HKSAR v Tong Ying Kit was the first trial and conviction under the Hong Kong National Security Law (NSL). Reuters described the verdict as a landmark case with long-term implications for the application of the law and Hong Kong's common-law system. Tong Ying-kit was convicted by a three-judge panel of the Court of First Instance of incitement to secession and terrorist activities arising from his conduct on 1 July 2020, when he rode a motorcycle through Wan Chai while displaying a flag bearing the slogan "Liberate Hong Kong, revolution of our times" and ultimately collided with a group of police officers.
The court held that the slogan was not required to have one exclusive meaning. The question was whether, viewed as a whole and in the particular circumstances in which Tong displayed it, the slogan was capable of inciting secession. It found that Tong understood it to carry a secessionist meaning and intended both to communicate that meaning and to incite others to separate Hong Kong from the People's Republic of China (PRC). On the terrorism count, the court found that Tong's driving involved serious violence against persons and dangerous activities seriously jeopardising public safety or security, caused grave harm to society, and was carried out with a view to intimidating the public in pursuit of a political agenda.
The case was tried without a jury after the Secretary for Justice issued a certificate under Article 46 of the NSL. Tong unsuccessfully challenged the certificate to the Court of Appeal, which treated its issuance as a prosecutorial decision subject only to limited judicial review.
On 30 July 2021, Tong was sentenced to six and a half years' imprisonment for incitement to secession and eight years for terrorist activities. The sentences were made partly concurrent, producing a total term of nine years. He was also disqualified from driving for ten years. Although his lawyers initially announced an appeal, no merits appeal was ultimately pursued.
Background The NSL came into force in Hong Kong on 30 June 2020. The following day, protests were held on Hong Kong Island against the legislation. Tong, then aged 23 (he was 24 by the time of sentencing), rode a motorcycle through Wan Chai with a black flag mounted behind him bearing the words "光復香港 時代革命" and their English translation, "LIBERATE HONG KONG REVOLUTION OF OUR TIMES". Police formed several checklines and directed him to stop. At the final checkline at the junction of Jaffe Road and O'Brien Road, Tong's motorcycle collided with police officers, injuring three of them. The officers were briefly hospitalized, but were found to have suffered no injuries more serious than a thumb dislocation. Tong was then arrested at the scene.
On 2 July, the Hong Kong government issued a statement saying that the slogan "nowadays connotes 'Hong Kong independence'", separating Hong Kong from the PRC, altering Hong Kong's legal status, or subverting state power. Lawyers interviewed by the South China Morning Post stressed at the time that the government's interpretation was not itself legally binding and that criminal liability would ultimately be a matter for the courts. Tong was charged on 3 July with terrorist activities and incitement to secession, becoming the first person charged under the NSL.
Charges and trial arrangements Tong faced two NSL counts and one alternative offence under local law. Count 1 charged incitement to secession contrary to Articles 20 and 21 of the NSL. The prosecution alleged that by displaying the slogan Tong had incited others to organise, plan, commit or participate in acts aimed at separating Hong Kong from the PRC or unlawfully altering Hong Kong's legal status.
Count 2 charged terrorist activities under Article 24. It alleged that, with a view to coercing the Central People's Government or HKSAR Government, or intimidating the public in order to pursue a political agenda, Tong had committed acts causing or intended to cause grave harm to society by engaging in serious violence against persons or dangerous activities seriously jeopardising public safety or security. Count 3, added before trial as an alternative to Count 2, charged causing grievous bodily harm by dangerous driving under section 36A of the Road Traffic Ordinance.
On 5 February 2021, Secretary for Justice Teresa Cheng issued a certificate under Article 46 of the NSL directing that the case be tried without a jury. The certificate cited the protection of the personal safety of jurors and their families and a real risk that the due administration of justice might otherwise be impaired. The case was therefore tried by Esther Toh, Anthea Pang and Wilson Chan JJ, all designated national security judges. The trial began on 23 June 2021 and lasted 15 hearing days, concluding on 20 July. Tong pleaded not guilty to all three counts.
Pre-trial proceedings Bail and habeas corpus Tong was refused bail at his first court appearance on 6 July 2020 and was remanded in custody pending trial. He subsequently sought a writ of habeas corpus, in proceedings described by the South China Morning Post as the first test of how Hong Kong courts would reconcile common-law rights with the newly imposed NSL. In Tong Ying Kit v HKSAR HKCFI 2133, the Court of First Instance dismissed the application, holding that the proper route to challenge the magistrate's refusal of bail was a review under section 9J of the Criminal Procedure Ordinance rather than habeas corpus.
The Court of First Instance also took a relatively narrow view of the restriction in Article 42(2). In February 2021, the Court of Final Appeal expressly considered that reasoning in HKSAR v Lai Chee Ying HKCFA 3. It held that the approach in Tong had fallen into error by treating Article 42(2) as having little practical impact on the ordinary bail regime, whereas the provision created a distinct and more stringent threshold.
Non-jury trial challenge Tong challenged Cheng's Article 46 certificate by judicial review. In Tong Ying Kit v Secretary for Justice HKCFI 1397, Alex Lee J refused leave to apply for judicial review on 20 May 2021. Tong's case proceeded on the premise that, once an indictment had been preferred in the Court of First Instance, he possessed a constitutional right under Article 86 of the Basic Law to trial by jury. The court rejected that contention and held that an accused could receive a fair trial before judges without a jury. Contemporary reporting noted that the use of Article 46 was a significant departure from the ordinary mode of criminal trial in the Court of First Instance.
Before the NSL was enacted, the Hong Kong Bar Association had warned that excluding a jury for an offence capable of attracting more than seven years' imprisonment would be "a significant departure from previous criminal procedure". Reporting on Tong's Article 46 certificate later noted the association's concern that the Secretary for Justice could remove jury trial without residual discretion being left to the court.
The Court of Appeal dismissed Tong's appeal on 22 June 2021 in Tong Ying Kit v Secretary for Justice HKCA 912. Poon CJHC held that, even assuming that Article 86 entrenched a right to jury trial in the Court of First Instance, the Secretary for Justice's decision to issue an Article 46 certificate was a prosecutorial decision protected by Article 63 of the Basic Law. It was therefore not amenable to conventional judicial review and could be challenged only on the limited grounds applicable to prosecutorial decisions, such as dishonesty, bad faith or exceptional circumstances. Lam VP added that the NSL expressly created trial before three judges as an alternative mode for NSL prosecutions and, where inconsistent local procedural law existed, the NSL prevailed.
Expert evidence on the slogan Before trial, the prosecution sought to call historian Professor Lau Chi-pang as an expert concerning the origin, development and meaning of "Liberate Hong Kong, revolution of our times". The defence opposed parts of his report. In HKSAR v Tong Ying Kit HKCFI 946, the three-judge panel admitted the sections dealing with the historical origin and development of the slogan, holding that they could assist the court in determining its meaning in context.
The court excluded the portions in which Lau sought to give opinions on the meaning of statutory expressions in Articles 20 and 24 of the NSL, including "secession", "altering by unlawful means the legal status" of Hong Kong and "political agenda". It held that interpreting ordinary words in legislation was the function of the court rather than an expert witness.
Alternative dangerous-driving count On 7 June 2021, the court allowed the prosecution to add the dangerous-driving charge as an alternative to Count 2. Tong argued that a three-judge panel constituted under Article 46 lacked jurisdiction over a non-NSL offence. The court rejected the argument because the alternative count arose from the same conduct as the two NSL offences and the proceedings as a whole remained criminal proceedings "concerning offences endangering national security".
The panel further held that Article 46 did not require separate tribunals of fact to try NSL and non-NSL charges properly joined in a single indictment. Requiring the terrorism count to be tried by three judges while reserving its alternative dangerous-driving count for a jury or the District Court would, in its view, be contrary to the interests of justice.
Trial Prosecution case The prosecution case had two principal components. For Count 1, it sought to prove that the slogan on Tong's flag was capable, in the circumstances, of conveying a secessionist message and inciting others to separate Hong Kong from the PRC, and that Tong intended that result. For Count 2, it relied on Tong's route through several police checklines and the eventual collision to contend that he had engaged in serious violence or dangerous activities causing grave harm to society in order to intimidate the public and pursue a political agenda.
The court heard evidence from police officers at four checklines along Tong's route, civilians who witnessed the collision, a forensic scientist and expert witnesses concerning the slogan. CCTV and other video footage formed an important part of the evidence concerning Tong's driving.
Driving evidence Police witnesses testified that Tong ignored repeated directions to stop at several checklines. At the final checkline at Jaffe Road and O'Brien Road, he passed a stationary car and collided with officers. The defence disputed the prosecution's characterisation of the collision as deliberate. Clive Grossman SC suggested that Tong had lost control after being struck or distracted by a police shield, which the officer concerned denied throwing the shield at him.
A government forensic scientist testified that video footage showed Tong's brake light activating shortly before the collision. Under questioning requested by the defence, he said the apparent timing was consistent with a rider perceiving a danger and making an emergency stop. The defence relied on that evidence to argue that Tong treated the officers as obstacles to be avoided rather than targets. The prosecution, by contrast, argued that Tong's route and repeated refusal to stop showed deliberate conduct directed at the police.
Meaning of the slogan A substantial part of the trial concerned the meaning of "Liberate Hong Kong, revolution of our times". Lau, the prosecution expert, traced the slogan to the 2016 New Territories East by-election campaign of Edward Leung and associated it with an objective of separating Hong Kong from the PRC.