Tam Tak Chi is charged with “inciting by words” in an attempt to cause hatred towards the SAR government. However, most of the concerned “seditious words” put on a list by the police have been shouted out as slogans by countless protesters since the anti-extradition movement. If he can be charged with his words, who can be well out of that? I am afraid there will not be enough room to swing a cat in all prison cells if all offenders are thrown in jail. Worse still, if those slogans are a breach of law leading to imprisonment, is there still freedom of speech in the HKSAR?

Whenever the three words “freedom of speech” are brought up, the government’s knee-jerk reaction is to spit out “freedom of speech is not absolute” – yet “not absolute” is not a pass to arbitrarily restrict unpopular remarks. The freedom of speech protected by the Human Rights Act states the purpose from the very beginning that it includes remarks that give rise to antipathy. If the government is given a free hand to identify what antipathy-causing criticisms of the government are a breach of law or not, freedom of speech does not amount to a hill of beans.

This time it is Tam Tak Chi; last time, it was Cheng Lai King. Both are charged with Article 9 and 10 of the Crime Ordinance, which are colonial laws that have already been spurned and abrogated by democratic societies. When the SAR government tabled Article 23 of the Basic Law for legislation 17 years ago, it acknowledged that the Ordinance cannot be retained as it is, and only people involved in seditious words that incite people to commit violent acts can be charged with it. Why didn’t the then SAR government need to preserve this colonial ordinance while the SAR government of today does? Is freedom of speech going backwards? Or has the government retrogressed to a colonial state in which local people hated the governance, hence such an ordinance being needed to awe and frighten the people? Governments of modern civilization do not fear the words from Tam Tak Chi cited by the police. If the words make sense, they should be listened to. If they are nonsensical, they can be explained away or controverted or simply dismissed. To suppress dissenters with draconian laws and severe punishment will only cause further antipathy and hatred.

Carrie Lam’s words and deeds and police force’s brutality and domineering attitude have caused abhorrence and hatred from ordinary citizens. However, both Lam and the police are guiltless while words of abhorrence and hatred towards their remarks and ways of handling things are culpable, even infamous. Is it fair? Where there is injustice, there will be an outcry. Isn’t charging someone with their words inciting the public to hate the government even more? Isn’t the government itself an abetter?

To argue that “charging people with their words” is not necessarily in violation of human rights, hence indicting people for their seditious words not a problem, is another manifestation of swearing black is white. The general public fully understands the legal principles in which freedom of speech is basic human right. Any ordinance or policy that imposes restrictions on freedom of speech shall firstly delineate unequivocally the scope of restrictions, secondly have legitimate objectives, thirdly be aimed at achieving the objectives with reasonable measures, fourthly be necessary, and by and large, maintain a proper proportion of restrictions on individual rights to protection of public interests, and of costs to rewards, or else it is in violation of law. One could get away with inciting racial hatred, but could the Secretary for Justice get away with wiping out dissent with the crime of sedition?

(Margaret Ng Ngoi-yee is a barrister, writer and columnist in Hong Kong. She was a member of the Legislative Council of Hong Kong from 1995-1997; 1998-2012.)

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