By Jessie Pang
HONG KONG (Reuters) – Three Hong Kong High Court judges on Thursday rejected an appeal by prominent pro-democracy activist Tam Tak-chi against his conviction and 40 month sentence for 11 sedition charges that his lawyer had argued was a disproportionate restriction on freedom of speech.
In dismissing Tam’s appeal, High Court judges Jeremy Poon, Derek Pang and Anthea Pang said sedition is a statutory offence and intention to incite violence is not a necessary element of the offence.
“The submission that the exercise of the right of assembly should qualify as a mitigating factor in the present case ignores the fact that the applicant was being punished for the very act of inciting others to participate in, or holding, an unauthorised assembly, which is an illegal act going outside the permissible scope of the right,” the judges wrote.
Tam, 51, a leader of the now-disbanded People Power party and a former radio host and DJ known as “Fast Beat”, was the first Hong Kong person tried on a sedition charge since the city’s handover from British to Chinese rule in 1997.
Tam was sentenced to 40 months in 2022 by District Court Judge Stanley Chan over 11 charges that included uttering seditious words, public disorder and incitement to take part in an unauthorised assembly.
This case comes as Hong Kong authorities prepare to release a proposed new set of national security laws known as Article 23 aimed at addressing what officials call loopholes in the national security regime, which was bolstered just four years ago by another national security law imposed directly by China.
Among those crimes targeted are espionage, state secrets and sedition, which could see the current sentences substantially raised for sedition.
The ruling could impact other closely watched sedition cases, including a verdict against two editors of the now shuttered liberal online media outlet Stand News, which is seen as a test case for media freedoms under the security clampdown.
“Words are not spoken in vacuum and cannot be understood in abstract. They must be understood against the contemporaneous socio-cultural and political setting of society,” the judges said. “Thus, words which were innocent in the past may have become offensive now with the change in the state of society.”
Last October, the UK Judicial Committee of the Privy Council ruled that it is “a requirement that there must be an intention to incite violence or disorder” for sedition offences.
The Privy Council’s judgement was not binding in Hong Kong courts, although the city remains part of the British-based common law system.
The judges, however, said it wasn’t necessary for the prosecution to prove the defendant’s intention was to incite violence, and consideration must be made to “the specific legal and social landscape” in which the criminal code exists.
Tam had appealed last July.
He was arrested in 2020 after Beijing imposed a sweeping national security law punishing secession, subversion, terrorism or collusion with foreign forces with up to life in prison.
Tam is among 31 opposition figures awaiting sentencing for another landmark national security case involving “conspiracy to subvert state power”.
(Reporting by Jessie Pang; Editing by Greg Torode, James Pomfret and Michael Perry)
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