08 Apr 2015 HKTR database tracking online-speech related arrests in Hong Kong
Hong Kong Transparency Report has set up an exploratory database tracking the legal proceedings of online speech related arrests in Hong Kong.
The database’ sources include the judiciary library, government announcements and mainstream media reports. As the majority of the cases were heard at the Magistrates’ Courts, official legal documents are not publicly available.
The database has collected 12 cases between 2005 and 2015, with netizens’ ages ranging from 15 to 42. Over half of the messages that led to web users’ arrests were posted on HKGolden, a popular local online forum. In at least two cases, the police traced the IP addresses of the online postings to the defendants’ home addresses, according to the related media report (in Chinese) and the verdict.
From last October to December, or during the Occupy Central period, the police arrested at least five online users for posting inflammatory messages on Internet forums. The content of those messages includes encouraging people to cripple public transportation, attack policemen or to storm government buildings. Those arrests have sparked debate on how to strike the right balance between police’s duty of keeping public order and netizens’ right to freedom of speech.
Police cited section 161 of Crimes Ordinance, or ‘access to computer with criminal or dishonest intent’, for those four arrests. Professor William Partlett from the Law Faculty of the Chinese University of Hong Kong questioned the police’s use of S161 in these cases:
“There are strong arguments that the legislative intent of Sec 161 should not reach online incitement. Case law has discussed how this crime was meant to criminalise hacking and credit card theft. The actual use of a computer for a criminal purpose. Not the use of a computer to incite.”
Pan-democratic legislators have raised the concern over whether the police are using S161 to suppress political speech. IT Legislator Charles Mok moved a motion at the LegCo to review “access to a computer with criminal or dishonest intent” in March. The motion was denied.
During a recent court hearing on the 20-year-old engineering student Tong Wai-leung, who posted threatening message about a police officer’s daughter last October, a Magistrate was quoted as saying that “publishing threatening content online is more serious than real-world attacks or threatening”, and he called for a deterrent sentence. The South China Morning Post reported the defendant is likely to face jail.
Last December, a 15-year-old middle school student surnamed Wong who posted storming LegCo guide last June was arrested under S161 and was sentenced to rehabilitation centre by the Eastern Magistrates’ Courts. He said he would like to appeal, according to the RTHK story.
“It is often the case that the Magistrates are less receptive to individual rights claims than the higher court judges,” Partlett noted.
Back in 2010, web user Chan Yau-Hei posted on the HKGolden forum his plan of bombing the Central Liaison Office in Hong Kong. He was arrested charged with the offence of “committing an act of outraging public decency”, contrary to common law, and was sentenced to serve a 12-month-long probation by the Magistrates’ Court . His conviction was overturned by the Court of Final Appeal in 2014, as the judges ruled that “although the message posted by the appellant is deserving of condemnation, the public element of the offence is not satisfied.”
Check out our database here.
Related media stories:
“Protesters in Hong Kong on Edge as Police Track Their Online Footprints“, New York Times