Inside the Surreal Trial of Tong Ying-kit, the ‘Most Benevolent Terrorist in the World’
A national security law is remaking Hong Kong in China’s image. Will the city’s cherished courts be spared? Photo: AP Photo/Vincent Yu

Inside the Surreal Trial of the ‘Most Benevolent Terrorist in the World’

Breaking silence, a Hong Kong judge calls the city’s first national security case “unfair” in an exclusive interview with VICE World News.
September 20, 2021, 10:24am

HONG KONG – When the court read out his guilty verdict, Tong Ying-kit stared straight ahead and touched the knot of his tie. On July 27, Tong became the first person convicted under Hong Kong’s national security law, which Chinese authorities described as a “sword” hanging over the heads of those who would threaten the country. For the 24-year-old former waiter, the blade had been swung.

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And in a rare break from protocol, a Hong Kong judge has now spoken candidly with VICE World News about what they considered to be an alarming outcome in Tong’s case. As the de facto test case of the new law, Tong was found guilty of terrorism and inciting secession, for which he was sentenced to nine years in jail

“Privately, I felt this case was unfair. This is not how the law should work,” the judge said during an exclusive interview.

Tong’s case offered a glimpse of a once-proud institution in a crisis of confidence. For years, Hong Kong’s courts had been regarded as professional and independent, serving as a last line of defence in a society that lacked fully democratic elections. But the political landscape has changed: After Hong Kong’s pro-democracy protests were quelled last year, China demanded “comprehensive governance” over the city and cracked down on all opposition. The judiciary was caught right in the middle.

Much of this crackdown was driven by the national security law, which Beijing imposed on Hong Kong just over a year ago. The public and local lawmakers were never consulted. The law criminalises a wide range of activities under the headings of “secession”, “subversion”, “collusion” and “terrorism”, and offenders can be punished by up to life imprisonment. Critics—most notably the U.S., the UK and the European Union—have expressed concerns that the law would undermine the former British colony’s considerable autonomy and freedoms.

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When Tong was convicted and jailed, opinions were predictably split. Top government officials dismissed foreign criticism and said the result showed Hong Kong still enjoyed the rule of law, a view echoed by some members of the legal community. For others, however, Tong’s case raised uncomfortable questions: Did local judges succumb to pressure from an authoritarian regime? And if so, how far exactly had Hong Kong fallen?

The judge, who spoke to VICE World News anonymously due to the sensitivity of the matter, said that the court relied on a “questionable” understanding of criminal law concepts and sentenced Tong too harshly. That assessment was based on the judge’s prior experience, though they had no involvement in Tong’s trial.

“[Tong] didn’t do much of anything—he didn’t commit murder or arson,” the judge said wryly. “He is the most benevolent terrorist in the world.”

Reached by VICE World News for comment, the judiciary said its members should not speak to the media about politics, social controversies or unfinished court cases, and declined to comment on any specific views expressed by the public or by judges.

Inside the wood-panelled courtroom, Tong was often seen taking notes with an air of quiet concentration. Tall and broad-chested, he sat in the dock with his head down, listening intently to the Cantonese translator as his fate was being decided. He wore the same black shirt and tie every day, paired with a navy suit jacket and thick-rimmed glasses. From start to finish, he exercised his right to remain silent.

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According to what was revealed in court, Tong used to live with his father and sister in public housing and supported the family with his paycheque. It was unclear when he started taking an interest in politics. During the 2019 street clashes, he was once photographed in an outfit resembling that of a combat medic, which was probably how he got his nickname, “Heavy Armour”. Tong reportedly provided first aid to people injured at protests, which impressed the boss of a neighbourhood tea-drink store and landed him a job there. Asked to use a more work-friendly nickname, he called himself Leon.

Everything changed on July 1, 2020, at a time when Hong Kong’s citywide protest movement was on the ebb. The national security law had just come into effect the day before, and some demonstrators took to the streets in protest. Tong drove his motorcycle across the city while flying a flag with the slogan “Liberate Hong Kong, revolution of our times”. Since he chose not to testify in court, the motives behind this act were left open to debate.

Tong’s route took him through some of the busiest districts on Hong Kong Island. At around 3:30 PM, his vehicle sped past a few police checkpoints and eventually collided with officers, injuring three of them. The officers were briefly hospitalised, with the most serious injury being a thumb dislocation. The government response was swift: Prosecutors accused Tong of using the flag to incite secession and said his crash had been a terrorist act.

After his arrest, Tong was detained for almost a year without bail—a testament to how the national security law had changed Hong Kong’s criminal justice system in a tangible way. In the past, prosecutors were required to prove why a suspect must stay behind bars while waiting for trial; under the new rules, the burden fell to the suspect, to show they would not break the law if temporarily released.

The next surprise was that Tong would be tried without a jury. The government said, without elaboration, that the decision was intended to protect jurors’ safety. Objections from the defence were dismissed, and the case ended up being heard by a panel of three judges, who were among a list of candidates picked by the city’s leader to oversee national security cases.

“There must be some other way apart from abolishing the whole system.”

In their interview, the judge said that, before Tong, they had never heard of jury-less criminal trials at the High Court. It was standard to have a jury even in cases involving triad bosses or violent sociopaths. If the government wanted to protect jurors, the judge said, “There must be some other way apart from abolishing the whole system.”

In a statement to VICE World News, the judiciary said the Basic Law—Hong Kong’s constitutional document that sets out the “one country, two systems” arrangement under Chinese rule—never guaranteed the right to a jury trial and that fairness could be achieved by other means. 

“When personal safety of jurors and their family members is under threat and due administration of justice might by impaired... The only assured means for achieving a fair trial is a non-jury trial by a panel of three judges,” it said, adding that this mode of trial served the interests of both sides.

At the center of Tong’s case is the slogan “Liberate Hong Kong, revolution of our times”, which became popular during the 2019 protests. Photo: Alastair Pike / AFP

At the center of Tong’s case is the slogan “Liberate Hong Kong, revolution of our times”, which became popular during the 2019 protests. Photo: Alastair Pike / AFP

If a casual observer attended the 15-day trial, they might be thrown off by how normal everything seemed. On the surface, it was nothing like the politically sensitive trials held in mainland China. Hong Kong’s judiciary follows the common law system, which it inherited from British colonial rule: Barristers still call each other “learned friend” and senior judges wear wigs. 

Faced with the novelty of the national security law, the court fell back on its familiar routines. Lawyers would deliver opening speeches, hear witness testimony, conduct cross-examination and so on. The three judges limited themselves to asking about technicalities, rarely expressing their opinions out loud. Prosecutors called more than a dozen police officers to testify on Tong’s behaviour, and after a certain point, the prevailing mood in the public gallery was not tension but boredom.

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Yet this careful choreography did not stop things from going off the rails. One example was the dispute over how to interpret the “Liberate Hong Kong” slogan, which became massively popular during the 2019 protests and was chanted by hundreds of thousands of people. 

Tong’s case involved a high-profile motorcycle crash, but the real heart of the case was the slogan. Prosecutors argued that the phrase advocated separating the city from China, which would make it a crime of secession. The defence said that the expression was ambiguous, and that Tong never meant to call for separatism.

To figure out the slogan’s meaning, the court sought the help of expert witnesses. The prosecution summoned a historian, while the defence called a politics professor and a journalism scholar. What ensued was a full week of abstract debate, with topics ranging from the Pearson correlation coefficient to the razing of Xanadu in the 14th century.

“My opinion is that the usage of [the term ‘liberate’] has not changed from the period of Three Kingdoms to modern China,” the prosecution expert told the court. “It has had the same meaning for more than one thousand years.”

Was Tong being judged for his own actions, or was he somehow answering for things far larger than himself?

The slogan’s meaning proved difficult to nail down in a court of law, and for good reason: It encapsulated the ideals of what was arguably the most dynamic, complex social movement in Hong Kong’s history. During these long discussions, one might be forgiven for wondering who was really on trial. Was Tong being judged for his own actions, or was he somehow answering for things far larger than himself? 

According to the anonymous judge, expert testimony is useful for the court to understand matters outside the legal realm—but for interpreting political slogans, it is a flawed tool. This is precisely the kind of question best left to a jury’s “common-sense approach”, as opposed to judges thinking in an overly legalistic way, the judge said. But with the removal of the jury in Tong’s case, this became impossible.

As for the prosecutors, they jumped at every opportunity to draw a connection between the slogan and secession. The lead prosecution lawyer at one point accused Malcolm X of being a separatist, noting that the person who created the “Liberate Hong Kong” slogan once cited the African American political icon in a 2016 campaign speech. What this had to do with Tong was anyone’s guess.

What made the whole affair even more Kafkaesque was the fact that, in their own documents, prosecutors at first did not recognise the name Malcolm X. The person responsible for video transcripts had written down the name as gibberish.

Protesters look on as a barricade burns during demonstrations through the streets of Hong Kong on the 70th anniversary of the founding of the People’s Republic of China in 2019. Photo: Anthony WALLACE / AFP

Protesters look on as a barricade burns during demonstrations through the streets of Hong Kong on the 70th anniversary of the founding of the People’s Republic of China in 2019. Photo: Anthony WALLACE / AFP

In the end, the judges ruled against Tong on almost every issue. Everything about his motorcycle parade—the date, time, location and driving route—had been designed to draw public attention to his show of “obvious and open defiance,” the judges said.

“The defendant’s failure to stop at all the police checklines, eventually crashing into the police, was a deliberate challenge mounted against the police, a symbol of Hong Kong’s law and order,” they wrote in their judgment.

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As for the slogan, the judges did not give a clear-cut interpretation. They said the words were capable of inciting secession, but the deciding factor was the intent of the person using it—something that could vary widely from case to case. For Hong Kongers looking for practical guidance, this was not especially helpful. If an ordinary person were to use the slogan today, they would have no way to know for sure if they were breaking the law.

It was also worth noting that, in the 62-page judgment, the phrase “freedom of speech” did not appear.

For longtime observers of Hong Kong courts, the trial’s result followed an established trend. Studies have shown that local judges adopt a “more conservative decision-making pattern” in cases concerning China’s core interests, according to Julius Yam, a Hong Kong legal scholar researching the interaction between courts and politics in non-democratic regimes.

Around the world, courts in non-democratic regimes are caught between a rock and a hard place. “It is often unclear how courts should position themselves,” Yam told VICE World News. If they always side with the public, they might attract a backlash from the regime; but if they regularly side with the government, they risk undermining their legitimacy.

Yam said that Hong Kong courts had a tactic for keeping themselves popular—at least before the current era of Beijing supremacy. In high-stakes political cases, the courts would align themselves with the regime’s interests, but outside of that, they can find opportunities to get back into the public’s good graces. In cases concerning LGBTQ rights, for example, Hong Kong courts could afford to be very liberal, Yam said.

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In response, the judiciary said in a statement that Hong Kong’s courts “shall exercise judicial power independently, free from any interference,” as per the Basic Law. Judges are constitutionally required to handle cases—including those related to national security—without fear or favour, self-interest or deceit, it added.

While the judiciary would deny any charge of bias, the public might not be entirely convinced. According to the Hong Kong Public Opinion Research Institute, survey respondents used to score “fairness of the judicial system”, “impartiality of the courts” and “rule of law” at roughly 6.5 out of 10. That figure stayed virtually the same for two decades. After the 2019 protests and an accompanying spike in prosecutions, the score now hovers at around 4.5.

Last month, Tong’s legal team filed an appeal against both conviction and sentence. The legal battle is far from over, but the case has already set a precedent that will shape how lawyers argue and how offenders are sentenced. With more than 60 people—including activists, politicians, journalists and lawyers—pending trial under the national security law, the impact of Tong’s case will be felt for years to come.

Andrew Powner, managing partner of the Hong Kong law firm Haldanes, said the biggest takeaway from Tong’s case was that the rule of law was alive and well. Asked about the national security law’s impact on courts, he replied: “It’s business as usual.”

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“My colleagues in the criminal law profession were not surprised,” he said, referring to the verdict and sentence. “What happened was quite reassuring for many.”

Powner considered Tong’s nine-year jail term to be relatively lenient, and said the appeals process would help further clarify the law. “In many countries, particularly in the U.S., if you were to drive a motorbike around police cordons and crash into a group of policemen, very, very likely you would be shot dead.”

The anonymous judge who spoke to VICE World News disagreed, saying that Tong’s penalty was too severe for what was essentially a traffic offence. Had Tong been charged with dangerous driving, the facts of his case would result in three years’ imprisonment at most, the judge said.

The judge was also less sanguine about the future of Hong Kong’s courts and their ability to stay independent in politics-related cases. “We might become more like Singapore. The business law is fine, but there’s a big problem in criminal law and human rights,” which would disproportionately affect local residents, they continued.

The judge compared the national security law to heart disease—but hastened to add it was no reason for despair. “It’s a sign of danger. If it continues to develop, it will lead to cardiac arrest. But is it fair to say a person is worthless just because of a heart condition? No, the body is still there to compensate.”

In response to VICE World News, the Hong Kong judiciary said it would not comment on any remarks, “including those said to be made by a judge,” on judicial decisions in individual cases.

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“In view of the independence and impartiality of the judiciary, judges do not express views in public or to the media on political matters or issues that are controversial in society, or on cases that are still pending before the courts or under appeal. Nor do they comment on legal issues which may likely come before the courts,” it added.

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Lawyer Lawrence Lau (center) stands outside West Kowloon court in Hong Kong on March 5 after being released on bail for the charge of “conspiracy to commit subversion”. Photo: ISAAC LAWRENCE / AFP

In the years since Hong Kong’s transfer of sovereignty in 1997, local authorities have insisted that the judiciary is independent and, to some extent, lives in a bubble of its own—despite that idea being firmly rejected by their masters in Beijing. As the national security law reshapes Hong Kong, that tension has come to a head. Even in the windowless courtroom where Tong was tried, there were nagging reminders of the reality outside. 

One of Tong’s defence lawyers, Lawrence Lau, was himself charged with subversion in another national security case. Lau was briefly detained in March before being released on bail. A sharp dresser with a flamboyant side, Lau painted the nails of his thumbs orange; on one side was written the Chinese character “Ying”, and on the other “Kit”—the name of his client.

Or take, for instance, the prosecution’s use of video footage from Apple Daily, formerly Hong Kong’s largest pro-democracy newspaper. As the videos were being used to mount a case against Tong, a separate case was being built against the paper’s journalists. Authorities earlier this year charged six Apple Daily executives, including its top editors, with foreign collusion under the national security law, and the 26-year-old publication was subsequently forced to close.

Apple Daily was well-known for its dogged coverage, so it came as no surprise that its reporters attended the first day of Tong’s trial, keenly watching the lawyers’ every back-and-forth from the press gallery. That also happened to be the eve of the paper’s shutdown. The following day, the Apple Daily reporters were gone, and the next time the publication’s ex-employees appeared in court was for a hearing of their own.