Fighting for Democracy Is a Crime in Hong Kong

A Hong Kong court just handed out heavy sentences to 45 democracy activists. The pro-Beijing government is taking a hard line against anyone who would challenge it.

By Michael C. Davis

November 2024

Hong Kongers woke up this past Tuesday, November 19, to the news that 45 of the city’s most respected democratic leaders and activists had been sentenced to prison, with terms ranging from four to ten years, for their roles in organizing an unofficial primary election in July 2020. The democratic world looked on in distress.

The goal of the primary had been to choose the best slate of prodemocracy candidates for elections to the Legislative Council — the unicameral mini-parliament governing Hong Kong — scheduled for September 2020. The Legislative Council elections had long been weighted to guarantee a majority for the progovernment camp through a system of functional constituencies (essentially, interest groups) for half the seats. If the democratic opposition could have managed to elect a majority in the September 2020 polls, the plan was to push the Beijing-appointed government to meet demands for democratic reform, or else be forced to resign under an arcane provision in the Basic Law, the city’s mini-constitution. In essence, these leaders and activists were attempting to use democratic means to ensure democratic reform.

The court concluded that this amounted to an attempt to overthrow the government.

The stiffest sentence went to law professor Benny Tai, who was accused of hatching and organizing the scheme. He and three others — Andrew Chiu, Au Nok-hin, and Ben Chung — were effectively treated as principal offenders. Tai received ten years; the other three received reduced sentences for testifying for the prosecution. The remaining 41 defendants were categorized as active participants. Many who pled guilty, including the well-known student leader Joshua Wong, received sentences of four to five years as mitigation for their pleas; those who pled not guilty and were convicted at trial received sentences of six to seven years. The government has indicated that it will review the results carefully, and may appeal some sentences as too light.

These harsh prison terms underscore the injustice of the criminal proceedings and the failure of the “one country, two systems” promise to Hong Kong. The outcome of these cases is just the latest in a longer story of the city’s constitutional development, tracing back to and beyond the city’s 1997 handover from Britain to the People’s Republic of China. The 1984 Sino-British Joint Declaration that facilitated the handover required that the rule of law and the liberal human-rights protections the city then enjoyed as a British colony not only be maintained but further bolstered by some degree of democratic reform. The Hong Kong Basic Law made this explicit, noting the “ultimate aim” of universal suffrage for electing the Legislative Council and the chief executive.

Until that latter requirement could be achieved, the chief executive was to be chosen by the Election Committee, whose members were mostly selected by various business and progovernment functional sectors. Half of the Legislative Council was likewise chosen by similar functional constituencies. The result was that Beijing largely controlled who oversaw the Hong Kong government, and pro-Beijing legislators were virtually guaranteed a majority. In the first two decades after the handover, prodemocracy opposition candidates would consistently win nearly 60 percent of the popular vote for the directly elected half of the Legislative Council but receive only a minority of the total seats. As the pro-Beijing government increasingly surrendered the city’s promised autonomy and endangered its liberal values and institutions, Hong Kongers began protesting to demand their promised universal suffrage with free and fair elections.

This all came to a head in two watershed moments: First, the 2014 Umbrella Movement, when Hong Kongers protested for genuine universal suffrage, and again in the massive 2019 demonstrations against a government-proposed extradition bill — a movement that morphed into a demand for democratic political reform.

In 2019, Tai wrote a couple of op-eds proposing the “scheme” for an unofficial primary to unify the democratic opposition and use such unity to finally gain a majority in the Legislative Council. This majority would then seek to force the government to either accede to democratic reforms or be brought down by a budget veto under a provision of the Basic Law, in what Tai described as “mutual destruction.”

On 30 June 2020, less than a month before the plan for the primary could be fully executed, Beijing imposed the new National Security Law (NSL), which precipitated a massive crackdown in Hong Kong. The NSL effectively imported the mainland national-security regime, which is notoriously hostile to the democratic and liberal principles long valued in Hong Kong. As a national law, the NSL superseded the Basic Law wherever the two conflicted, essentially overthrowing the city’s liberal constitutional order.

The opposition democrats went ahead with their primary as scheduled in early July 2020 — with 610,000 voters participating — while Beijing and Hong Kong officials went on the attack. On July 30, Hong Kong authorities disqualified twelve democrats who remained in the Legislative Council, nine of whom had participated in the primary election. The next day, Chief Executive Carrie Lam announced that the September 2020 election would be postponed, blaming covid-19. This attracted suspicion, which proved justified when Beijing scrapped the Legislative Council’s existing electoral system and replaced it with a “patriots only” system that employs a complex scheme of vetting and nominations, effectively barring participation by opposition candidates. The new system surrenders most electoral control to an expanded, Beijing-friendly Election Committee that chooses the chief executive and nearly half of the similarly expanded Legislative Council. The number of directly elected seats was greatly reduced from half to less than a quarter.

On 6 January 2021 the national-security police, a special unit of the Hong Kong Police Force created under the NSL, arrested 55 people who organized or participated in the primary. On February 28, 47 of the arrestees were charged under the NSL with “conspiracy to commit subversion.” A four-day hearing commenced the following day, in which most of the 47 were denied bail per the NSL’s special presumption against it. A year and a half later, on 16 August 2022, Secretary for Justice Paul Lam used his special authority under the NSL to deny the defendants the common-law right to a jury, as he would continue to do in every NSL case, including the now-infamous ongoing prosecution of Apple Daily publisher Jimmy Lai.

Given these obstacles and the conclusion that a conviction was unavoidable, 31 of the defendants pled guilty, hoping to have their sentences reduced by a third. The sixteen who pled not guilty eventually went to trial on 6 February 2023. On 30 May 2024, more than three years after their incarceration, fourteen of the sixteen who pled not guilty were convicted. Those who pled or were found guilty finally received their sentences this past week.

For more than four years after the original primary election, the defendants endured endless political attacks, removal from their homes and communities, and denial of bail and the basic right to a jury. And now they have received stiff sentences, resulting in yet more years of incarceration.

There was neither violence nor unlawful deeds in the defendants’ actions. A primary election, by definition, should be considered protected speech. Using provisions in the Basic Law to pressure a government to meet its commitments under that law should likewise be protected as fundamental to democracy. The fact that the government never actually faced such pressure given the September 2020 election’s postponement further attests to the absurdity of the charges.

In finding the defendants guilty, the court concluded that their activities risked fomenting a constitutional crisis. Nobody could have missed the irony — a government that overthrew the liberal constitutional order provided in the Basic Law accusing those who would defend that order of conspiracy of subversion.

These 45 defendants are among Hong Kong’s most dedicated citizens. Many spent years serving their communities and fighting for basic rights. The democratic opposition had consistently won a majority of the votes for those legislative seats where direct elections were allowed. In these harsh convictions, the will of the people is being ignored and the rule of law degraded. It is now undeniable: Advocating for democracy and human rights in Hong Kong is indeed a crime.

Michael C. Davis, a Global Fellow at the Wilson Center and a former law professor at the University of Hong Kong, is the author of Freedom Undone: The Assault on Liberal Values and Institutions in Hong Kong.

Copyright © 2024 National Endowment for Democracy

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