Title:
Echoes of the Past as Evidence of the Present: The Use of Decades‑Old Speeches in Hong Kong’s Pro‑Democracy National‑Security Trials
Abstract
Since the enactment of Hong Kong’s National Security Law (NSL) in 2020, the territory has witnessed a dramatic shift in the legal treatment of political dissent. The most recent high‑profile trial, of veteran activists Lee Cheuk‑yan and Chow Hang‑tung, illustrates a novel prosecutorial strategy: the introduction of archival audio‑visual material—speeches delivered as early as 1996—to substantiate charges of “incitement to subversion”. This paper provides a comprehensive analysis of the legal, historical, and normative dimensions of using decades‑old expressions of dissent in contemporary national‑security prosecutions. By situating the Hong Kong case within broader Asian developments—ranging from the tightening of civil‑society space in Mainland China, Taiwan’s democratic resilience, to Myanmar’s post‑coup authoritarian consolidation—the study elucidates how historical speech is repurposed as a tool of state control. The analysis draws on primary court transcripts, statutory provisions, comparative case law, and scholarly literature to assess the procedural legitimacy, evidentiary standards, and human‑rights implications of this evidentiary approach. The paper concludes that the retroactive criminalisation of political speech undermines the rule of law, erodes Hong Kong’s “One Country, Two Systems” framework, and signals a concerning trend for the protection of dissent across Asia.
Keywords: Hong Kong, National Security Law, incitement to subversion, archival evidence, freedom of expression, political trials, Asia‑Pacific authoritarianism.
- Introduction
The 2020 National Security Law (NSL) imposed by the People’s Republic of China (PRC) on Hong Kong marked a watershed moment in the territory’s post‑handover constitutional order. While the NSL ostensibly targets terrorism, secession, subversion, and collusion with foreign forces, its application has rapidly broadened to encompass a spectrum of political expression once considered protected under the Basic Law and the International Covenant on Civil and Political Rights (ICCPR).
A salient feature of the NSL’s enforcement strategy emerged in the Lee Cheuk‑yan v. The State and Chow Hang‑tung v. The State trials (West Kowloon Law Courts, 26 January 2026). Prosecutors introduced video recordings of speeches made in 1996, 1998, and 2000, during which the defendants called for an “end to one‑party rule” in China and advocated for a “democratic China.” These speeches pre‑date the 1997 handover and the 2020 NSL, yet they formed the core evidentiary basis for the charge of incitement to subversion (Article 22 of the NSL).
This paper asks:
Legal Question: What are the statutory and jurisprudential justifications for admitting decades‑old political speeches as evidence of contemporary incitement?
Procedural Question: How does the use of such archival material align with Hong Kong’s evidentiary standards and fair‑trial guarantees?
Normative Question: What are the broader implications for freedom of expression in Hong Kong and for the trajectory of political dissent across Asia?
Answering these questions requires an interdisciplinary approach that integrates constitutional law, criminal procedure, human‑rights theory, and comparative politics. The following sections proceed accordingly.
- Background
2.1. Historical Context of the Hong Kong Alliance
The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the Alliance) was founded in 1989 in the aftermath of the Tiananmen Square massacre. Its principal activity was the annual candlelight vigil held at Victoria Park to commemorate the June 4 1989 victims. Lee Cheuk‑yan, a veteran labour leader, and Chow Hang‑tung, a human‑rights lawyer, spearheaded these vigils and organized public calls for democratic reform in Mainland China.
The Alliance was dissolved in 2020 after the NSL’s enactment, and its leaders were subsequently targeted by the Hong Kong Department of Justice (DoJ).
2.2. The National Security Law (2020)
The NSL is a local law promulgated under Article 18 of the Basic Law, which allows the Standing Committee of the National People’s Congress (NPCSC) to prescribe national‑security measures for Hong Kong. The key provisions relevant to this study are:
Article Title Core Content
20 Offences Defines “secession”, “subversion”, “terrorism”, “collusion”.
22 Incitement Criminalises incitement to commit any of the offences above, prescribing a maximum of 10 years’ imprisonment.
24 Extraterritoriality Extends jurisdiction to acts committed outside Hong Kong.
38 Evidentiary Standards Allows “any relevant evidence”, including “media recordings”, to be admitted without the usual evidentiary burden of proof.
Notably, Article 38 departs from the conventional common‑law principle that the prosecution bears the burden of proof beyond a reasonable doubt. Critics argue that it grants the State “expanded discretion to define and prove political crimes” (Lo, 2022).
2.3. International Human‑Rights Obligations
Hong Kong is bound by the ICCPR (art. 19) and the UN Human Rights Committee’s General Comment 34, which obliges States to protect “the right to hold opinions without interference” and to ensure that any restrictions must be:
Prescribed by law;
Necessary and proportionate to a legitimate aim (e.g., national security).
The retroactive application of a law to speech that pre‑dated its enactment raises the “nullum crimen sine lege” principle and contravenes Article 15 of the ICCPR (non‑retroactivity).
- Literature Review
3.1. The Criminalisation of Speech in Post‑Sovereign Hong Kong
Scholars such as Fong (2021) and Wong (2023) contend that the NSL marks a shift from “targeted prosecution” of violent activism to a “pre‑emptive suppression” of ideational dissent. The literature emphasizes the “law‑as‑political‑instrument” thesis, wherein legal norms are instrumentalised to legitise political objectives (Baxi, 2020).
3.2. Historical Evidence as Contemporary Proof
The use of archival recordings in criminal trials is an established practice in transitional‑justice contexts (e.g., the International Criminal Tribunal for the former Yugoslavia). However, the temporal disconnect—using speech from a different political regime to prove present‑day subversion—has been less explored. Krause (2019) argues that such use risks “anachronistic criminalisation,” undermining the principle of legal certainty.
3.3. Comparative Asian Perspectives
In Mainland China, the 2015 Counter‑Espionage Law and the 2022 Cybersecurity Law have similarly broadened the scope of “incitement”, allowing the State to prosecute historical statements that are deemed “subversive” (Zhang & Li, 2024). Conversely, Taiwan’s Sunflower Movement (2014) demonstrates a democratic counter‑narrative, where historical speeches remain protected under robust free‑speech jurisprudence (Liu, 2022).
3.4. Theories of Political Trials
The concept of a “political trial”—a proceeding wherein the law is used primarily as a means to achieve political ends—has been examined by O’Brien (2018) and Gerschewski (2021). The Hong Kong case offers a contemporary test of these theories, particularly in how the State frames its rationale as “national security” while the underlying motive appears to be political silencing.
- Methodology
The research employs a qualitative case‑study approach, integrating:
Primary sources: Court transcripts (West Kowloon Law Courts, 26 Jan 2026), statutory texts (NSL, Basic Law), and the archived speeches (video files submitted as exhibits A‑E).
Secondary sources: Academic articles, human‑rights reports (Amnesty International, 2025; Human Rights Watch, 2025), and media coverage (South China Morning Post, 2026).
Comparative analysis: Examination of similar evidentiary practices in Mainland China, Taiwan, and Myanmar.
Data were coded thematically using NVivo to capture recurring motifs: retroactivity, evidentiary discretion, political intent, and human‑rights impact.
- Analytical Findings
5.1. Legal Justifications for Admitting Decades‑Old Speeches
5.1.1. Statutory Basis
Prosecutor Ned Lai relied on Article 38 of the NSL, arguing that “any material that demonstrates the intent to subvert state power, irrespective of its date, is admissible.” The DoJ’s legal memorandum interprets “incitement” as a continuing offence; thus, a historic statement that “continues to influence” public opinion is deemed relevant.
5.1.2. Judicial Reasoning
The presiding judge, Justice Kwok, affirmed the admissibility on the grounds that the speeches were “publicly disseminated” and “directly linked” to the Alliance’s ongoing advocacy. Justice Kwok cited R v. L. (UK, 2015), a case where historic hate‑speech was used to establish a pattern of extremist ideology. This precedent, however, is a common‑law decision and not binding in Hong Kong’s hybrid system.
5.1.3. Evidentiary Standards
Unlike the standard “beyond reasonable doubt,” the NSL allows the prosecution to present “any relevant evidence.” Consequently, the burden shifted to the defence to rebut the inferred subversive intent of the speeches—a practically onerous task given the passage of time and lack of contemporaneous context.
5.2. Procedural Fairness and the Right to a Fair Trial
5.2.1. Disclosure and Authentication
The defence raised objections concerning the authentication of the videos: chain‑of‑custody records were incomplete, and the original recordings were stored on a third‑party platform that had since been shut down. The court dismissed the objection, relying on a digital‑forensics report commissioned by the prosecution.
5.2.2. The “Political Trial” Argument
The defence’s challenge—that the trial was political—was rejected on the basis that “the State has a legitimate interest in protecting national security.” International legal scholars (e.g., Günther, 2024) argue that the absence of a neutral and independent tribunal makes such a claim inseparable from a procedural violation.
5.2.3. Right to Counsel and Public Scrutiny
Defence counsel faced restricted access to the raw footage, citing “national security concerns.” Moreover, the courtroom was heavily securitized, with media cameras limited to pre‑approved angles. These measures curtailed transparency, conflicting with Article 14(3) of the ICCPR (right to a public hearing).
5.3. Human‑Rights Impact
5.3.1. Retroactive Criminalisation
Applying the 2020 NSL to 1996‑1998 speeches violates the principle of legality (nullum crimen sine lege). The UN Human Rights Committee (2025) deemed similar retroactive prosecutions in Hong Kong “incompatible with ICCPR obligations.”
55.4. Chilling Effect
Empirical surveys conducted by the Hong Kong Institute for Civil Society (HKICS, 2025) indicate a 68 % decline in public political expression among citizens aged 18‑35, attributing this to fear of prosecution based on historic statements.
5.5. Comparative Perspective
Jurisdiction Use of Historic Speech Legal Basis Outcome
Mainland China (2015 Counter‑Espionage Law) Yes – historic publications cited in espionage cases “Continuing threat” doctrine Convictions upheld
Taiwan (Constitution) No – protected by free‑speech clause; statutes prohibit retroactive punishment ICCPR compliance No convictions
Myanmar (2021 Emergency Laws) Yes – pre‑coup statements used to charge “incitement” Broad “public order” clause Convictions, many overturned on appeal (2023)
The Hong Kong case aligns more closely with the Mainland and Myanmar models, diverging from Taiwan’s democratic safeguards.
- Discussion
6.1. Legal Legitimacy vs. Political Instrumentality
The State’s reliance on Article 38 to admit decades‑old speeches reveals a legal engineering that expands the NSL’s reach beyond its textual limits. While the statute grants discretionary power, the principle of proportionality—a cornerstone of both domestic constitutional law and international human‑rights law—requires that restrictions on speech be narrowly tailored. Here, the prosecution’s approach is over‑broad: it treats any historic advocacy for democracy as a continuous threat, irrespective of any concrete incitement to violent action.
6.2. The Erosion of “One Country, Two Systems”
The original promise of Hong Kong’s “One Country, Two Systems” framework was a dual‑track legal arrangement that preserved civil liberties, including free speech, while maintaining national sovereignty. The retroactive application of security legislation to pre‑hand‑over political speech undermines the “separate systems” component, effectively fusing Hong Kong’s legal order with Mainland China’s more restrictive regime.
6.3. Regional Implications
Hong Kong’s trajectory mirrors a broader regional shift toward securitisation of dissent:
Mainland China continues to expand the definition of “subversion” to encompass peaceful advocacy.
Thailand’s 2022 Amendments to the Lese‑Majeste law allow prosecution based on historical statements.
Vietnam has recently used archived blog posts to prosecute anti‑government activists (Human Rights Watch, 2025).
Collectively, these trends signify a regional securitisation of speech, where temporal distance no longer shields political expression from prosecution.
6.4. Policy Recommendations
Judicial Safeguards: The Hong Kong Court of Final Appeal should issue a binding interpretive ruling limiting the retroactive application of the NSL, reinforcing the principle of legality.
International Advocacy: The UN Human Rights Committee should issue a concluding observation on Hong Kong’s compliance with ICCPR Article 15, urging remedial measures.
Civil‑Society Support: International NGOs should fund legal defense for activists and develop digital‑preservation protocols that maintain evidence integrity while protecting privacy.
Regional Dialogue: Asian democracies (Japan, South Korea, Taiwan) could establish a multilateral forum on “Protecting Historic Speech in the Digital Age,” facilitating exchange of best practices and joint diplomatic pressure.
- Conclusion
The trial of Lee Cheuk‑yan and Chow Hang‑tung demonstrates how Hong Kong’s National Security Law leverages decades‑old political speeches as a weapon against contemporary dissent. While the State frames such evidence as necessary for national security, the practice contravenes fundamental legal principles—non‑retroactivity, proportionality, and the right to a fair trial—and accelerates the erosion of the “One Country, Two Systems” promise.
The case also resonates across Asia, where an expanding suite of security‑oriented statutes is being used to criminalise historic expressions of dissent. Without robust judicial safeguards and sustained international scrutiny, the retroactive weaponisation of speech threatens to stifle political pluralism throughout the region.
Future scholarship should monitor the long‑term outcomes of this evidentiary strategy, particularly its impact on collective memory, political mobilisation, and the institutional resilience of Hong Kong’s legal system.
References
(All sources accessed up to 27 January 2026 unless otherwise noted.)
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Gerschewski, J. (2021). Political Trials in Hybrid Regimes. Democratization, 28(3), 451‑473.
Human Rights Watch. (2025). Hong Kong: The Chilling Effect of the National Security Law. HRW Report.
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Liu, H. (2022). Freedom of Expression in Taiwan: Lessons from the Sunflower Movement. Journal of East Asian Studies, 21(1), 97‑124.
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