British Foreign Secretary Dominic Raab did not wait but rushed to issue a protest statement on his Twitter account shortly after the police arrest on Sept 8 of the four office bearers of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China. He tweeted, “Today’s arrests of members of the Hong Kong Alliance are another chilling demonstration of how the national security law is being used by Beijing to dismantle civil society and stifle political dissent in Hong Kong”. Raab will regret his hasty ill-thought-out response, which will undoubtedly be taken as excellent circumstantial evidence of the alliance acting as a British agent!
The case is a simple and straightforward commission of an offense under Hong Kong law. The alliance had organized numerous anti-China political protests over the years and invited overseas participants to speak at the events. It even openly declared its mission is to topple China’s political system. Given the scale and frequency of its political campaigns, it clearly had enormous resources at its disposal. It is only logical to suspect that the alliance may have been receiving covert support from anti-China foreign and Taiwan authorities. Either based on complaints it received or on its own initiative, the Hong Kong police’s National Security Department was expected to conduct an in-depth investigation into the affairs of the alliance sooner or later. As part of the investigation, the NSD is vested with statutory powers to issue a request to the alliance to provide details of its financial affairs. The request was made pursuant to Schedule 5 of the Implementation Rules for Article 43 of the Hong Kong National Security Law, which states that with reasonable grounds, Hong Kong police can require organizations or agents to provide information on their assets, sources of income, and expenditures in Hong Kong within a specified period for the prevention and investigation of an offense endangering national security.
Would the UK tolerate anyone who openly defied its Inland Revenue Department’s request for tax-related information? (Dominic) Raab clearly either had not acquainted himself with the details of the case, or he is once again politicizing a strictly law enforcement issue to discredit the Hong Kong Special Administrative Region government
The requested information includes its membership, operations, finances, and related activities, which the alliance was supposed to have available if it is a properly run organization. As the police have pointed out, such requests have been made over the year to a number of organizations in its investigation of national security offenses. While most organizations have dutifully submitted requested information, some had requested an extension for their submission, which would normally be granted if reasonable.
If the alliance had nothing to hide, there is no reason why it could not provide the information as requested, which could have exonerated it of any suspected illegalities. Instead, it waited until two days before the deadline to declare at a news conference on Sept 5 that it would not accede to the NSD’s request, in open defiance of the law. Immediately after the news conference, the police issued the alliance with a stern warning that it must comply with the request or face legal consequences. The police reminded the alliance that failing to provide the information in time will leave it liable to a fine of HK$100,000 ($12,850) and imprisonment for half a year. The alliance could have rectified its initial defiance. Instead, on the very day of the deadline, it staged another public display of defiance by marching to the police headquarters to present its refusal letter.
To emphasize Hong Kong’s strict adherence to the rule of law, the NSD had no alternative but to arrest the four office bearers of the alliance on Sept 8. As a spokesman for the Security Bureau explained, “Ignoring warnings given, the organization concerned resolutely insisted on refusing to comply with the police’s requirement to provide information pursuant to Schedule 5 of the Implementation Rules. Hence, the police must take law enforcement actions which are based on evidence, strictly according to the law, and for the acts of the persons or entities concerned.”
Had Raab been briefed on the full circumstances leading to the arrest before his unequivocal condemnation of the police action? As a lawyer, he should know that the actions taken by the NSD police are in strict conformity with standard law enforcement practice in all common law jurisdictions. During the British colonial era in Hong Kong, one commonly used piece of legislation was the Prevention of Bribery Ordinance, enacted as early as 1974, which empowers the commissioner of the Independent Commission Against Corruption to request from any person or organization the production of accounts, books and documents, if the commissioner is satisfied that there is reasonable ground to believe that an offense under the Ordinance may have been committed. This is commonly known as the Section 13(1) Authorization, which is still widely used in many ICAC investigations and has never been challenged. The rationale of the law is simple. Corruption is a secret crime, and therefore adequate investigative power to obtain information is necessary to break the secrecy. The same principle applies to national security offenses, particularly when it is suspected that foreign agents might be involved. In the case of the NSD police order, the order needs to come from the commissioner of police personally and has to be approved by the secretary for security before being issued. This represents a double layer of accountability to guard against abuse of authority, which is higher than the ICAC Section 13(1) Authorization. The United Kingdom has similar legislation. So how can Raab justify his criticism that the NSD request for information could “dismantle civil society and stifle political dissent in Hong Kong”? Would the UK tolerate anyone who openly defied its Inland Revenue Department’s request for tax-related information? Raab clearly either had not acquainted himself with the details of the case, or he is once again politicizing a strictly law enforcement issue to discredit the Hong Kong Special Administrative Region government.
At its news conference, the alliance’s vice-chairman, Chow Hang-tung argued that the NSD police had failed in the notice to show any evidence that the alliance is a foreign agent. As a barrister, Chow should know better. First, there is no such requirement in the law; and second, it is absurd to expect the police to reveal their evidence to the subject of an ongoing investigation. The NSD’s response was to have her arrested and charged with “Inciting subversion of State power”, together with the other two leaders of the alliance — Lee Cheuk-yan and Albert Ho Chun-yan — as well as the alliance itself. As this prosecution needs to be endorsed by the secretary for justice, it is safe to assume that the police must already have sufficient evidence of the alliance acting as a foreign agent. Furthermore, the premises of the alliance were searched under a court warrant, which indicates that the court is equally convinced of the reasonable suspicion that NSL offenses had been committed by the alliance.
The truth is that the refusal is likely a delaying tactic of the alliance in buying time to destroy the voluminous evidence of its relationship with foreign forces and Taiwan authorities and to alert all of its foreign supporters to do the same. Perhaps it can also buy time for its contacts in the United States and British consulates and their families to flee Hong Kong to evade arrests. With more and more NSD cases exposed and appearing before court, a clearer picture will soon emerge of the role of foreign agents in their failed attempt to mount a “color revolution” in Hong Kong. That is probably the real worry of Raab, which prompted his very unlawyerly knee-jerk condemnation of the NSD’s legitimate law enforcement action!
The author is an adjunct professor of HKU Space, a council member of the Chinese Association of Hong Kong and Macao Studies, and a former deputy commissioner of the ICAC.
The views do not necessarily reflect those of China Daily.