ALN has released an article reflecting on Benny Tai's legacy advocating for democracy and civic action in Hong Kong following his arbitrary 10 year sentence under Hong Kong's National Security Law. You can read the article below and from this link in PDF format.
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Benny Tai
Reflections on Benny Tai’s Legacy in Hong Kong Following his Arbitrary 10 Year Sentence
27 February 2025
On 19 November 2024, 45 pro-democracy activists in Hong Kong were sentenced for prison terms between four to ten years for “conspiracy to commit subversion” for participating in an unofficial primary election in 2020 to gain support for the upcoming election at the time. The 45 were out of 47 originally arrested and long referred to as the “Hong Kong 47”, with two later being acquitted before the sentencing of the remaining 45. Consistent with this past practice and the fact that 47 persons were involved for much of its duration, this article will continue to refer to the case and the collective group as the “Hong Kong 47”.
The action was part of a larger plan to gain a majority of seats in the Legislative Council allowing the bloc to take certain disruptive but legal and non-violent legislative actions in an effort to pressure the government to enact democratic reforms including universal suffrage. The largest prison sentence was given to Benny Yiu-ting Tai, a former law professor at the University of Hong Kong with a history of organizing civil society action in Hong Kong, whom the judges in the Hong Kong 47 conspiracy case labeled as the “mastermind” of the plan. This article takes a broader look at the significance of Tai’s work, legacy, and sentencing in the context of Hong Kong’s descent into authoritarianism since 2020.
Benny Tai was a long-time law professor at the University of Hong Kong focusing on constitutional law, the role of civil society in government, and civil and political rights until his controversial dismissal in July 2020 for his political activism. He was also engaged in civic education and public service, including serving as a representative on the Basic Law Consultative Committee, the Committee on the Promotion of Civil Education, the Bilingual Laws Advisory Committee, and the Central Policy Unit. He also worked under the Hong Kong Democratic Party leader Martin Lee to give input into the drafting of the Basic Law, Hong Kong’s mini-constitution, and in 2001 he received an award for civic education on the Basic Law. This background, which from the beginning connected constitutionalism and civil society in Hong Kong, set the stage for what he was best known for: organizing a series of civil society actions aiming towards advancing democratic reforms and universal suffrage in Hong Kong. The following sections give an overview of these actions, following which the legacy of Tai’s work will be considered in sharp contrast to Hong Kong’s authoritarian turn since 2020.
Occupy Central with Love and Peace (2013-2014).
Xi Jinping’s ascension to China’s presidency in 2013 led to a shift in China’s already soured Hong Kong policy and more assertive pressure campaign towards restricting its democratic reforms. One of the first major landmarks of the shift involved a universal suffrage referendum proposal in June 2014, which Chinese authorities and their Hong Kong allies strongly advocated against. Inspired by Martin Luther King Jr.’s civil rights movement and the 2011 Occupy movement in the US, Tai proposed a civil disobedience movement to counter such official pressure in an influential article published in January 2013 "Civil Disobedience's Deadliest Weapon"[1] calling for a commitment to an occupy movement if authorities rejected the proposal. At the time, Tai stated that “Hong Kong has entered a cold winter. The wind is strong and cold. But I believe many Hong Kongers will still use their own way to move forward against the wind.”[2] Under Beijing pressure, the proposal was rejected, following which in August 2014 China’s National People’s Congress Standing Committee (NPCSC) went even further, allowing voters to only be able to choose from two or three preapproved candidates for the next Chief Executive election in 2017, gutting the very purpose of elections to reflect the people’s choice. In response and fulfilling the call of his own article, Tai announced Occupy protests in Central, the business and cultural center of Hong Kong in September 2014. As the name of his plan suggests (Occupy Central with Love and Peace) and consistent with the Christian values,[3] non-violent protest was always a central element of his program. As one commentator summed up Tai’s vision for the Occupy protests, the “idea of the non-violent civil disobedience action was meant to be another form of civil participation in pressurizing the government to realize its empty promise of giving Hong Kong people universal suffrage.”[4] The protests later grew into the Umbrella Movement of mass protests out of Tai’s control that included more direct confrontation with police. In March 2017 Tai was arbitrarily arrested with eight other Occupy leaders to six months for "conspiracy to commit public nuisance" and "inciting others to commit public nuisance" for the alleged public disruptions.
Operation ThunderGo (2016)
In 2016, Tai created a plan to coordinate the action of pro-democracy groups towards winning half of the open seats in the upcoming Legislative Council election. The effort also included a “smart voter” system of polling to indicate voters preferences to direct late voters to “weaker” candidates, which did lead to more support for lesser known (and in some cases harder-line pro-democratic) candidates. However, not all pro-democracy parties joined the effort and the opinion poll messaging may have directed support away from some candidates that may have won otherwise, blunting its impact. Nevertheless, the effort ended with the pro-democracy bloc winning 29 of the 70 targeted seats, a substantial gain. Shortly afterwards, a Hong Kong court disqualified six of the newly elected candidates for comments while taking their oaths of office and elsewhere referencing localism, self-determination, and criticism of China.
Project Storm (2017)
The Project Storm effort was a similar attempt as the above at the local level, through targeted campaign efforts and training sessions for candidates to win a majority of the 431 District Council seats in the 2019 local elections, including seats on the Election Committee electing the Chief Executive. Tai and his collaborators hoped to make it more difficult for Beijing authorities to control the election and thus apply pressure on pro-Beijing officials to return to reform discussions after the 2015 restrictions. While this project was making progress, Tai was convicted in April 2019 for the aforementioned public nuisance case, and he received a 16 month prison sentence. The judgment flagrantly ignored the rights to freedom of expression and assembly under Hong Kong’s Basic Law and ICCPR, which has been incorporated into Hong Kong law.[5] Even in prison, Tai began a series of influential prison letters, again like Martin Luther King Jr., published in Apple Daily, allowing him to continue his advocacy. In the same period, the tabling of an extradition bill that would permit accused persons to be extradited to China led to anti-extradition protests which grew from small groups in March to over a million people (some estimated up to 2 million) in the streets by June 2019. In the wake of these developments, pro-democracy candidates won 388 seats in the September district elections, holding majorities in 17 of the 18 districts in Hong Kong, marking one of the clearest signals and highest points of mass public support for democracy in Hong Kong. The election had the highest turnout in Hong Kong history (71% of registered voters), and Tai called it the election maybe “the most important in the city’s history.”[6]
Democratic Primaries and Project Lazarus (2020).
Following this victory, Tai was the main organizer of a “35-plus” plan to hold an unofficial primary election for pro-democracy candidates in the July 2020 LegCo elections, aiming to maximize their winning chances and achieve at least 35 of the LegCo’s 70 seats. This would allow the bloc to start a planned chain of events starting with blocking passage of the budget to pressure the government for pro-democracy reforms, with a series of escalations if it faced resistance to generate public resistance. Ultimately the goal was to build pressure on the Beijing regime to consider a hands-off policy towards Hong Kong as the less troublesome alternative. As Tai stated at the time, “A Legislative Council majority is the most lethal constitutional weapon.”[7] The effort, as well as all pro-democracy and civil society action generally at the time, faced a significant setback by the passage of the NSL in June 2020, with authorities warning participants that the primary could violate the new law. More than 600,000 Hong Kongers voted in the primary. However the authorities barred 12 primary winners from running for office, and they delayed the September elections due to Covid restrictions. The government later removed four pro-democracy lawmakers from office for “threatening national security”, and 15 remaining pro-democracy lawmakers resigned in solidarity. Today only pro-Beijing or non-resisting lawmakers fill the LegCo. Following the NSL’s promulgation, the University of Hong Kong’s governing council cited Tai’s April 2019 conviction in dismissing Tai in July 2020, which has been criticized as a flagrant violation of academic freedom protected under the Basic Law.[8] Virtually all civil society action and independent journalism also ceased under the threat of prosecution under the NSL.[9]
Following these setbacks, Tai began a new “Project Lazarus” to teach classes on democracy to citizens, as well as write an associated book, to prepare them for a rebirth of rule of law and democracy in the future. On 6 January 2021, 55 participants in the primary, including Tai as an organizer, were arrested for subversion for the actions, citing the participants’ commitment to disruptive actions, such as the commitment to veto the budget. As mentioned above, Tai was convicted and received the most severe prison sentence of 10 years.
Tai’s Values and Vision
Tai’s major writings and public organizing bring together all his major personal and professional commitments: his legal academic work connecting democracy, governance, and civil and political rights; his political leadership in advocating for reforms in practice; and his personal, religious, and civic commitments to justice. As others have noted, his work revolved around his commitments as an academic,[10] political organizer,[11] Christian,[12] and civic-minded Hong Konger,[13] making academic freedom, civil and political rights, religious freedom, and civic spirit the major focuses of his pursuit of justice.
In practice, this multifaceted view may be even more summarily captured in Tai’s repeated invocation of the power of two “lethal weapons” for change: civic action (e.g., protests) and elections, the two principal means that Hong Kong’s constitutional system affords people to effectively raise their voices for change. (It is important to note that Tai always insisted on peaceful resistance, so the term “lethal” was always metaphorical.) The first is civil society action based on direct appeals to public action, mass protests, political speeches, and other forms of public resistance and engagement, including civil disobedience when necessary (when the law and state institutions were themselves unjust), all under the protection of the Basic Law’s guarantee of civil and political rights to speech, assembly, and association. The second “weapon” is democracy itself through electoral efforts, permitting the voting of a majority of representatives and the use of parliamentary mechanics for representatives to realize the people’s needs and values.
Tai often explicitly highlighted the connection between his work and these two instruments of civic action and voting. In reflecting on the most important legacies of the Occupy and Umbrella movements that he led and inspired, he stated that “the Occupy Central movement highlighted the meaning and importance of universal suffrage”[14] and “People are now much more receptive to civil disobedience as a tool of democratization, and seeds of democracy have been planted in Hong Kong’s soil.”[15] Other commentators have pointed out that Tai achieved other purposes and values through the Occupy movement including having “engaged large swaths of the public in civic affairs and attracted the attention of the international community as images of young protesters using umbrellas to fend off riot police appeared on TVs around the world.”[16]
In Tai’s depiction of Hong Kong’s legal order, enshrined in its Basic Law and foundational agreements, laws, and established jurisprudence, laws are not blind instruments of control with no deeper purpose than controlling a population, but the law has a purpose and even a spirit: ensuring that the government is responsive to the people’s needs, values, and demands for justice as the foundation of its legitimacy.
Law and state institutions must be at the service of the people and guarantee justice for them, and not the other way around, and civil society action and democracy are the two central instruments that connect government action to public values and justice. Thus the law is not only consistent with civil society action and democracy, but depends on them to achieve this purpose. Similarly civil society action depends on law to protect it through the guarantee of civil and political rights. Moreover, given the long history of Hong Kong institutions before 2020 respecting liberal democratic values, this democratic purpose or spirit of the law has become central to the character and identity of Hong Kong the city and Hong Kongers the people themselves.
Tai’s move to connect academics and activism
Because of Tai’s conviction in this vision, it was unsurprising that he was not content with simply teaching law as a professor, but that he felt compelled to put his values into practice by becoming engaged and a leader in exactly the civil society action and democratic mechanisms he had long argued are central to Hong Kong’s constitutional order. As one commentator described this transition during his formulation of the Occupy Central agenda, “Benny Tai’s intention was to turn the academic discussion into street actions.”[17] Part of this connection also was civic education, ensuring that the public understood the letter and spirit of the Basic Law. Such an education, part of the academic’s role as a public intellectual could ensure that (academic) participants in the Occupy Movement “could legitimately believe what they were doing was merely exercising rights enshrined in the Hong Kong Basic Law, combining their roles both as academics and citizens.”[18]
Similarly, almost all of Benny Tai’s civil society organizing centered on the civil and political rights afforded under the Basic Law and Hong Kong’s Common Law jurisprudence—freedom of expression and academic freedom through his articles and speeches, freedom of assembly through his appeals for mass demonstrations, freedom of association through his appeals for political organizing and unity among the pro-democracy factions—as well as a particular focus on the instrument of legislative elections, to push and pull Hong Kong towards a strong and vibrant liberal democracy, consistent with the overwhelming majority preference of the public. In these ways, there is a tight interrelationship between Tai’s academic work on the foundations of a legitimate constitutional order in Hong Kong and his activist work giving life to the ideas in practice to protect and strengthen those foundations. In his vision, the law is grounded in a living spirit that must be protected, strengthened, and activated in practice.
Contrast between Tai and Xi’s vision for Hong Kong
The contrast could not be starker between Tai’s vision of legitimate “rule of law”, a deep constitutional tradition in Hong Kong connecting government and law to the active civic engagement of the people, and Xi Jinping’s alternative vision of “rule by law”, which has the purpose to not only suffocate exactly this vision and shield power from popular criticism, but to actually criminalize public engagement. There is a mirrored irony in this contrast. Whereas Tai uses the terms “lethal methods” and “civil-disobedience” to refer to “effective” civic action that actually at its core was non-violent, ultimately respecting rule of law, and in a spirit of love, pro-Beijing advocates of the “rule by law” approach use terms like “security”, “peace”, and “respecting the law” to refer to “silencing” police actions that at their core are violent, oppressive, illegal, and in a spirit of resentment.
Looking at the recent authoritarian turn in Hong Kong, there are already numerous review articles on recent legal changes in Hong Kong, which have included coerced promulgation of the NSL in 2020 and the SNSO in 2024, about which ALN published an analytical summary of in April 2024.[19] These and related laws, as well as the authoritarian transformation of criminal courts under hand-picked NSL judges and police administration under new management rules that control the adjudication and enforcement of these laws, have effectively cemented the authoritarian “rule by law” approach in Hong Kong of criminalizing civil and political action, antithetical to Tai’s vision. Over 150 people have been charged under the NSL since 2020, and within a few months hundreds of civil society organizations went overseas or disbanded, leading to the almost complete silencing of public criticism and the virtual total collapse of independent civil society in Hong Kong.
The meaning of Tai’s long sentence and the other Hong Kong 47 sentencings
Now more than four years after the NSL’s promulgation, it is perversely fitting that the convictions of Tai and 45 of the Hong Kong 47, including Tai’s long sentence for his leadership, are one of the most direct rebukes yet by Hong Kong's pro-Beijing authorities and judges against Tai’s civil-society-centered vision rooted in the Basic Law and Hong Kong’s liberal democratic foundations. On almost every point the court’s justifications flip Hong Kong’s liberal and constitutional foundations upside down, as the following sections summarize.
1. Turning Civil Society Action Itself into a “Danger”
Regarding the court’s view of civil society action, the judges made it a centerpiece for their determination of Tai’s long sentence. In justifying Tai receiving the longest sentence of the Hong Kong 47, the ruling explained:
In short, [Tai] was not only the initiator of the scheme, but also an organiser of the primary election. He was the mastermind behind, hence could well be placed in the ‘[principal] offender’ category. [Tai] might not be the one standing in the primary election or the actual [Legislative Council] election, he however provided the necessary platform for those who intended to exercise the vetoing power under the scheme.[20]
In other words, it was the organizing of civil society and political action itself that was most culpable in the NSL judges’ view. The court further distinguished between offenders that might have “mistakenly” participated in actions protected under the Basic Law, versus the “intentional” organization and participation of such action by more culpable offenders. As the court stated in justifying a long sentence against Gordon Ng Ching-hang, who was one of the more active and vocal participants in the primary plan:
He willingly and intentionally continued to facilitate the scheme by putting pressure on others so as to see that only those who joined and won in the primary election would take part in the coming Legco election.
It was this “intentional” aspect that was also an important consideration to the severity of Ng’s and Tai’s culpability. More will be said about this point below in the context of the particular culpability of lawyers and legal scholars, another central pillar to Tai’s vision.
Many commentators from liberal democracies summed up the significance of Tai’s long sentence explicitly in terms of the message it sent that (critical) expression and civil society action were themselves the major threats to the regime. As the UK government stated following the sentencing, "Today’s sentencing is a clear demonstration of the Hong Kong authorities’ use of the NSL to criminalise political dissent."[21]
Consistent with this narrative, pro-Beijing commentators to the decision also emphasized the severity (seriousness, criminality, etc.) of Tai and the Hong Kong 47’s threat. To give two examples, Hong Kong leader John Lee Ka-chiu stated that the judgment showed the criminal behaviour of the defendants was “very serious” and must be severely punished; and Hong Kong Secretary for Security Chris Tang stated that “the sentences showed those committing national security crimes must be severely punished.”[22]
Two further examples involving Tai’s situation are particularly telling about how pro-Beijing judges and officials frame civil society speech and action itself as a “danger”.
a) The Application of Early Release Rules to Tai’s case
Under the new SNSO law, a defendant convicted of a national security crime can only be granted early release if the correctional service commissioner is satisfied that the decision will not jeopardise the country’s interest. As the above discussion emphasizes, critical and pro-democracy civil society actions are routinely described by NSL judges as among the most threatening crimes the region faces, making it probable that Tai will spend even longer in prison than similarly situated crimes simply because his relevant conduct involved a dissenting political (but still non-violent) stance.[23]
b) Tai’s conviction for his March 2018 comments containing the word “independence”.
In a public speech in March 2018, Tai stated that in the future, if “dictatorship” in China ended, Hong Kong "could consider going independent, being part of a federal system or a confederation system similar to that of the European Union." Tai was later heavily criticized and threatened by a number of government agencies and officials, including Hong Kong’s representative at the National People's Congress Standing Committee (NPCSC), Tam Yiu-chung, who questioned Tai’s continued position at Hong Kong University. In reaction, Tai clarified that the comment was only "imaginations of the future", that his opinion did not violate any criminal laws, and that he does not support independence.[24] Tai also prophetically stated that the attacks might have been intended to “to pave the way for a tougher national security law to ban discussion of Hong Kong independence,”[25] which became true with the passage of the NSL two years later. For our purposes here, in any case, the important point is that these attacks by pro-Beijing officials emphasize the extent to which mere speech itself is considered an existential threat of the greatest threat, despite political speech being one of the most important pillars to a government’s democratic legitimacy.
2. Turning the Instruments of and Participation in Democracy into a “Danger”
The NSL judges in the Hong Kong 47 case also made clear that participation in democracy and public office were also public “dangers” in their perverse view. A statement from the US consulate in Hong Kong noted that “The defendants were aggressively prosecuted and jailed for peacefully participating in normal political activity protected under Hong Kong’s Basic Law.”[26] Maya Wang, associate China director of Human Rights Watch further stated that “Running in an election and trying to win it is now a crime that can lead to a decade in prison in Hong Kong.”[27]
Tai himself had already pressed this point in his work numerous times in the past, perhaps most pointedly in an article “30 years after Tiananmen” that was part of a series in the Journal of Democracy titled simply “Is Democracy a Crime in Hong Kong?”[28]
On the other side of the coin, in their judgment and sentencings, the judges in the Hong Kong 47 cases offered many instances in their justifications and explanations that supported this reading that the court was criminalizing the normal mechanics of democracy and political action.
Regarding the court’s view of democratic legitimacy, in its judgment convicting those of the Hong Kong 47 that did not plead guilty, the judges stated that the informal primary organized by Tai was part of a plot to “undermine, destroy or overthrow” the region’s government. That is, the instruments of democracy itself, electing officials and officials acting legally under parliamentary rules, far from serving as a check to ensure the health and competence of government, is actually destructive to the government in the court’s view. In another telling phrase, the court clarified that by “substantial harm”, they mean harm to the “power and authority of the government and the chief executive”, not harm to the actual people or national security of Hong Kong. Beijing’s Chinese Foreign Minister spokesperson Lin Jian also stated that “no one should be allowed to use democracy as a pretext to engage in unlawful activities and escape justice,”[29] failing to mention that the “unlawful activities” in question were participation in the normal processes of democracy.
3. The Real Danger of Civil Society Action and Democracy to Pro-Beijing Forces
Before moving to the next point, it is worthwhile to dig through the euphemisms and pretexts to briefly consider what the pro-Beijing authorities consider to be the real threat of free civil society action in Hong Kong, if it is no threat (and in fact a protective force) to the population and national security themselves. Tai himself answered this question in his aforementioned 2019 article “30 Years After Tiananmen: Hong Kong Remembers” as follows:
The CCP seems powerful at the moment, but China is at a crossroads. The kinds of cultural changes seen in Hong Kong may be coming to China before long. When the generation that grew up amid unprecedented economic and physical security becomes the pillar of society, the demand for greater political freedom and more self-rule may become unstoppable.[30]
In short, the greatest threat to the security of the CCP (not China or the Chinese people) has been Hong Kong’s success in the face of China’s dysfunction and recurring demands for reform, even as the Central authorities continually work to bury criticism, evidenced by the recent White Paper movement in China, which saw public protests against China’s mishandling of Covid restrictions in 2023.[31] As part of that movement, protestors carried blank sheets of paper, highlighting their opposition not only to the mishandled restrictions, but also to the lack of civil society to have any public voice itself. It is no surprise that the evident solution that the Central authorities found to this type of “threat” from Hong Kong was to plunge Hong Kong’s government into the same dysfunction by criminalizing all civil society participation and constructive input.
4. Turning the Structure of Government against civil society input
Another pillar of Tai’s vision was that the public’s and Basic Law’s inherent liberal democratic values could not be realized unless put into practice in government law, policy, and enforcement. These values have been flipped in the present case. Both pro- and anti-Beijing commentators have emphasized the significance of the Hong Kong 47 convictions and Tai’s long sentence in terms of the operational effects it would have on Hong Kong jurisprudence for future cases. In short, the Hong Kong 47 rulings will facilitate crackdowns on civil society speech and action in the future.
Stephan Ortmann, an assistant professor of politics at Hong Kong Metropolitan University, noted that Tai’s long sentence "set a precedent for the severity of punishments for political dissent under the NSL", and that "self-censorship has become the norm."[32]
On the pro-Beijing side of the coin, Beijing’s Chinese Foreign Minister spokesperson Lin Jian stated that, in criticizing the Hong Kong 47 judgments, Western countries “had ignored” that their (China’s) national security was also safeguarded by judicial procedures, adding that their (Western government’s) responses were “a trampling” of the rule of law.[33] (Part 7 below will go into more detail on the bizarre inversion of “rule of law” as a pretext to ignore the law in NSL cases.) However, in practical terms the meaning of Jian’s statement is that authoritarianism is now built into Hong Kong’s judiciary, emphasizing its institutional foundations in deep contrast to Tai’s vision for building liberal democratic values into Hong Kong’s institutions.
5. Civic Education Against Liberal Democratic Values
Beyond informing future judicial actions, the Hong Kong 47 convictions and Tai’s long sentence also served as an instrument of authoritarian anti-civic education, instructing the public to turn against liberal democratic values and to respect authoritarian power. This is another exact flip of Tai’s vision of the central role that civic education must play in empowering the public to push for liberal democratic reforms. The function of pro-Beijing anti-civic education is to disempower the public and cow it into silence.
This is evident in some of the quotations already mentioned above, such as the UK government’s comment that Tai’s sentence is a “clear demonstration” of the criminalization of dissenting speech, implying a demonstration to the public to chill its speech and action. The point has also been made more explicitly by some commentators, including an emeritus professor at the University of Hong Kong, John Burns, which noted that the "Central authorities are using the trial to re-educate the Hong Kong people," the lesson being that "national security is the country’s top priority; don’t challenge us on national security.”[34]
6. Turning the courts and government against the public’s interest, confidence, lived experience, and identity
Another flip of the Hong Kong 47 rulings involves Tai’s vision for Hong Kong that privileges civil society action because it aligns the government with the population’s interests, values, and even identity as Hong Kongers. Civic action and democracy ensure that the population can claim some ownership over the government, but deeper than this was Tai’s belief that civil society action played a leading role in defining the identity or character of Hong Kong and its people itself. At the time of the trial for his Occupy Central activism, Tai stated that Hong Kong was an unfinished project, “neither genuinely democratic nor entirely authoritarian” at the time, calling for work to grow it into “what it’s supposed to be”, part of the title of a New York Times opinion piece he wrote.[35] By this phrase, Tai referred to the underlying spirit of Hong Kong’s Basic Law, liberal democratic traditions, and overwhelming public opinion all pointing Hong Kong towards being a vibrant liberal democracy with free speech and universal suffrage that elevates and respects the power of the people.[36]
In contrast, the vision represented by the Hong Kong 47 convictions, Tai’s long sentence, and similar authoritarian actions in Hong Kong’s post-NSL era, have deeply alienated the population and lost the public’s trust and confidence in the government. As a statement by European Union authorities following the convictions stated, the prolonged pre-trial detention, the denial of bail and concerns over adherence to fair trial standards in the case “further undermine confidence” in the city’s rule of law.[37] The Hong Kong activist Sunny Cheung, who ran in the 2020 primary and later fled to the US, made the point even more markedly, stating following the convictions that "They [pro-Beijing authorities] might be happy in a way because the entire opposition is being wiped out... but they don’t have the trust of the people.”[38]
The former journalist Gwyneth Ho Kwai-lam, the person who received the second-longest sentence among the primary election participants of seven years after refusing leniency, framed this concern at the even deeper level of the government’s authoritarianism disconnecting it from public’s very identity as Hong Kongers, a theme also familiar in Tai’s work as mentioned before.
Ho stated through a friend’s social media following her verdict that the prosecution’s narrative in the Hong Kong 47 case was “not just a distortion of facts or a threat to the larger public”, but it also forced the accused into a “self-denial of their lived experiences”.[39] She continued by emphasizing the collective nature of civil society action, stating that while she stood alone in “confronting these accusations”, it was not as an individual but as a person that had “stood in the streets and raised their voices to demand autonomy for the city… What really defines our identity is not the suffering itself, but the way in which we face it.”[40] All of this recalls the civic-minded spirit that Tai mentions of what Hong Kong is “supposed to be.”
The reverse side of this dynamic is the transformation of Hong Kong’s character away from its public base in the wake of its authoritarian turn. As Emily Lau, former chair of the Democratic Party of Hong Kong, summed up the situation following the Hong Kong 47 verdict, even before the verdict the city had already lost more than a generation of pro-democracy campaigners, and there has been "no permission for marches and demonstrations in the past few years - it's very, very quiet, very peaceful. But that's not Hong Kong. If you have been to Hong Kong, you know it is a city of protest. Very colourful, very vibrant, but not any more."[41]
7. Undermining Rule of Law
Throughout all of the NSL jurisprudence criminalizing activists’ non-violent speeches and protests, judges routinely dismiss or grossly mischaracterize Hong Kong’s legal traditions and history. They do it to such an extent that rule of law itself crumbles in every ruling they issue, often with perverse rhetoric of “respecting rule of law” characteristic of the aforementioned “rule by law” approach. Over time, as NSL judgments progressed, judges became ever more egregious in framing respect of the law as the height of illegality itself. The Hong Kong 47 verdict can be viewed as one high point in this “rule by law” flipping. In its verdict, the court characterized Tai’s plan of following both the spirit and the letter of constitutional and parliamentary procedures, including assertive civil society action which the Basic Law protects, as itself risking plunging the city into a “constitutional crisis”.[42]
The aforementioned University of Hong Kong emeritus professor John Burns stated that "The [Hong Kong 47] case is significant because it provides clues to the health of Hong Kong’s legal system. How can it be illegal to follow processes laid down in the Basic Law?"[43]
The activist Kevin Yam, in commenting on Tai’s 10 year sentence, similarly stated “I’ve known [Tai] for over 20 years, and the thought of him going in for 10 years is heavy. One day is too heavy. I mean, what has he done? He’s organised an informal vote on something. Basically, all 45 of the people convicted are being punished for seeking to work within the constitutional process.”[44]
These comments highlight one of the central paradoxes of the court’s decision and NSL jurisprudence generally: to respect the Basic Law is, in the authorities and NSL judges’ perverse view, to destroy, overthrow, or plunge it into crisis; thus, the only way the court allows it to be “respected” in its perverse view is to in fact destroy, overthrow and plunge the law into crisis through rulings that flagrantly dismiss and attack the spirit and letter of the Basic Law and other foundational laws, such as ignoring civil and political rights and public voices.
8. Undermining the Central Role of Lawyers and Legal Scholarship
A final core value in Tai’s work flipped by the Hong Kong 47 case that this article will discuss is the central role for lawyers and legal academics, not only in educating the public about liberal democratic values as discussed above, but also in articulating the legal traditions and history embodied in Hong Kong’s Basic Law and legal culture through their academic work.
In this context, it is notable that Tai’s status as a legal expert was actually a central consideration for the court in justifying the severity of his punishment, which by itself demonstrates the serious devaluing the court places on particularly legal experts and academics. In justifying Tai’s severe sentence, the court noted that while some defendants were unaware of the “unlawfulness” of the primary election scheme, this was not the case for legal scholar Tai, as well as another defendant playing a leading role in the plan, Alvin Yeung Ngok-kiu, a lawyer.[45]
There are layers of irony to this justification. Tai has a significant body of legal academic work stretching back decades to the drafting of the Basic Law itself, a process with which he participated, that go into deep detail over the legal, constitutional, and jurisprudential history and theory of every element of the Basic Law and its judicial development over the decades. Moreover, Tai’s legal expertise focused particularly on civil and political rights and Basic law’s protection of exactly the kind of civil society action for which he was on trial. In stark contrast, the short history of NSL jurisprudence is striking in the constant logical mistakes, mischaracterizations, bad faith interpretations, and displays of basic ignorance of decades of Hong Kong jurisprudence on the issues the NSL judges were confronting, including mistakes on common law protections, Basic Law jurisprudence, and Hong Kong’s human rights obligations.[46] Some examples include the following.
In Tong Ying Kit, Ruling on Bail, paras. 13-14,[47] the court went to lengths to explain away its effective reversal of the common law presumption of bail (with a standard all but assuring bail denials in practice for NSL cases) by ultimately appealing to the priority of the court’s “common law duty in protecting and preserving national security” over defendants’ rights, exactly flipping the traditional common law duty to resolve ambiguities and conflicting principles with the interpretation most protective of defendants.
In Tong Ying Kit, Ruling on a Jury Trial, para. 4,[48] the court exactly flipped the common law jurisprudence on jury trials. Since the purpose of a jury trial is to protect a defendant, the common law justification to deny it, according to the court’s own supporting jurisprudence, is if the jury itself is a threat to the defendant due to anti-defendant bias. However, the court denied Tong Ying Kit a jury trial because a jury would be too biased in favor of the defendant by the risk of it behaving like a historically normal jury.
In Tong Ying Kit, Verdict, paras. 141-142,[49] the court held that because the slogan on Tong’s flag is capable of meaning a "criminally risky" idea (the separation of Hong Kong from China), it can only have that meaning and no other meaning is possible beyond a reasonable doubt, a failure of logic on its face. The court also unjustifiably rejected the long line of jurisprudence rejecting punishment of speech based solely on its content when not linked to a risk of imminent violence.[50]
In Tong Ying Kit, Verdict, paras. 157-160,[51] the court found that a speeding motorcycle accidentally running into a police officer threatens national security because it renders “law-abiding citizens to fear for their own safety and to worry about the public security of Hong Kong,” conflating a traffic violation with a threat at the level of threatening the existence or integrity of the nation.
In Tam Tak Chi, Verdict, para. 58,[52] the court transparently confuses “necessity” with “sufficiency”, interpreting necessity analysis exactly backwards and flipping the core common law and human rights requirement on its head that rights-restricting laws must use narrowly tailored language to restrict rights as minimally as possible and only to the extent necessary. The court did so by reasoning that the definition of sedition (which the UN Human Rights Committee found overbroad[53]) cannot be overbroad because it is “necessary” that the criminalization of speech have “sufficient flexibility” to address Hong Kong’s current situation.
One can easily find dozens of further examples. It is in this context that we can understand the court’s resistance to Tai’s defense that he had a “genuine, honest” belief that the “primary election” scheme was allowed under the Basic Law, consistent with his decades of legal academic work and expertise, and his understanding of the straightforward flaws in the NSL jurisprudence's handling of freedom of expression cases that any law student must learn in law school to pass his or her exams.[54] In its ruling on Tai’s sentence, the court flipped Tai’s deep legal expertise as a perverse justification for a more severe sentence than persons ignorant of Hong Kong’s long legal history. In flipping Tai’s defense, the court opined that Tai in fact did not have the excuse of ignorance of the law, so his “genuine, honest” belief could not be genuine, but something he must have known was “mistaken”.[55] True to form, the court offered no credible explanation why Tai’s “genuine, honest” beliefs about the Basic Law were “mistaken”, hardly a sentence, much less to the depth of the dozens of Tai’s legal articles published in peer reviewed law journals since the 1990s.
Finally, as discussed above, a core value of Tai’s work was his marrying of academic research and civil society action, where academic research and civil society action were mutually supportive and extensions of one another. As the activist Patrick Poon stated, the Occupy movement was “an exploration of how academics, as citizens, can get involved in civil action, rather than merely restricting themselves to publishing articles and books and teaching university students”, but still building off of their academic work.[56] The foundation of this alliance between academics and civic action was the Basic Law’s protection of academic freedom and freedom of expression of academics under articles 137 and 22 of the Basic Law respectively, which were among the civil and political rights decimated by NSL jurisprudence. Part of the government’s attacks against Tai’s civic leadership was its attack on him as a legal academic, including in punishing his legal expertise (as described above), in criminalizing his statements as an academic (such as his aforementioned 2018 comments, which Poon described as Benny Tai “test[ing] the bottom-line of free speech as an academic in the city by commenting on independence as one of the options for Hong Kong one day”),[57] and in pressuring the University of Hong Kong’s governing council to dismiss Tai in April 2019 based on his previous conviction.
Conclusion
Like any important historical figure, Tai’s legacy is complex, and he had as many setbacks and failures as victories and successes. However, both his academic work and public activism emphasized exactly the elements that made Hong Kong and its people one of the most vibrant, wealthy, and influential societies in the region after the end of its colonial period, which is the unleashing of the people’s power through their active engagement in public affairs. Historians will remember that Benny Tai helped organize much of the greatest blossoming of democracy and civic action in Hong Kong history. While pro-Beijing authorities may want to claim that Hong Kong is no longer an unfinished project, that is has decidedly fallen on to the “entirely authoritarian” side of the coin, the true legacy of Tai’s vision is that the “genuinely democratic” side of the coin continues to live in the hearts of the great majority of Hong Kong’s people, which no silencing can erase. It is the unfinished project of public-minded people like Tai, through his continued ambitions for public civic education, to ensure that the public does not forget its liberal democratic roots, waiting for the day when Hong Kong’s law allows for the return of genuine democracy.
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[1] Benny Tai, “Civil Disobedience's Deadliest Weapon”, Hong Kong Economic Journal, 2 Jan. 2013.
[2] June Cheng, Erica Kwong, "Hong Kong’s freedom fighter", World, 28 Feb. 2021, https://wng.org/articles/hong-kongs-freedom-fighter-1617296810.
[3] See id (“ ‘As long as there’s injustice in society, as long as authoritarian rule still bars civil liberties, protest is putting faith into practice,’ Tai wrote in his 2020 memoir Love and Peace—The Unfinished Journey of Protest.”).
[4] Patrick Kar-wai Poon, "Benny Tai – Testing the Bottom-Line of Academic Freedom and Freedom of Expression in Hong Kong Benny Tai" Journal of Global Cultural Studies, Vol. 16, 2021, https://journals.openedition.org/transtexts/1558?lang=en
[5] Geping Rao, "The Application of the International Covenant on Civil and PoliticalRights to Hong KongRights to Hong Kong", Washington International Law Journal, Vol. 2:1, 6 Jan. 1993, https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1028&context=wilj; James Hing Pui Yen, "The Diminishing Status of the ICCPR in Hong Kong Following the Promulgation of the National Security Law", Michigan Journal of International Law, Oct. 2024, https://www.mjilonline.org/the-diminishing-status-of-the-iccpr-in-hong-kong-following-the-promulgation-of-the-national-security-law/
[6] Benny Tai Yiu-ting, "This Was Hong Kong’s Most Important Election Ever", NYTimes, 25 Nov. 2019, https://www.nytimes.com/2019/11/25/opinion/hong-kong-election-results.html; Suzanne Pepper, "Prof. Benny Tai’s next masterplan? A pro-democrat majority in Hong Kong’s legislature", Hong Kong Free Press, 25 Apr. 2020, https://hongkongfp.com/2020/04/25/prof-benny-tais-next-masterplan-a-pro-democrat-majority-in-hong-kongs-legislature/.
[7] Pepper, id.
[8] Poon, supra, note 4.
[9] Human Rights Now, "HRN releases a statement on the collapse of Civil Society Organizations in Hong Kong for the 48th Session of the Human Rights Council", 23 Aug. 2021, https://hrn.or.jp/eng/news/2021/08/23/hrc48-statement-hong-kong/.
[10] Poon, supra, note 4.
[11] Tai, supra, note 1.
[12] Cheng & Kwong, supra, note 2.
[13] Tai, supra, note 1; Benny Tai, "Hong Kong Reflections", https://bennytai.github.io/HongKongReflections/%E6%80%9D%E8%80%83%E9%A6%99%E6%B8%AF6/2--The%20Most%20Lethal%20Weapon%20of%20Civil%20Disobedience.html.
[14] Benny Tai, "30 Years After Tiananmen: Hong Kong Remembers", The Diplomat, 1 May 2019, https://thediplomat.com/2019/05/30-years-after-tiananmen-hong-kong-remembers/; Benny Tai, "30 Years After Tiananmen: Hong Kong Remembers", Journal of Democracy, Vol. 30:2, April 2019, https://muse.jhu.edu/article/721646.
[15] Id.
[16] Cheng & Kwong, supra, note 2.
[17] Poon, supra, note 4.
[18] Id.
[19] C. Cade Mosley, "A Legal Analysis of Hong Kong’s New Safeguarding National Security Ordinance and What it Means for Lawyers", ALN, 26 Apr. 2024, https://www.asianlawyers.net/statements/2024-04-26-report-on-the-hong-kong-snso-impact-on-lawyers.
[20] Brian Wong, Jeffie Lam, Jess Ma, Sammy Heung, Fiona Chow, “Hong Kong 47: Benny Tai jailed for 10 years over plot to overthrow government”, South China Morning Post, 19 Nov. 2024, https://www.scmp.com/news/hong-kong/law-and-crime/article/3287109/hong-kong-47-family-friends-arrive-court-sentencing-45-activists.
[21] Catherine West, "Press release: Sentencing of the NSL45 in Hong Kong: UK statement", UK Government, 19 Nov. 2024, https://www.gov.uk/government/news/sentencing-of-the-nsl45-in-hong-kong-uk-statement.
[22] Kanis Leung, Zen Soo, “45 pro-democracy activists get jail time in Hong Kong’s biggest national security case”, AP, 19 Nov. 2024, https://apnews.com/article/hong-kong-activists-sentencing-unofficial-primary-1ed13be76fa4918d83f7d3e498f2f543; Wong, et al, supra, note 29.
[23] Wong, et al, id.
[24] Kris Cheng, "Attacks against me may be intended to pave way for a tougher nat. security law, says embattled law prof. Benny Tai", Hong Kong Free Press, 3 Apr. 2018, https://hongkongfp.com/2018/04/03/attacks-may-intended-pave-way-tougher-national-security-law-says-embattled-law-professor-benny-tai/.
[25] Id.
[26] James Pomfret, Jessie Pang, "Jailing of 45 Hong Kong democrats in national security trial draws criticism", Reuters, 19 Nov. 2024, https://www.reuters.com/world/asia-pacific/hundreds-queue-sentencing-47-hong-kong-democrats-2024-11-19/;Matthew Miller, "Press Statement: Unjust Sentencing under Hong Kong’s National Security Law", US Mission China, 19 Nov. 2024, https://china.usembassy-china.org.cn/unjust-sentencing-under-hong-kongs-national-security-law/.
[27] Erin Hale, "Hong Kong jails 45 pro-democracy activists in city’s largest security case", Al Jazeera, 19 Nov. 2024, https://www.aljazeera.com/news/2024/11/19/hong-kong-jails-all-45-pro-democracy-activists-in-largest-security-case; Emily Feng, "Dozens sentenced for up to 10 years in prison in Hong Kong national security case", NPR, 19 Nov. 2024, https://www.npr.org/2024/11/19/nx-s1-5196040/hong-kong-democracy-activists-sentenced.
[28] "Is Democracy a Crime in Hong Kong?", Journal of Democracy, https://www.journalofdemocracy.org/news-and-updates/is-democracy-a-crime-in-hong-kong/; Tai, supra, note 14.
[29] Leung, Soo, supra, note 22.
[30] Tai, supra, note 14 (internal citations removed).
[31] Amnesty International, "China’s White Paper Movement: One year on, six protesters share their stories", 27 Nov. 2023, https://www.amnesty.org/en/latest/campaigns/2023/11/chinas-white-paper-movement-one-year-on-six-protesters-share-their-stories/.
[32] Koh Ewe, Phoebe Kong, "Hong Kong jails 45 pro-democracy campaigners for subversion", BBC, 2024, https://www.bbc.com/news/articles/cx2l4eynl4zo.
[33] Wong, et al, supra, note 20.
[34] Ewe, Kong, supra, note 32.
[35] Benny Tai Yiu-ting, "Hong Kong Isn’t What It Was, Nor What It’s Supposed to Be", NYTimes, 18 Nov. 2018, https://www.nytimes.com/2018/11/18/opinion/china-hong-kong-benny-tai-umbrella-movement-trial.html
[36] Id.
[37] Wong, et al, supra, note 20.
[38] Ewe, Kong, supra, note 32.
[39] Wong, et al, supra, note 20.
[40] Id.
[41] Ewe, Kong, supra, note 32.
[42] Id.
[43] Id.
[44] Hale, supra, note 27.
[45] Wong, et al, supra, note 20.
[46] Thomas Kellog, Eric Yan-ho Lai, "The Tong Ying-kit NSL Verdict: An International and Comparative Law Analysis: A GCAL Briefing Paper", Georgetown Law Center for Asian Law, 20 Oct. 2021, https://www.law.georgetown.edu/law-asia/wp-content/uploads/sites/31/2021/10/TongYingKitVerdictGCAL.pdf.
[47] HKSAR v. Tong Ying Kit, [2020] HKCFI 2196. As the first case in NSL jurisprudence, Tong Ying Kit has been influential in setting the standard for all subsequent NSL cases. See also, Thomas Kellogg, Eric Yan-ho Lai, "The Tong Ying-kit NSL Verdict: An International and Comparative Law Analysis A GCAL Briefing Paper", Georgetown Law Center for Asian Law, 20 Oct. 2021, https://www.law.georgetown.edu/law-asia/wp-content/uploads/sites/31/2021/10/TongYingKitVerdictGCAL.pdf.
[48] Tong Ying Kit v. Secretary for Justice, [2021] HKCA 912.
[49] HKSAR v. Tong Ying Kit, [2021] HKCFI 2200.
[50] Kellogg, Lai, supra, note 46.
[51] HKSAR v. Tong Ying Kit, [2021] HKCFI 2200.
[52] HKSAR v. Tam Tak Chi, [2022] HKDC 208.
[53] Human Rights Committee, “Concluding observations on the fourth periodic report of Hong Kong, China”, CCPR/C/CHN-HKG/CO/4, 11 Nov. 2022, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/
Download.aspx?symbolno=CCPR%2fC%2fCHN-HKG%2fCO%2f4&Lang=en, para. 41.
[54] Wong, et al, supra, note 20.
[55] Id.
[56] Poon, supra, note 4.
[57] Id.
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