The safety of journalists reporting in Hong Kong is at stake, say lawyers and media practitioners who are baffled by the absence of a clear line to demarcate what constitutes “infringement of national security” in press coverage.

Possible implications of a Thursday law enforcement operation are being raised as the police cite national security laws to make five arrests, comb the Apple Daily newsroom and cart off loads of items.

One barrister, Stephen Char, wondered if the national security law could be applied retrospectively, while fellow lawyer Albert Luk noted the ambiguity in the law as to what constituted illegality in news reportage.

Luk, a barrister, said that with the implementation of the law, journalists could be penalized for their roles in the reporting, writing and editorial decision-making of articles the government considered as threats to state security.

According to the police, the five arrested employees allegedly broke Article 29 of the national security law, which prohibits “collusion with a foreign country or with external elements to endanger national security.”

The police’s Senior Superintendent Steve Li said that more than 30 Apple Daily articles published since 2019 had called for sanctions against China and Hong Kong. Li said the five were crucial in the publishing operations and should be held responsible for the content style and direction of the articles. He held out the possibility that more might be arrested.

Secretary for Security John Lee accused the five of “colluding with foreign countries or external powers while using newsgathering as umbrella protection,” and of calling for overseas sanctions and other hostile actions, jeopardizing national security. Lee called Apple Daily’s assets “dirty money” and added that a notice to freeze the assets had been issued.

Neither official specified which parts of the reporting were deemed to have flouted the national security law.

Char said that as this case involved freedom of the press, courts in common law jurisdictions would be particularly cautious when issuing search warrants. He questioned whether the law could be used retroactively, as the police had said that the allegedly problematic articles were published from 2019, which preceded Beijing’s passage of the law on June 30, 2020.

Luk said the current search warrant was about “news materials” and did not give the police carte blanche, which meant enforcement agencies had the right to take away only documents relevant to this specific case. However, the term “relevant” was legally arguable, he said. If someone challenged the police operation on the spot, the scene would often be sealed off until the court decided what information should be deemed relevant.

Yet, the fact that the police allowed just a few people to be present during their search meant there was a lack of witnesses in the process, which could cause controversy in court, Luk said.

“If something key or sensitive has been found, but is questioned by someone as to where it is from, no one can be a witness,” Luk said.

When asked what type of news reporting might be seen as crossing the line, he said this point was of great concern in the legal sector, whose practitioners were “also unsure about where the line actually is.”

The barrister added that mere employment by Apple Daily should not be grounds for arrest. Legal consequences were possible if there was proof of the journalist’s involvement in the production of what the government believed to be “endangering national security” after the law’s enactment. Luk said the risk was not about whether the said person was currently employed, but was related to the extent of the person’s knowledge of the offending content.

Eight media worker unions released a joint statement expressing shock and unease. They included the Hong Kong Journalists Association, the Hong Kong Press Photographers Association, the Next Media Trade Union and the RTHK Programme Staff Union.

More than 500 police officers were deployed for the raid, a number which Journalists Association chair Chris Yeung called “extremely terrifying.” He said the fact that a media outlet was considered threatening state security and being prosecuted for publishing articles was even more terrifying.

Yeung said he could not understand how the work of reporting the news would endanger national security, or why the police needed access to news materials. The vagueness with which the national security law was used on the industry was extremely worrying, he said. The government should clarify as soon as possible what it would regard as endangering national security.

The arrests and the newsroom raid would seriously affect freedom of the press and made the public cautious about speaking openly to reporters, Yeung said. He was concerned that the prosecution of Apple Daily might spread fear in society and also spark more self-censorship in the media.

Andrew Shum, chief executive of rights group Civil Rights Observer, commented that the law needed to be clear, and yet the police action once again proved the national security law was vague. He also said the government’s call for the public to “cut off relations with Apple Daily” was very hard to understand.

“What does ‘cut off’ mean? The newspaper is for sale. It’s a normal product to be sold. Does the law control what the public is allowed to buy? This is unbelievable,” he said.

Hong Kong Baptist University journalism lecturer Bruce Lui said that law enforcement should adhere to the principle that one was “innocent until proven guilty.” The national security law should not be applied widely and generally, he said.

“There can be a number of articles considered as breaking the national security law, but most of [Apple Daily’s] articles have no relation to national security — such as features or other local news. These differentiations need to be made,” Lui said.

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