Hong Kong localism and independence

Pro-independence supporters in Hong Kong could escape legal risk claiming they protest in personal capacity, scholar says

While recent banning of political party set a precedent, absence of national security law helps sympathisers, top HKU academic argues

PUBLISHED : Tuesday, 02 October, 2018, 10:00pm
UPDATED : Wednesday, 03 October, 2018, 12:45am

Pro-independence groups that protested in Hong Kong on Monday could risk being banned like the outlawed separatist party they back, but individual participants could escape legal responsibility by claiming they acted in their personal capacity, a leading scholar told the Post.

University of Hong Kong law professor Albert Chen Hung-yee said the three localist groups’ taking part in the rally, coupled with their year-long advocacy of breaking from China, may have committed similar acts that got the Hong Kong National Party banned.

About 30 pro-independence activists joined a rally organised by pro-democracy group Civil Human Rights Front on National Day. Their ranks included members of Studentlocalism, Students Independence Union, and Hong Kong National Front. All three have in the past advocated the city’s separation from China and hosted street booths promoting their stance.

“HKNP’s case has provided a precedent,” said Chen, who advises Beijing on Hong Kong’s mini-constitution and served as a member of the Basic Law Committee. “If pro-independence groups have been doing similar things, the government could ban them.”

“The matter could very well end up in court.”

One area of uncertainty would be the capacity in which protesters took part. Studentlocalism clarified on Tuesday that its members only acted on Monday in their personal capacity.

There’s no way to prohibit anyone advocating independence in a personal capacity
Albert Chen Hong-yee, HKU law professor

Some who rallied did not raise banners or flags identifying an affiliation with a particular group, while localist Sixtus Baggio Leung Chung-hang, ousted last year from the Legislative Council for his improper oath-taking, identified himself throughout the march as the Hong Kong National Front’s convenor.

Chen said the Societies Ordinance – which Secretary for Security John Lee Ka-chiu cited last week in announcing his decision to ban the HKNP – could only be used against pro-independence groups.

“Hong Kong currently has no law directly prohibiting individuals advocating city’s independence,” Chen added. “There’s no way to prohibit anyone advocating independence in a personal capacity.”

His fellow HKU legal scholar, Eric Cheung Tat-ming, echoed that view, saying such people were in no danger of “being banned”.

The protesters on Monday made a point throughout the march of avoiding spelling out their support for the banned HKNP. Instead, they opted to chant slogans such as “Hong Kong is not China”. It was not until the end of the rally that many started shouting support for HKNP founder Andy Chan Ho-tin.

Absent explicit backing, Cheung noted, the protesters were not providing “aid” to the outlawed party.

Under the ordinance, being a member of or providing money or aid to an unlawful society is punishable by a year in jail and a fine of HK$20,000 (US$2,500). The greater offence of “assisting in managing” an unlawful society could result in a jail term of three years and a HK$100,000 fine.

“All they were doing was expressing an opinion, and that would not be providing any aid,” Cheung said of the protesters on Monday.

Criminal lawyer and former deputy director of prosecutions John Reading SC believed that pursuing the cause of independence, albeit controversial, is not illegal, at least until a national security law is enacted.

“There needs to be some positive acts to constitute aiding [an unlawful society],” Reading said. “For now, it seems a bit remote to say there’s any actual connection between them.”

Police on Tuesday said they would not comment on individual cases and would act in accordance with Hong Kong laws.

Political observers said the government might proceed with caution before shifting its attention to other pro-independence groups.

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Lau Siu-kai, vice-chairman of The Chinese Association of Hong Kong and Macau Studies, said since the HKNP was the first political party in city history to be banned, officials might wait for the its legal challenge to reach the Court of Final Appeal.

“The government might wish to establish a legal precedent so it can effectively crack down on other independence groups,” Lau added.

But Lau noted that if separatist groups grow even more active locally, officials might feel pressure to issue a second or third ban sooner than later.

“From Beijing’s perspective, the court case might not be as much of a concern as making a point to separatists.”