26 March 2020
Civil Rights Observer (CRO) criticises the arrest of the chairperson of the Central and Western District Council Cheng Lai-king under sections 9 and 10 “seditious intention” of the Crimes Ordinance. CRO believes the arrest is unlawful and is made based on outdated law. It violates the freedom of expression guaranteed by international human rights law and the Basic Law and may have a chilling effect.
The freedom of expression covers acts and speeches that maybe offensive to others or government without constituting immediate violence. The Hong Kong Court of Final Appeal has held “the freedom to demonstrate is a constitutional right. It is closely associated with the freedom of speech. These freedoms of course involve the freedom to express views which may be found to be disagreeable or even offensive to others or which may be critical of persons in authority. These freedoms are at the heart of Hong Kong’s system…” (Yeung May Wan and Others v HKSAR, FACC No. 19 of 2004)
Cheng Lai-king shared a post on Facebook which contained a photo and information of a police officer who was suspected of shooting Indonesian journalist Veby Mega Indah in the eye with projectiles in September last year. Cheng’s caption reads, “If this police officer has conscience, please surrender! An eye for an eye.” and two crying face emojis.
CRO believes that the current sedition law violates the rights to freedom of expression protected by international human rights law and the Basic Law. The Hong Kong Police Force claimed that Cheng’s post would promote feelings of ill-will and enmity between different classes of the population of Hong Kong, or incite persons to violence, therefore she has committed an offense under sections 9 and 10 of the Crimes Ordinance. Such interpretation is unreasonable. Cheng’s speech does not incite violence; she asked the police officer to surrender peacefully.
According to section 9(2)(b) of the same ordinance, to point out errors or defects in the government 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, or, according to section 9(2)(c), to persuade Central People’s Government of the People’s Republic of China or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established, is not seditious. Also, “an eye for an eye” as an idiom should not be overinterpreted.
According to the Crimes Ordinance, no prosecution for an offense under Section 10 shall be instituted without the written consent of the Secretary for Justice. In view of the rare use of this legislation and the significant human right issues involved, it would have been extremely hasty if the Hong Kong Police Force had not consulted the Department of Justice before the arrest. The Hong Kong police should be prudent and exercise restraint when performing arrests and should not abuse their powers and violate human rights.
CRO warns that abuse of public powers to perform arbitrary arrests is not only unlawful, but also an infringement of the rule of law. The Department of Justice is obligated to communicate with the Hong Kong Police Force, to ensure the arrest is only done on a sufficient legal basis.
At root, the issue is the Hong Kong Police Force’s refusal to disclose the identity of the police officer in Indah’s case. If the Hong Kong Police Force is held accountable to the public by disclosing the information to victim, investigating police misconduct and compensating the victim, there will be no need for the public to trace the identity of the police officer involved.