Can Benny Tai be prosecuted for independence remarks under Hong Kong law? No, experts say

The row over controversial academic Benny Tai Yiu-ting’s independence remarks intensified on Monday as Beijing mouthpiece People’s Daily demanded the Hong Kong government take legal action against him under the city’s existing criminal law, even if it has yet to adopt national security legislation against sedition. 

A defiant Tai, one of the leaders of the 2014 Occupy protests, complained that Beijing was making an example of him to limit freedom of speech and pave the way for tougher legislation in Hong Kong, while legal experts rejected the idea of prosecuting him under the Crimes Ordinance.

A commentary in the overseas edition of People’s Daily argued that “separatists” were wrong to think they would not be punished without national security legislation in place when they were already violating the Basic Law – Hong Kong’s mini-constitution – and the city’s Crimes Ordinance, which covers seditious intent.

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“While there is no precedent of punishing separatists, an absence of precedent does not mean there is no law to tackle Hong Kong independence,” the commentary read. “The Special Administrative Region government should not tolerate people like Tai who advocate Hong Kong independence and initiate actions that mess up Hong Kong, and should look into his illegal acts to manifest the rule of law.”

Tai hit back on a radio show, citing an old Chinese idiom as he accused authorities of turning him into a chicken that is killed to scare the monkeys in their efforts to intimidate others from exploring if breaking away from China could be an option for Hong Kong. He had suggested at a forum in Taiwan that the city could seek independence some day in a “democratic China”.

“It is a calculated plot against me … to [declare] that any discussion on Hong Kong independence – albeit not directly endorsing [the notion] – will not be allowed in society and universities,” the University of Hong Kong law academic said.

The Department of Justice has not replied to an inquiry from the Post on whether Tai’s remarks carry any legal consequences.

But former director of public prosecutions Grenville Cross told the Post that Tai’s comments did not constitute criminal liability.

“Tai has not actually advocated independence in his Taiwan remarks,” Cross said. “He simply suggested it as one of several possibilities if certain hypothetical events were to happen. This falls short of being criminal under either the existing sedition law or the 2003 [national security law] proposals.” 

Even if one made public statements advocating independence, no law would be broken if it was done peacefully, Cross added, and prosecuting anyone for sedition would require proof of inciting violence, promoting hatred and stirring up ill will.

Law academic Professor Michael Davis also argued that the Crimes Ordinance was subject to free speech guarantees under the Hong Kong Bill of Rights Ordinance and the Basic Law.

“Under such free speech standards, merely offering academic speculation on what might happen in the event of democratic reform or even the likelihood of such reform cannot be a violation of this ordinance,” he told the Post. 

“[Tai’s comment] on these speculative issues at a conference in Taiwan hardly seems subversive. These topics – economic development and political reform, federalism and confederation – being so commonplace in academic discussions, the suggestion that Tai should be dismissed for speaking about these issues seems clearly excessive.”

Tai on Monday also complained he was a victim of a plot to marginalise him from the city’s pro-democracy bloc, especially those hoping to run for election, “purify” society and universities, and pave the way for the legislation of Article 23 of the Basic Law.

Article 23 requires the city to enact national security legislation banning any act of treason, secession, sedition, or subversion against the central government. The government was forced to shelve a bill to that effect in 2003 after half a million people took to the street fearing their freedoms and rights would be curbed.

“What I said would not have violated the drafted bill in 2003 … as the definition of the offence must involve violence,” Tai said. “But if Article 23 is to make a comeback, it surely would not be the same as the 2003 version, whose power was relatively small.”

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He expected Beijing would now push for a bill making any talk it did not like – even if it did not involve any violence – punishable under Article 23. If that happened, it would certainly limit the scope of free speech protected by the International Covenant on Civil and Political Rights, Tai added.

Tai refused to apologise for his independence remarks, which he argued were made in an academic context, and accused authorities of quoting him out of context.

This came as 24 pan-democratic lawmakers issued a joint statement to back Tai, vowing to “resolutely defend academic freedom” and insisting the law scholar was entitled to his academic analysis. 

They urged all parties to stop attacking Tai, and warned that “Hong Kong will no longer be Hong Kong” without free speech.

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Three major blocs in the opposition camp – the Democratic Party, the Civic Party and the Professionals Guild – also issued separate statements to reiterate they were against the notion of Hong Kong independence, while accusing Beijing and others of leading a “Cultural Revolution-like denouncement” against Tai and creating a chilling effect.

The political storm erupted on Friday when the Hong Kong government issued an unusually sharp statement against Tai for suggesting the city could “consider becoming an independent state”. 

Video footage of the seminar showed Tai making the full argument that the country’s various ethnic groups could exercise their right to self-determination and decide how they could link up with each other, such as through independence, a federation or a confederation, should China become democratic.

The condemnation was soon echoed by two separate, rare statements issued by the State Council’s Hong Kong and Macau Affairs Office and Beijing’s liaison office in Hong Kong. Officials accused Tai of attempting to split the country, and their sentiments were in step with those voiced by the city’s pro-establishment lawmakers.

Additional reporting by Alvin Lum