HONG KONG’S top court quashed the prison terms of three Tiananmen vigil activists on Thursday, saying it was a “miscarriage of justice” to jail them for refusing to submit information to national security police.
The judgment is a stinging rebuke to the government, which has targeted dissent using expansive powers under a national security law imposed by Beijing after Hong Kong's huge pro-democracy protests in 2019.
The law can be used to demand information from alleged “foreign agents” and authorities used that power in 2021 on the now-disbanded Hong Kong Alliance, which organised vigils to mark Beijing's 1989 Tiananmen Square crackdown before those events were banned.
Three group leaders -- Chow Hang-tung, Tang Ngok-kwan and Tsui Hon-kwong -- were jailed, each for four and a half months, after they refused to turn over details on group members and finances.
But five judges at the Court of Final Appeal sided with the trio on Thursday and said the prosecution “made it impossible for them to have a fair trial”.
“The court unanimously allows the appeals,“ Chief Justice Andrew Cheung said.
Tang, who had finished serving his prison term, said the ruling was a vindication of his group and urged people not to forget the victims of the Tiananmen crackdown.
“This is hugely gratifying for those who support the Alliance and its volunteers,“ he told reporters outside the court.
“I hope we can prove in the future that the 1989 democracy movement (in China) was not a counter-revolutionary riot.”
The Alliance is facing more serious subversion charges under Hong Kong's national security law and the historical narrative surrounding Tiananmen is expected to be a key point of contention at an upcoming trial.
Redacted evidence
Prosecutors earlier argued the police chief could order people to hand over information when he “reasonably believed” they were foreign agents, without needing to prove it in court.
But top judges said that was a misreading of the law and the police chief made “no attempt” to prove the Alliance was in fact a foreign agent when issuing the 2021 demand.
Judges also blasted prosecutors for heavily redacting evidence that purported to show the Alliance’s overseas links, leaving “pages often completely covered in black ink”.
“The striking feature of the exhibits is that a very large part of each document was redacted,“ they wrote.
“Non-disclosure of the redacted facts in any event deprived the appellants of a fair trial so that their convictions involved a miscarriage of justice.”
Hong Kong used to be the only place on Chinese soil where people could publicly mourn the deadly clampdown on pro-democracy demonstrators in Tiananmen Square on June 4, 1989, but commemorations have gone underground in recent years.
Hong Kong has arrested 320 people for national security crimes and convicted 161 of them as of March 1.
Defendant Chow, a lawyer-turned-activist, remains behind bars awaiting trial in the Alliance subversion case, which could land her in jail for life.
Chow is in good spirits because “she is doing what she feels is right”, her mother said after the ruling.
Chow represented herself in a January hearing and urged the top judges to stop their “complicity” in a police state.
The Court of Final Appeal is keen to shake off the perception of a credibility crisis after a recent exodus of foreign judges, some of whom cited politics as a reason for leaving.
In a separate ruling on Thursday, the same Hong Kong court ruled against activist Tam Tak-chi over a colonial-era sedition offence.
Tam, who is serving a jail sentence of more than three years, argued that prosecutors needed to prove he intended to incite violence.
Judges said the case was largely “transitional” as Hong Kong authorities had already revamped the law last year, so that people can be convicted of sedition even if no intention to incite public disorder or violence was proven.
