NSL arrests in the SAR fully supported by law, evidence

The Hong Kong Police National Security Branch should be commended for another successful mass arrest and search operation on January 6, leading to the detention of 53 hardcore anti-government elements on suspicion of conspiracy to commit subversion under Article 22 of the National Security Law (NSL).

Armed with court warrants, police searched 72 locations across the city and seized large numbers of exhibits. Police also served authorized demands for information and ordered four media companies to turn in related documents. In addition, police froze assets amounting to HK$1.6 million (US$206,400) related to the so-called 35-plus scheme with the objective of seizing control of LegCo and frustrating all government legislative agenda leading to the eventual collapse of government.

The whole operation involved over 1,000 police officers and was executed without a hitch, thanks to the meticulous planning over many months and the professionalism of the officers. It is most interesting to watch the video on the arrest of former Legislative Councilor Lam Cheuk-ting at his home. The arrogance he displayed during an earlier arrest by his former colleagues from ICAC was replaced by one of resignation as he was handcuffed by the arresting police officer.

As expected, anti-government lawyers, in unison with their Western supporters, quickly accused the police of illegal arrest and demanded immediate release. They argued that the violation of Article 22 of the NSL requires the use of force or "unlawful means" to subvert the government and none of these two elements were present in this case.

Article 22 stipulates, as relevant to this case, that "any person who organizes, plans, commits or participates ... through unlawful means to undermine the HKSAR's power to perform duties with a view to subverting State power shall be guilty of an offense". The maximum sentence is life imprisonment. Article 23 also states that any person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission of the offense under Article 22 shall be guilty of an offense, with maximum sentence of 10 years imprisonment.

Experience shows that many more arrests will follow, usually leading to the masterminds, as well as those who aid, abet, or provide financial assistance or properties for the commission of the offense

The facts of the case, as revealed by Senior Superintendent Steve Li Kwai-wah of the police's National Security Branch, are that those arrested were involved in a self-organized ballot by the opposition camp in July last year to help the camp secure 35-plus seats, an absolute majority in the city's legislature. Li said that the only goal of the plan was to paralyze the government. According to the plan, participants in the organized ballots had to sign an undertaking that once they were elected as Legislative Councilors, they must vote down the annual budget twice to paralyze the government’s functioning, subsequently leading to the resignation of the Chief Executive. In June, they set election dates and started crowdfunding and promotion via social media platforms and forums. The now dismissed assistant professor of the University of Hong Kong, Benny Tai Yiu-ting, who initiated the campaign, published his 10 steps strategic plan on how this campaign can lead to the downfall of the HKSAR government. Despite the government's warning that the plan was potentially subversive and may be a violation of the NSL, the informal ballot was held on July 11 and 12, and the so-called result was announced on July 13. The organizers claimed about 610,000 local residents voted. Senior Superintendent Li said the plan was implemented with determination backed by abundant resources, with the goal of paralyzing the government, thereby violating Article 22 of the National Security Law. As pointed out by the Secretary for Security John Lee Ka-chiu, the ballot was "a vicious plan" and if the plan had gone through, Hong Kong would have suffered incalculable losses and been thrown into an abyss.

The opposition lawyers contended that since the Legislative Councilors are perfectly entitled to vote down the government’s budgets, there is no application of "unlawful means" and hence no offense committed.

Such view shows a serious ignorance of the law because their acts should be interpreted in conjunction with the common law offense of "Misconduct in Public Office". It is the legal duty of any Legislator to examine the financial budget, debate it in chamber and cast their votes after due consideration. If any Legislator openly declared well in advance of the budget presentation, and without any knowledge of its content, that he would vote down the budget, this would represent a clear dereliction of duty and liable to this common law offense. Hence the evidence showed that these organizers and participants of the public ballot had conspired together to ensure that the elected legislators would use "unlawful means", i.e. through committing the common law offense of "Misconduct in Public Office" to subvert the SAR government, in bringing the government to a standstill.

It should also be noted that the 72 search warrants and the three Demand for Information orders were issued by the court and surely, they were only issued upon the court's satisfaction that there are reasonable grounds for suspicion of the commission of the NSL offenses.

As with most ICAC major operations, a lot of investigative work would need to be followed up after the search operations, in sifting through the huge volume of exhibits and financial transaction records. Experience shows that many more arrests will follow, usually leading to the masterminds, as well as those who aid, abet, or provide financial assistance or properties for the commission of the offense. Hence, many people, not least those who provided the premises for voting, would now have a hard time sleeping at night anticipating police officers knocking on their doors anytime!

So far, nearly 100 persons had been arrested under the NSL since it was implemented on June 30 last year, including Jimmy Lai Chee-ying, founder of Next Media, which owns Hong Kong newspaper Apple Daily. The new law has clearly demonstrated its efficacy as a turning point in restoring order to the city. It deserves all citizens' support.

The author is an adjunct professor of HKU Space and council member of the Chinese Association of Hong Kong and Macau Studies. He is the former Head of Operations of ICAC and an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily.