By Henry Litton
Hong Kong faced was an insurgency, the
overthrow of the government, nothing less.
July 12, 2021 "Information
Clearing House" - -
In 1815, China
under the rule of the Emperor Jiaqing was at peace,
but Britain, in the course of acquiring a great
empire, was at war.
When, after the
battle of Waterloo in June 1815, the Duke of
Wellington, commander of British forces, was asked
how he saw the outcome, his laconic reply was: “It
was a close-run thing”.
His foot soldiers,
formed in squares, withstood the repeated onslaught
of Napoleon’s fearsome cavalry. Not a single square
broke rank. Discipline ultimately prevailed.
scene from the heights of Waterloo in June 1815 to
the streets of Hong Kong in November/December 2019,
what do we see? The Hong Kong Police in serried
ranks protecting property, safe-guarding lives,
staying calm and restrained, withstanding onslaughts
by assailants wearing protective gear, weapons-grade
gas-masks, wielding sharpened iron rods, throwing
petrol bombs. And they did this month after month.
I put myself in
the place of the ordinary policeman. He had been
doing this for more than 6 months. His name has been
posted on social media; doxxing involved not only
himself but also his children; they are bullied at
school; the quarters where he lived have been
fire-bombed; his wife is seriously frightened; and
his mother-in-law says to him repeatedly: “Why do
you protect other peoples’ property and not your own
home, your own family?”
When ordered to
make an arrest he is required to exercise
“reasonable force”, whatever that means. The thug he
is arresting knows no reason, no restraint. An
arrest risks serious injury to himself; some of his
colleagues have been injured and hospitalized. The
thug carries no ID card. He will not disclose his
name, will not cooperate in having his photo or
finger-print taken. He will not accept police bail.
He cannot be charged. So, after 48 hours he is
released unconditionally, to repeat the same outrage
the next weekend.
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How close was Hong
Kong to total collapse? This, we ordinary citizens,
will never know. This is something the government,
for obvious reasons, will never disclose. But, as an
observer looking from the outside, I would say: “It
was a close-run thing”.
All it took was
for one police unit to break ranks, to say: “We’ve
had enough”. The whole force would have collapsed.
But discipline held; and for that the community
should be forever grateful.
This, as I see it,
is the true scenario against which the National
Security Law should be viewed. The rest is creative
fiction crafted to put the Hong Kong government in
the worse possible light.
What Hong Kong
faced was an insurgency, the overthrow of the
government, nothing less.
made the classic mistake of the cowardly, of the
school-yard bully. They took the government’s
low-key response, its restraint, as signs of
weakness. So, for a few months, their leaders
strutted on the stage as if they owned the whole
show. They attracted the label of “freedom fighters”
and got themselves onto the cover of Time magazine.
They took no responsibility for the misery they
caused to millions of their fellow citizens, and the
billions of dollars of damage they inflicted, to be
paid for by Hong Kong tax-payers.
What happened on
Sunday 18 August 2019 is a good example. The police
had raised no objection to a mass gathering in
Victoria Park, provided the organizers arranged for
200 marshals to control the crowd; but the police
objected to a procession to Central and a further
mass gathering there. In open defiance of the law
the leaders raised a huge banner and led a
procession down the highways to Central, vaunting
their impunity from the law. So filled were they
with their own sense of triumph that they forgot the
inherent strength of the law; that the law has long
In retrospect, it
can be seen that the seeds of insurgency were laid
many years before. As Professor Cullen recently
explained, much of the world had been dominated by
the notion of Western ascendancy for some 200 years.
China’s decline in the late Qing Dynasty had been
accelerated by Western belligerency.
But, after WW2,
the balance began to shift. The USA, for all its
awesome fire-power, met stale-mate in Korea, defeat
in Vietnam and expulsion in Cuba.
Then came the
astonishing rise of China after the end of the
Cultural Revolution in the early 1980s. The tectonic
plates began to shift, but there was no change in
Western thinking: it clung tenaciously to the notion
of Western ascendancy. One aspect of this, as Prof.
Cullen puts it, is “turbulent pushback from an
unnerved Western media”; this “pushback” reflects
the stance of the Western powers clinging to its
With the break-up
of the Soviet Union in the early 1990s, China was
seen, more and more, as posing a threat to the
dominance of the West. How to counteract that?
Destabilize Hong Kong was one answer.
The thinking seems
to run along these lines: China stands today as a
strong homogenous nation-state; but it wasn’t that
long ago that China was splintered into separate
fiefdoms dominated by warlords. Well, maybe, its
territorial integrity could be broken up again.
If the stirrings
of industrial action in the late 1980s, in a lousy
little shipyard in Gdansk – a small port on the
Baltic Sea – could lead to the eventual breakup of
the Soviet Empire, why wouldn’t the seeds of
insurgency, sown in Hong Kong, do the same thing to
China’s territorial integrity?
The signs of such
a movement are everywhere to be seen.
We need to look no
further than at how the controversy surrounding the
National Security Law arose.
As everyone knows,
the Basic Law (Article 23) required the Hong Kong
SAR, on its own, to enact laws to prohibit treason,
secession, subversion etc. The laws in the statute
books, inherited from colonial times, scattered over
3 Ordinances, were plainly unfit for that purpose.
So, 5 years after
reunification, the government issued a consultation
paper on proposals to implement Article 23. It made
out a strong case. This is what it said:
round the world …..have express provisions on their
statute books to prevent and punish crimes which
endanger the sovereignty, territorial integrity and
security of the state. Therefore, while nationals of
a state enjoy the privilege of protection provided
by it on the one hand, the individual citizens have
a reciprocal obligation to protect the state by not
committing criminal acts which threaten the
existence of the state, and to support legislation
which prohibits such acts on the other hand.”
The proposals took
into account the whole range of constitutional
guarantees of personal freedoms: speech, expression,
the press; and freedom from arbitrary arrest,
sanctity of the home, etc.
persons would have realized that to implement
Article 23 was an absolute necessity. The Central
Government had entrusted this to the Hong Kong SAR;
it was a considerable responsibility.
What was needed
was not a regional security law; it was a national
security law, affecting not only security within the
region, but nationally. To emphasize Hong Kong’s
high degree of autonomy, this law was to be enacted
by the SAR “on its own”.
When the National
Security (Legislative Provisions) Bill was
introduced in LegCo in February 2003 one would have
thought that all community leaders would have given
it their support. If there were flaws in its details
these could be ironed out in Committee.
There was no
rational basis for a total rejection of the Bill.
There was only one possible alternative to the
enactment of the law by the local legislature: its
promulgation by the Central Government.
got to work in the social media. People’s passions
were aroused. Dark forces were at play to defeat the
Bill. It failed to pass.
early 2019, the controversy surrounding another
piece of legislation, the Return of Fugitive
Offenders (Amendment) Bill.
community was much concerned at that time about
cross-country crimes, money-laundering and terrorist
financing. To align Hong Kong with other developed
economies, it was necessary to upgrade the existing
Ordinance: hence the amending statute.
A scare campaign
was mounted through social media. The Bill was
portrayed as allowing Mainland agents to grab people
off the streets of Hong Kong and bring them for
trial across the border.
Trouble in the
streets erupted, turning into the most damaging
unrest Hong Kong has ever seen.
This is what Mr C
H Tung (former Chief Executive) said in May 2019:
“As Hong Kong had
failed to enact its own security legislation for
over 20 years, it had become an easy target for
hostile foreign opportunists to disrupt public
order, using Hong Kong in effect as a proxy for a
wider power conflict”.
On Wednesday 12
June 2019, an organized group of rioters outside the
fenced perimeter, fighting to get into the LegCo
building, forced the suspension of the second
reading of the Bill.
Three days later
the government announced the withdrawal of the Bill.
The speech made by
the Chief Executive was calculated to calm nerves
and dampen passions. It was a model of restraint and
humility. She said:
“I want to stress
that the original purposes of the exercise stem from
my and my team’s passion for Hong Kong and our
empathy for Hong Kong people. I feel deep sorrow and
regret that the deficiencies in our work and various
other factors have stirred up substantial
controversies and dispute in society following the
relatively calm periods of the past two years,
disappointing many people. We will adopt the most
sincere and humble attitude to accept criticisms and
make improvements so that we can continue to connect
with the people of Hong Kong”.
would have satisfied demands of the protesters.
Their aim had been achieved; the withdrawal of the
But not at all,
showing beyond all doubt that the movement had much
Monday 1 July was
a public holiday, to celebrate Hong Kong’s
reunification with the Mainland. On that day an
organized group broke into the LegCo building and
trashed the Legislative Council chamber. The Chinese
national emblem was defaced; the Hong Kong colonial
flag was raised. The rioters had declared war on the
government, on the existing constitutional order.
It was also a war
on democracy, just as it was in 1933 when Hitler’s
thugs burned the Reichstag. This was the moment for
the veteran leaders of the democratic movement, and
the “pro-dem” members of LegCo, to distance
themselves from the movement, to condemn the acts of
violence and desecration. No one did, thereby
allying themselves inextricably with the violent
segment of the movement.
Fast forward again
to 11-12 July 2020, soon after the enactment of the
National Security Law. Various agitators had got
together to mount what they called “primary
elections” to find the best candidates for the LegCo
elections due to take place later that year. They
have since been arrested on suspicion of subversion
under the new law.
In a report to
Parliament this month the British Foreign Secretary
Dominic Raab said that the National Security Law was
being used “to stifle political opposition”.
It seems, sadly,
that the Foreign Secretary had not been told the
full facts; or is it possible that someone of that
standing would knowingly distort the truth?
Most of the truth
of that story is on public record. The “primaries”
were simply a small part of a larger plot calculated
to bring down the government. This was described as
“10-steps to mutual destruction”, which had been
outlined in Apple Daily in late April 2020. The
label attached to this plot is “LaamChau” meaning
“We Burn, You Burn”, an expression taken from a
popular TV series. It was, on its face, a last
desperate attempt by the insurgents to bring down
The full facts
have not been revealed. Investigations are still
going on. The case has not yet come on for trial.
instance, was put to the voters to induce them to
come out and vote in the “primaries”? Probably
different things were said to different
constituents, and there may be questions as to the
truthfulness of what was said. According to the
police, the voters were paid substantial sums to
take part in the process. Arising from this, HK$1.6
million have been frozen. The significance of this
will need to be explored.
circumstances, how could it possibly be right for
the British Foreign Secretary to assert that the
National Security Law is being used “to stifle
As things stand
today, there is a Bill in the British Parliament
entitled “Police, Crime, Sentencing and Courts Bill
2021”. It is meeting with considerable opposite from
ordinary citizens, who have launched street
protests. This is what the policy paper says:
“Protests are an
important part of our vibrant and tolerant
democracy. Under human rights law, we all have the
right to gather and express our views. But these
rights are not absolute rights. That fact raises
important questions for the police and wider society
to consider about how much disruption is tolerable,
and how to deal with protesters who break the law. A
fair balance should be struck between individual
rights and the general interests of the community
Section 59 of the
Bill, for instance, abolishes the common law offence
of public nuisance and replaces it with a statutory
offence of very wide scope, attracting 10 years
imprisonment on indictment.
Would it be right
for, say, the Hong Kong Chief Secretary to comment
on this provision, or on how the “fair balance”
should be struck in the UK? Obviously not. So how is
the reciprocal position justified?
What is more, the
National Security Law deals with something more
fundamental than the so-called “fair balance”. It
arms the Hong Kong government, for the first time
since reunification, with effective legislation to
deal with an insurgency.
The law starts
with statements of general principles where the
lawful rights and interests of Hong Kong residents
are fully protected. The common law principles
governing criminal trials are safe-guarded
including, for instance, the presumption of
innocence, the exclusion of prejudicial evidence,
If one looks at,
for instance, the US Patriot Act 2001, the contrast
with Hong Kong’s national security law is stark.
It is an Act to
deter and punish terrorist acts in the USA and
around the world. It is extremely difficult to judge
from the text of the law its overall effect. It is
not only an enabling Act but also an amending Act,
amending many other enactments; unless one is
familiar with those other enactments it is not
possible to make sense of the Act.
introduction paragraph is startling. It says:
“Any provision of
this Act ……..as applied to any person or
circumstance, shall be construed so as to give it
the maximum effect permitted by law, unless such
holding shall be one of utter invalidity or
unenforceability in which event such provision shall
be deemed severable from this Act ….”.
No mention of the
presumption of innocence. No safe-guard for the
rights of the defendant.
accusations made by Western leaders and media of
Beijing’s so-called stifling of freedoms in Hong
Kong through use of the National Security Law is so
far from reality that the conclusion is inevitable:
as Mr C H Tung said, Hong Kong is being used as a
proxy for a wider power conflict.
Editor’s note: The
following are remarks of Henry Litton at the Hong
Kong National Security Law Legal Forum hosted by the
Department of Justice, on Monday, July 5, 2021.
Henry Litton CBE, GBM is a retired permanent
Judge of the Hong Kong Court of Final Appeal. Litton
founded the Hong Kong Law Journal in 1971. In 2019,
Litton published the book ‘Is the Hong Kong
Judiciary Sleepwalking to 2047’ in which he
criticised numerous aspects of Hong Kong’s legal
system, focusing particularly on the misuse of
judicial reviews in recent years.
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