The Hong Kong Court of First Instance upheld pro-democracy activists Chow Hang-tung, Tang Ngok-kwan and Tsui Hon-kwong’s convictions of failing to comply with notice to provide information under Article 43 of the China-imposed National Security Law.

Schedule 5 of the Implementation Rules of Article 43 states that the Commissioner of Police may serve a notice requiring foreign agents to provide information on offenses that endanger national security. Information may include the activities, assets and personal particulars of members of foreign organizations in Hong Kong.

The activists argued that they were not obligated to comply with the notice as the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, which the three were a part of, was not a foreign agent. However, Judge Lai ruled that being a foreign agent is not an element of the offense. The activists also sought to challenge the legality of the notices by arguing that they were ultra vires or of retrospective effect. The court refused to consider the collateral challenge to the legality of the notices because the activists should have challenged the legality by judicial review, which one of the defendants did but later dropped the application.

In addition, Lai emphasized that the Commissioner of Police should enjoy wide powers to facilitate the implementation of the National Security Law. Lai wrote:

To put [Article 43 of the National Security Law] into effect, the clear intent of the legislative body…is to confer upon the [Commissioner of Police] wide powers to investigate into the offenses endangering national security. In particular, in the case of territorial investigation, such powers must be given a wide ambit so as to give full use and effect to the…purposes of resolutely safeguarding national security and opposing external interference.

The activists also argued that, in giving public interest immunity to the prosecution, the magistrate deprived the activists of their right to a fair trial. Lai also rejected this claim and held that the information was properly redacted and the immunity did not cause any unfairness to the activists.

Dismissing the sentencing appeal, Lai held that the activists were “clearly determined from the outset not to comply with the requirement of the [n]otices,” since they announced their non-compliance with the notice in an open letter to the Commissioner of Police on September 7, 2021.

The West Kowloon Magistrates’ Courts previously imposed on the activists a four-and-a-half month prison sentence on March 11, 2023, over failing to comply with the Commissioner of Police’s notice to provide information as former members of the disbanded Hong Kong Alliance in Support of the Patriotic Democratic Movements of China. The alliance organized Hong Kong’s annual Tiananmen Square vigils until it disbanded in September 2021.

Relatedly, on January 25, the Court of Final Appeal overturned Chow’s acquittal and reinstated her conviction of inciting others to participate in an unauthorized assembly under Section 17A(3)(a) of the Public Order Ordinance and the common law. On October 31, 2023, the High Court dismissed Chow’s application which sought to declare her as a party to the injunction appeal proceedings of the protest-related song “Glory to Hong Kong.”