve already had to spend two years in prison without bail before being exonerated?

To most people, it will be best to just do whatever it takes to comply with even the most onerous lines drawn by the Police. For much of the news media watching today’s events, that means avoiding direct criticism of the Police—no matter how solid the legal basis for making such a criticism.

As for Beijing-appointed national security judges, they have shown themselves to be reliable yes-men and -women for the police and DOJ. They have frequently manipulated facts and law to ensure conviction. If the Stand News defendants had gone through the normal process with their due process rights intact, they would have been randomly assigned a judge—and there were no guarantees it would be a national security judge or one friendly to the administration. But a jury-free trial in front of a national security judge virtually guarantees conviction and imprisonment for a substantial term.

And, of course, if all else fails and the facts are not looking good for the Government, the Secretary for Justice can simply declare that the trial will not be open to the public. Facts and law can then be manipulated without scrutiny to obtain the desired conviction.

The Police needed these assurances to be in place before they made their move to control the media. Losing a case against a political prisoner would make it appear that the Police are less than 100% in control of the city—an unacceptable result to both the Police and to Beijing. After all, Beijing famously has a 99.9% conviction rate year after year. Authoritarians really don’t like to lose.

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So where does this leave Hong Kong? It seems we may be approaching the end of independent reporting in the city. I expect we’ll see a retreat from the remaining local independent media in the coming days, with at least some deciding to shut down their operations rather than risk stepping over the ever-tightening red lines. Foreign media may have more protection from raids and arrests, but we can expect an expansion of the existing program of denying visa renewals to reporters who upset the Government.

And so we continue the march towards the full mainland-ization of Hong Kong. 2022 is not looking much brighter than 2021 for our civil liberties.