The clean look and orderly rhythm of activity in downtown Hong Kong belies the fact that just nine months ago, hundreds of thousands of protesters flooded the city’s center, demanding universal voting rights. Despite appearances, political and social tensions remain high today.
Since October, several Hong Kong-based social media activists have been arrested and accused of violating the city-state’s cyberlaws. The arrests have led local legal experts to suspect that authorities are exploiting Hong Kong’s cybercrime laws in an effort to suppress political speech online.
At least nine activists have been arrested for their online remarks, all charged with the debatable criminal code Section 161 which prohibits “access to a computer with criminal or dishonest intent.” Three have been sentenced to either community service or time in a rehabilitation center.
On 29 May, Tam Tak-chi, leader of the radical democratic coalition People Power, was arrested for posting on Facebook a comment in which he sarcastically suggested planting homemade bombs on the road of a funeral procession for Beijing loyalist Yeung Kowng.
Yeung was a leader of the Hong Kong 1967 leftist riots when the pro-Beijing protesters planted both fake and real bombs in the city and burned a radio host to death after he criticized the rioters in a broadcast. Despite his criminal record, Yeung was later given the Grand Bahunia Medal, which the government issues to a citizen who has made a “highly significant contribution to the well-being of Hong Kong.” Among speakers at Yeung’s funeral was Hong Kong Chief Executive CY Leung, who praised him for his dedication to Hong Kong society.
Responding to Chief Executive Leung’s speech, Tam wrote:
Boxes with the words “homemade pineapples [euphemism for bombs], stay away, comrades” written on them, put on the road as the hearse passes by. Will that be a good match? [referring to Yeung’s bombing tactic during the riot in 1967] When opened, boom! Confetti cannons for the party…
Tam was arrested shortly thereafter, but later released on bail. His allies believe the arrest was intended to warn him not to participate in a vigil held last week commemorating the 4 June 1989 massacre on Tiananmen Square, or any activities surrounding the Legislative Council’s upcoming vote on reforms to the controversial electoral process in Hong Kong, which sparked protests that peaked last September.
Two days prior to Tam’s arrest, Barry Ma, chairman of a local pro-independence group known as Orchid Gardening, was arrested for suggesting on Facebook that the entire family of a local news columnist “should be exterminated”. In local parlance, this can also be understood to mean “should go to hell”. The columnist had defended police authorities in a scandal that revealed that police had coerced an autistic man into confessing to manslaughter in a case in which an elderly man was found beaten to death.
Both groups implicated here are famous for their disruptive tactics and clashes with the authorities. Tam Tak-chi was a leading force protests in the Mong Kok section of Hong Kong and was arrested at the height of the demonstration. Barry Ma’s Orchid Gardening is part of a nascent localism movement which has organised street protests against mainland travelers and senior government officials. Both groups strongly oppose the official proposal on electoral reform, which would deeply undermine the intentions of the Occupy Central movement. The Legislative Council will begin deliberations on the policy on 17 June.
Data on these and other arrests is publicly accessible in a database maintained by Hong Kong Transparency Report, an independent research project launched in June 2014 at the University of Hong Kong.
The Internet is ‘not a lawless world’
The police stressed in several official statements following these arrests that the Internet environment is not a lawless world, and that the majority of laws in the real world are also applicable online. Critics argue the authorities are exploiting the ambiguity of Hong Kong Crimes Ordinance Section 161 which criminalizes “access to computer with criminal or dishonest intent” in an effort to repress political activists’ speech on the Internet. Section 161 has a lower threshold for prosecution than more substantial offenses such as ‘illegal’ assembly, criminal intimidation, and police assault.
University of Hong Kong legal scholar Eric Cheung was quoted as saying that if the police believe Barry Ma’s case constituted criminal intimidation, then Ma should be charged with criminal intimidation rather than Section 161:
Following the police’s logic, if a person expresses the same opinion as Ma’s orally rather than on the Internet, he probably won’t be arrested. That logic simply doesn’t make sense.
By Cheung’s estimation, authorities are serving harsher punishments to individuals who commit crimes of a digital nature. The case of Tam Hiu-fung, a protester arrested by the police for encouraging people to occupy Mong Kok last October on the popular local web forum HK Golden, Tam was charged both with ‘illegal gathering’ and Section 161. Prosecutors dropped the first charge under a one-strike policy in May this year and Tam was eventually sentenced to 100 hours’ community service under Section 161 only.
Section 161 doesn’t target speech but rather behaviour
Looking back at the vital role that social media activism played in last year’s Occupy Central movement, it is no surprise that police have become eager to monitor online interactions. In September and October, protesters used popular social media platforms such as Facebook, Whatsapp, Twitter and Instagram to communicate and disseminate real-time information. Joshua Wong, pro-democracy activist and founder of the student activism group Scholarism, emphasized the importance of social media at a recent event:
Without Facebook there would be no Occupy Central, without Facebook there would be no Joshua Wong.
On June 2 at a Legislative Council panel on security, legislators hotly debated whether Section 161 had been abused by the government to target political activists’ speech on social media. While pro-establishment legislators proposed to enhance law enforcement to prevent crimes, pan-democrat lawmakers argued for a thorough review of Section 161 and the protection of citizens’ rights against unreasonable arrests or prosecution.
IT Legislator Charles Mok questioned law enforcement’s evident double standard on criminal speech and Craig Choy, legal adviser to activist group Keyboard Frontline described the use of Section 161 as “unfair”:
Section 161 exposes the unfair approach taken by the police…they’ve ruined their own integrity and professionalism.
Undersecretary for Security John Lee clarified that Section 161 doesn’t target speech but rather behaviour, a curious notion in the online space where expressive actions are often indistinguishable from other forms of “behavior”. Lee said he believed the court will oversee that Section 161 will not be abused and the panel eventually passed the pro-establishment lawmaker’s motion to enhance crackdown on cybercrimes.
Eric Cheung, principal law lecturer of HKU, said on EJInsight that the Security Bureau is trying to expand the scope of Section 161 so that it could hold users liable for comments made online, but not for those made in other media.
Activists’ contentious social media remarks were often deleted immediately following their arrests. The majority of those arrested pleaded guilty at the Magistrates court, the lowest-level court in Hong Kong, according to Hong Kong Transparency Report database. In Tam’s case, the Magistrate said Tam’s online comment is “irresponsible” and “may encourage readers to take action and generate the sheep flock effect.”
Yet in another case, a defendant who in 2010 posted a message on HKGolden threatening to bomb the Liaison Office of the Central People’s Government was sentenced to 12-month probation for “committing an act outraging public decency,” appealed his case and his conviction was quashed by the Court of Final Appeal in 2014. The judge commented that “the public element of the offence was not satisfied.” Of course, this was a different time for Hong Kong politics.
It is sometimes difficult to draw a line between speech that merits the protection of the law, and speech that is truly an incitement to violence. But these and other cases documented in the database suggest a dangerous trend of criminalizing legitimate, protected speech. Hong Kong law enforcement must conduct an independent review of the ongoing arrests of activists under ambiguous charges simply for what they say on the social media.