2022 Hong Kong Policy Act Report
BUREAU OF EAST ASIAN AND PACIFIC AFFAIRS
MARCH 31, 2022Share
Consistent with Sections 205 and 301 of the United States-Hong Kong Policy Act of 1992 (the “Act”) (22 U.S.C. §§ 5725 and 5731) and section 7043(f)(3)(C) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2022 (Div. K, P.L. 117-103), the Department submits this report and the enclosed certification on conditions in Hong Kong from March 2021 through March 2022 (“covered period”).
The Department of State assesses that during the covered period, the central government of the People’s Republic of China (PRC) took new actions directly threatening U.S. interests in Hong Kong and that are inconsistent with the Basic Law and the PRC’s obligation pursuant to the Sino-British Joint Declaration of 1984 (Sino-British Joint Declaration) to allow Hong Kong to enjoy a high degree of autonomy. In the Certification of Hong Kong’s Treatment under United States Laws, the Secretary of State certified Hong Kong does not warrant treatment under U.S. law in the same manner as U.S. laws were applied to Hong Kong before July 1, 1997.
During the covered period, PRC authorities took actions that eliminated the ability of Hong Kong’s pro-democracy opposition to play a meaningful role in the city’s governance and effectively criminalized peaceful political expression critical of the central and local governments. The PRC National People’s Congress Standing Committee (NPCSC) passed a decision imposing sweeping changes to Hong Kong’s electoral system that blocked the participation of political groups not approved by Beijing and greatly diminished Hong Kong voters’ ability to elect representatives of their choice.
PRC and Hong Kong authorities targeted groups, associations, media companies, and labor unions affiliated with the region’s pro‑democracy movement with raids, arrests, prosecutions, and asset freezes, creating a chilling effect and forcing them and other organizations to cease operations, including two of Hong Kong’s largest independent media outlets, Apple Daily and Stand News. With Beijing’s support, Hong Kong authorities continued to use the Law of the PRC on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) to undermine rights and freedoms, including freedoms protected under the Basic Law and the Sino-British Joint Declaration. Hong Kong police and prosecutors employed the NSL to detain individuals for lengthy periods without trial for nonviolent political expression or activities, including 47 activists and politicians charged with “subversion” for involvement in an unofficial primary election in July 2020. Those charged under the NSL were denied bail unless the judge had sufficient grounds for believing the accused would “not continue to commit acts endangering national security,” an extremely broad and vague standard under the NSL. Hong Kong authorities restricted activities and cultural works commemorating the 1989 Tiananmen Square massacre, and arrested, charged, or convicted at least 33 individuals in connection with those activities.
Impact on Democratic Institutions and Universal Suffrage
During the covered period, PRC and Hong Kong authorities deliberately acted to restrict the ability of Hong Kong voters to elect representatives of their choosing, and PRC officials played an unprecedented role in directing the outcome of the Hong Kong elections. In March 2021, the NPCSC, the highest body within the PRC legislature, issued a decision that overhauled Hong Kong’s electoral system to ensure Beijing could fully control the outcome of any future election. The decision required that all candidates for public office be pro-Beijing “patriots” and required them to undergo an extended nomination and vetting process, without possibility of appeal. It overhauled the composition of the Chief Executive Election Committee (CEEC) that selects Hong Kong’s chief executive, reducing the number of voters for CEEC seats by 97 percent, and created a system in which more than 1,100 of the 1,500 seats in the new CEEC were uncontested in the September 2021 CEEC election. The decision also changed the makeup of the Legislative Council (LegCo), Hong Kong’s legislature. Under the new system, Hong Kong voters directly elect only 20 of LegCo’s 90 members, compared to 40 out of 70 previously. The CEEC directly selects 40 LegCo members, while the remaining 30 are selected as representatives of “functional constituencies” for various economic and professional sectors. These changes ran directly counter to provisions in the Basic Law that describe the election of the Chief Executive and LegCo via universal suffrage as the “ultimate aim.”
In CEEC and LegCo elections in September and December 2021, respectively, pro-Beijing candidates won all but one seat in each body. No major opposition party fielded candidates in the December 2021 LegCo election, frequently citing that many of their leaders and members were detained or imprisoned on politically motivated charges. Turnout for the election was only 30.2 percent (29.6 percent, excluding blank and invalid ballots), an historic low for a LegCo election.
In May 2021, Hong Kong authorities passed new legislation, in accordance with the NSL, that required all elected members of local district councils to swear loyalty oaths to Beijing. The district councils are Hong Kong’s only representative bodies elected solely through universal suffrage, and the opposition pan‑democratic camp won 388 out of 479 seats in the 2019 district council elections. After the legislation passed, Hong Kong officials told local media that council members who took the oath and were subsequently disqualified for giving “insincere” oaths might be required to reimburse the Hong Kong government for up to hundreds of thousands of U.S. dollars in salaries and expenses. More than 260 district council members resigned rather than take the oath. Hong Kong authorities subsequently administered the loyalty oaths to the remaining district council members in September and October 2021, then disqualified 49 pan‑democratic district council members without possibility of appeal. Local observers assessed the imposition of loyalty oaths, the effort to pressure district council members to resign, and the disqualification of dozens of elected officials constituted a move by Hong Kong authorities to overturn the results of the 2019 election and break the pan-democratic camp’s hold over the district councils.
In August 2021, the Hong Kong Chief Secretary announced that Cheng Chung-tai, one of two LegCo members at the time who did not caucus with the pro-Beijing camp, had failed to pass the vetting process to run for a seat on the CEEC. As a result, Cheng was also disqualified from his LegCo seat with immediate effect.
Media reports indicated that officials from the Liaison Office of the Central People’s Government, the PRC’s primary representative office in Hong Kong, actively recruited candidates for the December 2021 LegCo election. On several occasions before the LegCo election, officials from the PRC State Council Hong Kong and Macau Affairs Office delivered remarks giving criteria for the type of “patriots” who would be permitted to run in Hong Kong elections.
Impact on Police and Security Functions
Hong Kong authorities used the NSL, which the NPCSC imposed on Hong Kong in June 2020, to conduct politically motivated arrests and prosecutions against individuals and groups affiliated with the pro-democracy movement. During the covered period, authorities arrested at least 51 individuals in connection with alleged violations of the NSL, including secession, subversion, terrorist activities, and collusion with a foreign country or external elements to endanger national security, which includes “provoking hatred” against the PRC or Hong Kong governments. Authorities filed charges against at least 82 individuals and organizations, including 47 activists and politicians detained on February 28, 2021, and subsequently charged them with subversion the following day in connection to the 2020 unofficial pan-democratic primary election. During the covered period, two individuals were found guilty of violating the NSL at trial, while four pled guilty to violating the NSL.
Authorities also detained, prosecuted, and imprisoned a growing number of individuals under colonial-era statutes on “sedition” and “unauthorized assembly.” With few exceptions, the individuals arrested and prosecuted under the NSL, or these colonial-era statutes were exercising freedoms guaranteed in the Basic Law and the International Covenant on Civil and Political Rights.
The NSL grants the Hong Kong Police Force (HKPF) broad authorities to conduct wiretaps, electronic surveillance, and searches without warrants in national security-related cases, and to require internet service providers to provide or delete information relevant to these cases. During the covered period there were credible reports that PRC security services and the Office of Safeguarding National Security (OSNS) monitored pro-democracy and human rights activists and journalists in Hong Kong.
Impact on Judicial Independence and the Rule of Law
The Sino-British Joint Declaration, as well as Hong Kong’s Basic Law, provide for an independent judiciary, but during the covered period PRC and Hong Kong authorities repeatedly took actions that eroded the judiciary’s independence and ability to uphold the rule of law, particularly in cases that Hong Kong authorities designated as involving national security. The NSL states the NPCSC, rather than Hong Kong courts, has the power to interpret the NSL. The Court of Final Appeal, Hong Kong’s highest court, ruled in January 2021, that it had no power to find the NSL or any of its provisions unconstitutional or invalid based on incompatibility with the Basic Law or the International Covenant on Civil and Political Rights. NPCSC decisions have the force of law in Hong Kong and are not subject to judicial review by Hong Kong courts.
The NSL provision that authorizes the mainland China judicial system to take over any national security-related case at the request of the Hong Kong government or the OSNS was not used during the covered period.
Local authorities consistently followed an NSL provision requiring the Hong Kong Chief Executive establish a list of judges to handle any cases concerning national security-related offenses. Although Hong Kong’s judiciary selects the specific judge(s) from a list of judges who may hear any individual case, legal scholars argued this unprecedented involvement of the chief executive weakens Hong Kong’s judicial independence. OSNS activities are not subject to Hong Kong legal jurisdiction, and decisions made by the Committee for Safeguarding National Security are not subject to judicial review under the NSL.
Under the NSL, in cases concerning offenses designated as endangering national security Hong Kong authorities may designate that a panel of three specially designated national security judges will hear a case instead of a jury. During the covered period, in the first NSL case to go to trial the Hong Kong Secretary for Justice issued a certificate for the case to be heard by such a three-judge panel after claiming, without providing justification, that there could be a potential risk to jurors.
The NSL empowers Hong Kong law enforcement authorities to freeze any assets they deem to be used for, intended to be used for, or otherwise related to an offense endangering national security. Hong Kong authorities used these powers regularly during the covered period to freeze assets belonging to civil society groups, media organizations, and other targets under investigation for pro-democracy activities.
The NSL increased the threshold for bail in national security-related cases. Under the NSL, defendants charged with national security-related offenses may not be granted bail unless the judge has sufficient grounds to believe the defendant or suspect will not continue to commit acts endangering national security. Under this higher threshold for bail, many defendants charged under the NSL remain in custody months after their initial detention. For example, a majority of the 47 individuals charged with subversion for involvement in the 2020 unofficial pan-democratic primary election remain detained without trial more than a year after their February 2021 detention. Police detained and charged these individuals en masse, then demanded lengthy delays to investigate and gather evidence against them. Some activists and scholars described these lengthy pre-trial detentions for nonviolent crimes as prejudicial to defendants’ rights and an infringement on the right to a fair trial.
On several occasions during the covered period, prosecutors argued for the denial of bail based on defendants’ routine interactions with foreign governments and media outlets. For example, former lawmaker Jeremy Tam was denied bail after prosecutors argued that an email invitation from a foreign consulate constituted evidence that he was still “of interest to foreign powers,” while another former lawmaker, Claudia Mo, was denied bail in part based on interviews and text messages with foreign press. Media executive Cheung Kim-hung was denied bail after prosecutors cited a statement by the Media Freedom Coalition, signed by 21 governments, and a separate statement from the UK Foreign Secretary criticizing Cheung’s arrest, claiming that these statements were evidence of a close association between Cheung and “foreign political groups.”
During the covered period, Hong Kong prosecutors and police increasingly designated cases as related to national security even if they did not involve alleged violations of the NSL itself, including prosecutions under the colonial-era sedition statute. Authorities argued that NSL procedures regarding bail, the use of a designated national security judge, and limits on the right to trial by jury also apply to these cases, effectively widening the applicability of the NSL. In December 2021, the Court of Final Appeal ruled that the NSL’s higher threshold for bail applies to all cases designated as involving national security, which some scholars argued would accelerate the impact of the NSL on other areas of Hong Kong’s legal system.
In October 2021, the Hong Kong Legal Aid Department announced that Hong Kong authorities would assign lawyers to provide legal aid recipients in criminal cases, and that each lawyer would only be able to accept a limited number of legal aid and judicial review cases each year.
During the covered period, PRC-controlled state media outlets in both Hong Kong and mainland China repeatedly accused Hong Kong judges of bias following the acquittals of protesters accused of rioting and other crimes. At least one judge reportedly emigrated from Hong Kong during the covered period after receiving criticism from state media outlets for rulings in protest-related cases.
Impact on Freedom of Speech or Expression
Hong Kong law provides protections for freedom of speech, but the government regularly took actions infringing on this right. Hong Kong and PRC authorities and PRC-controlled media outlets regularly described speech perceived to be critical of the PRC or Hong Kong governments as violating the NSL or sedition laws.
Authorities arrested and prosecuted activists for speech critical of the central or local governments or their policies, including on social media. In June 2021, Chow Hang-tung, the then-vice chair of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, was arrested and later charged and convicted for inciting unauthorized assembly because she urged people to “turn on the lights wherever you are” in remembrance of the Tiananmen Square massacre. In July 2021, officers from the HKPF National Security Department arrested and later charged five members of a labor union with “conspiring to publish seditious publications” after the union published a series of children’s books that implicitly referred to the 2019 pro-democracy movement. Authorities subsequently froze the union’s assets and canceled the union’s registration for alleged activities inconsistent with the union’s stated objectives. Hong Kong officials accused the books of “inciting hatred” and “poisoning” children’s minds against the PRC and Hong Kong governments.
During the covered period, Hong Kong authorities repeatedly targeted freedom of expression in connection with the 1989 Tiananmen Square massacre. In June 2021, authorities raided a museum dedicated to memorializing the massacre, following allegations that the museum did not have the appropriate license. The museum closed later that month. In December 2021, three Hong Kong universities removed and dismantled sculptures and artworks commemorating the massacre from their campuses, citing unspecified legal risks. The removal of at least one of the sculptures came despite an ongoing legal dispute regarding the sculpture’s ownership and an offer from the sculpture’s creator to remove the art from Hong Kong.
Prosecutors argued in multiple court hearings that the phrase “Liberate Hong Kong, Revolution of Our Times,” a common slogan of the 2019 pro-democracy protests, contained an inherent meaning of support for Hong Kong independence and/or a change in Hong Kong’s constitutional status. During the covered period, courts convicted two individuals of violating the NSL on that basis. Scholars and activists have argued the courts’ decisions failed to take into consideration protections for freedom of speech or expression enshrined in the Basic Law, the International Covenant on Civil and Political Rights, and the NSL itself.
In May 2021, Hong Kong authorities passed new legislation that criminalized inciting others not to vote or to cast blank ballots. Violators are subject to up to three years’ imprisonment and a fine. Authorities arrested at least ten individuals during the covered period for social media posts allegedly urging others to cast blank or invalid ballots and filed charges against at least two.
Legal experts described the legislation as conflicting with common law norms that criminalize incitement only when the behavior exhorted is itself illegal. Hong Kong officials have also claimed inciting others to boycott elections or cast blank ballots may violate the NSL.
Hong Kong law prohibits acts deemed to abuse or desecrate the PRC national flag or anthem. In September 2021, Hong Kong authorities amended the legislation to criminalize desecrating the national flag or anthem online, such as by posting an image of a “defiled” national flag on social media. During the covered period, at least three individuals were arrested for allegedly desecrating the flag or insulting the anthem.
In October 2021, LegCo passed a broad and vaguely drafted criminal film censorship law that empowers Hong Kong authorities to revoke a film’s license if “found to be contrary to national security interests.” Violators are subject to up to three years’ imprisonment.
Hong Kong authorities continued efforts to restrict the freedom of expression of individuals overseas under both the NSL and other legislation, including by issuing arrest warrants purely based on extraterritorial speech. There are reportedly NSL-related arrest warrants against 30 individuals residing outside Hong Kong, including U.S. citizens. Although reported in PRC state-controlled media, Hong Kong authorities have refused to acknowledge the existence of these warrants. In addition, the HKPF announced in December 2021 it had issued arrest warrants for at least seven Hong Kong pro-democracy activists and former elected officials now residing overseas for social media posts urging Hong Kong residents to boycott or cast blank ballots in the LegCo election that month.
Impact on Freedom of the Press
The Basic Law provides for freedom of the press, which is guaranteed under the Sino-British Joint Declaration, but PRC and Hong Kong authorities repeatedly violated this freedom by targeting independent media, resulting in unprecedented pressure on local independent media outlets in Hong Kong. In June 2021, HKPF National Security Department officers raided the offices of Apple Daily, an independent newspaper and online news platform; arrested seven executives, editors, and writers of Apple Daily and its parent company Next Digital and charged them with collusion with a foreign country or external elements under the NSL; and froze assets belonging to the company. Apple Daily subsequently ceased all operations.
In December 2021, police officers from the National Security Department arrested seven individuals associated with the pro-democracy online media outlet Stand News on suspicion of “conspiracy to print or distribute seditious materials” under the colonial-era sedition law. Police also raided the media outlet’s office, arrested staff members, seized journalistic materials, and froze its assets. Stand News subsequently announced it was ceasing operations and laying off its staff. Several other independent media outlets also announced their closure following the raid on Stand News, with some stating publicly that journalism had become too dangerous in Hong Kong. Citizen News closed in January 2022, for example, citing concerns over the safety of its staff.
PRC and Hong Kong officials, as well as PRC-controlled media, repeatedly criticized the Hong Kong Journalists Association during the covered period and accused the organization of potential NSL violations. In July 2021, the association released a report titled “Freedom in Tatters” outlining the erosion of press freedoms in Hong Kong. PRC officials also criticized the Foreign Correspondents’ Club in Hong Kong (FCC) on several occasions, including in November 2021 after the FCC published the results of a member survey showing that respondents believed the NSL caused Hong Kong’s media environment to change for the worse, and in December 2021 after the FCC released a statement expressing concern about the shuttering of Stand News.
During the covered period, pro-Beijing media and politicians accused government-owned public broadcaster RTHK of exercising little editorial oversight, being anti-police and anti-government, and thus violating the NSL. The Special Administrative Region (SAR) government subsequently forced out the managing director and replaced him with a pro-Beijing civil servant with no broadcasting experience. RTHK civil service employees were given a deadline to swear loyalty oaths, leading many to resign. Under its new management, RTHK also fired presenters, cancelled shows, and censored content based on political perspective.
Hong Kong authorities threatened foreign media outlets with legal consequences for the content of their editorials. In December 2021, a Hong Kong official sent a letter to the Wall Street Journal stating that “we reserve the right to take necessary action” against any incitement not to vote or to cast invalid votes, after the newspaper published an editorial criticizing the LegCo election. Hong Kong authorities also issued criticisms of other international outlets’ reporting and editorials, including The Economist, El Pais, La Libre, and the Sunday Times.
Hong Kong authorities have arrested and charged local reporters during the covered period for using publicly available governmental databases to investigate incidents during the 2019 protests. In addition, Hong Kong authorities implemented measures that limit public access to multiple public government databases, most notably the Hong Kong Companies Registry, including by requiring users accessing the Registry to disclose their names and identification numbers, and by restricting the information on company directors and addresses available in the Registry, with no exceptions available to journalists.
As noted in previous reports, the Department of State has no information indicating Hong Kong agents, persons, or entities were involved in the extrajudicial surveillance, abduction, detention, or forced confessions of certain booksellers and journalists.
Impact on Internet Freedoms
Hong Kong authorities did not generally disrupt open access to the Internet, but there were numerous reports that Hong Kong police, exercising powers granted by the NSL, required internet providers to block access to certain websites, including those associated with the pro-democracy movement and a museum on the 1989 Tiananmen Square massacre. Hong Kong authorities refused to confirm the reports. In June 2021, an Israel-based web hosting company briefly removed a website associated with the Hong Kong pro-democracy movement after Hong Kong police sent the company a letter claiming the website contained messages “likely to constitute offenses endangering national security.” The company subsequently reinstated the website.
Some activists claimed authorities monitored their email and internet use. Messages posted on Facebook, Telegram, and LIHKG.com (a local forum website) led to arrests under the NSL and the Public Order Ordinance, causing concern and self-censorship by individuals and organizations. Under the NSL, when investigating alleged offenses, they deem to threaten national security the National Security Department of the HKPF may require the person who published information or the relevant service provider to remove the content or otherwise provide assistance to the authorities. After the imposition of the NSL, major international social media firms and other technology companies announced they would no longer comply with requests from the HKPF for user information or to remove content.
Facebook, WhatsApp, and Twitter reported denying Hong Kong authorities’ user information and content takedown requests during the covered period. Google reported releasing data to Hong Kong authorities on three occasions during the covered period, once due to a credible threat to life and twice in connection with suspected trafficking in persons.
In October 2021, Hong Kong passed the Personal Data (Privacy) (Amendment) Ordinance 2021, criminalizing a broad definition of doxing, which observers fear could include anyone, including journalists, who criticize public officials online or in electronic communications. It also strengthened Hong Kong’s legal basis for demanding tech companies comply with user information and content takedown requests or potentially face criminal charges.
Impact on Freedom of Assembly
Hong Kong law provides for protection of freedom of assembly, but Hong Kong authorities violated this right during the covered period, especially for individuals and organizations associated with the pro-democracy movement. Under Hong Kong law, organizers of public meetings and demonstrations are required to apply for a “letter of no objection” from police, but the police did not issue any such letters to groups not affiliated with the PRC or Hong Kong governments during the covered period, effectively banning all protests. Authorities cited COVID-19 restrictions to refuse authorization for assemblies, although civil rights organizations said the intent of the denials was aimed at preventing political gatherings rather than promoting public health. In June 2021, for the second consecutive year, police refused to grant approval to an annual vigil to commemorate the victims of the 1989 Tiananmen Square massacre, citing COVID-19-related social distancing concerns.
During the covered period, Hong Kong authorities arrested and prosecuted activists and opposition politicians for allegedly organizing and taking part in unauthorized nonviolent demonstrations. For example, in April 2021, a Hong Kong court convicted veteran pro-democracy activists including Martin Lee, Margaret Ng, Jimmy Lai, and Lee Cheuk-yan of unauthorized assembly for their participation in a nonviolent August 2019 protest. Authorities arrested 33 people and filed charges against 30 during the covered period in connection with commemorations of the Tiananmen Square massacre in 2020 or 2021. In September 2021, seven pro-democracy activists were sentenced to up to 16 months in jail for their role in an “unauthorized assembly” at the height of the anti-government protests in 2019. Judge Amanda Woodcock told the District Court that while the city’s mini constitution “guarantees freedom of assembly, procession and demonstration,” those rights are “not absolute.”
Impact on Freedom of Association
PRC and Hong Kong authorities disregarded freedom of association as enshrined in the Basic Law and the International Covenant on Civil and Political Rights. PRC and Hong Kong authorities repeatedly used threats, investigations, arrests, asset freezes, and other actions to force the closure of groups they deemed a “national security” concern for their involvement in the pro-democracy movement. According to media reports more than 40 civil society organizations, labor unions, and political parties disbanded during the covered period. Many groups cited increasing legal risks following the imposition of the NSL.
In August 2021, the Hong Kong Professional Teachers’ Union, the city’s largest professional trade union with approximately 95,000 members, chose to dissolve after PRC-controlled media called the union a “poisonous tumor” to be eradicated and Hong Kong authorities announced they would cease working with the union and investigate possible legal violations. PRC-controlled media also accused the Professional Teachers’ Union of foreign collusion for its involvement in Education International, a global federation of teachers’ unions. In October 2021, the Hong Kong Confederation of Trade Unions, a confederation of more than 80 unions with more than 100,000 members, dissolved after PRC-controlled media outlets accused it of being a “foreign agent” in violation of the NSL due to its affiliation with the International Trade Union Confederation.
In September 2021, Hong Kong police charged the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, a pro-democracy group organizing annual vigils to commemorate the 1989 Tiananmen Square Massacre, and seven of its leaders with violating the NSL, and accused the group of being a “foreign agent.” Hong Kong authorities subsequently froze the group’s assets and ordered that the group be removed from Hong Kong’s Companies Registry.
Other groups that disbanded during the covered period included the Civil Human Rights Front, which previously organized large-scale annual nonviolent pro-democracy protests; the 612 Humanitarian Fund, which used crowdfunding methods to support emergency financial and legal assistance for persons injured or arrested during the 2019 pro-democracy protests; and the China Human Rights Lawyers Concern Group, which advocated for human rights lawyers and human rights defenders in mainland China. All faced public accusations of illegal activities from Hong Kong or PRC authorities or PRC-controlled media.
In October 2021, Amnesty International announced it would close its local and regional offices in Hong Kong by the end of 2021.
The group announced that the NSL “made it effectively impossible for human rights organizations in Hong Kong to work freely and without fear of serious reprisals from the government.”
Impact on Freedom of Movement
Hong Kong law provides for freedom of movement, including internal movement, foreign travel, emigration, and voluntary return, but during the covered period the government restricted enjoyment of this right for certain individuals. Hong Kong law enforcement continued to use a provision of the NSL to seize travel documents from democracy activists and opposition politicians arrested under the NSL, even without filing charges. Hong Kong prosecutors also asked courts to confiscate travel documents or enforce travel bans for activists, protesters, and politicians on bail while facing charges for crimes related to political activity and expression, including nonviolent participation in anti-government protests, under both the NSL and other statutes.
In June 2021 after the closure of Apple Daily, Hong Kong authorities arrested a senior editor at Hong Kong International Airport. This editor had not previously been charged, and credible media reports indicated Hong Kong authorities maintained an exit ban “watchlist” of residents who would be intercepted if they attempted to leave Hong Kong.
Hong Kong authorities enacted an immigration bill amendment that went into effect in August 2021. The legal sector, NGOs, and refugee advocates expressed concern that the amendment empowered Hong Kong authorities to bar anyone, without a court order, from entering or leaving Hong Kong.
Impact on Education and Academic Freedom
During the covered period, Hong Kong authorities, under direction from the PRC, took repeated steps to restrict political expression in schools and universities and to threaten or penalize teachers and academics who expressed dissenting opinions.
The NSL requires Hong Kong authorities to promote “national security education” in schools and universities. During the covered period, the Hong Kong Education Bureau began implementing a national security education curriculum at all grade levels in government-funded schools, as well as, to a lesser extent, in international and private schools, based on guidelines issued in February 2021. The Education Bureau also instructed schools to prevent and suppress any curriculum and activities that are in breach of the NSL, the Basic Law, or other Hong Kong law. Under the guidelines, schools are required to limit political expression and activities on school campuses and to support periodic reports regarding their implementation of “national security education.”
In October 2021, the Education Bureau released guidelines requiring all government-funded schools to hold weekly flag-raising ceremonies.
Hong Kong and PRC officials, as well as PRC-controlled media, repeatedly accused Hong Kong teachers of failing to provide “patriotic education” to their students, which they claimed was a root cause of the 2019 pro-democracy movement. PRC-controlled media accused the Hong Kong Professional Teachers’ Union of disseminating “poisonous thoughts” into schools and urged Hong Kong law enforcement to investigate the union, even after the group announced it would disband. Hong Kong authorities continued to encourage teachers to avoid voicing political opinions, including on social media. There were reports that university professors were denied tenure, promotions, or contact renewals because of their political opinions or expressions.
In July 2021, police raided the office of the student union at the University of Hong Kong after the union’s council passed a motion expressing “sadness” at the death of an individual who attacked a police officer on the July 1 anniversary of Hong Kong’s handover to PRC sovereignty. The union later apologized and retracted the motion. Under pressure from Hong Kong authorities, university leadership barred the students who attended the council meeting from campus and severed ties with the student union. In August 2021, police arrested four members of the student union on suspicion of “advocating terrorism” under the NSL.
Impact on Freedom of Religion or Belief
Hong Kong authorities generally respected freedom of religion or belief. During the covered period, most religious leaders and advocates stated the NSL did not negatively impact religious practitioners’ ability to worship in line with their religious norms and without government interference. However, groups continued to express concern about self-censorship and potential PRC targeting of civil society organizations or individuals affiliated with religious groups that were active in the 2019 pro-democracy movement. There were reports that several religious leaders who had criticized the NSL or supported the pro-democracy movement relocated abroad out of fear of retaliation from Hong Kong authorities. Authorities curtailed activities of Falun Gong practitioners during the covered period, including banning their street kiosks for allegedly violating COVID-19 protocols. In July 2021, several members of LegCo urged the Hong Kong government to outlaw the Falun Dafa Association under the NSL.
Disinformation/Political Influence Activities
Media organizations owned directly or indirectly by the PRC are actively conducting disinformation activities in Hong Kong.
The main thrust of the disinformation is aimed at painting “foreign forces” as fomenters of unrest in Hong Kong and deflecting attention away from the demands of people in Hong Kong and their criticism of the PRC or Hong Kong governments. Additionally, mainland China-based actors have resorted to coercive measures including doxing and malicious cyber activities, to intimidate Hongkongers and silence pro-democracy speech online. In September 2021, the Wikimedia Foundation announced that, in an “unprecedented” move, it had banned seven Wikipedia users and stripped an additional twelve users of administrator privileges after media reports revealed a group of mainland China-based editors had been removing content contributed by Hong Kong residents, rewriting articles about Hong Kong from a pro-Beijing perspective, and threatening to dox pro-democracy Hong Kong editors. In November 2021, Google’s Threat Analysis Group published evidence that a “likely state-backed” actor used a watering hole cyber method against a Hong Kong media outlet and a prominent pro-democracy labor and political group.
Impact on U.S.-Hong Kong Exchanges
U.S. institutions typically conduct a wide range of academic, cultural, educational, and scientific exchanges with Hong Kong counterparts, but the COVID-19 pandemic halted most international programs on Hong Kong campuses as well as all ECA-funded exchange programs with Hong Kong. Executive Order 13936 on Hong Kong Normalization (E.O. 13936) resulted in the termination of the Hong Kong Fulbright program in July 2020.
Impact on U.S. Citizens
In 2021, an estimated 85,000 U.S. citizens lived in Hong Kong. However, that number is now estimated to be approximately 70,000, as many have departed – temporarily or permanently – due to COVID-19 mitigation policies and other factors. Non-residents were not generally permitted to visit Hong Kong in 2021 due to COVID-19 travel restrictions, with few exceptions. Since the imposition of the NSL in June 2020, the PRC increasingly exercised police and security power in Hong Kong, subjecting U.S. citizens who are publicly critical of the PRC to a heightened risk of arrest, detention, expulsion, or prosecution in Hong Kong. In January 2021, the HKPF arrested a U.S. citizen under the NSL.
U.S.-Hong Kong Cooperation and Agreements
The United States and Hong Kong continue to maintain several bilateral agreements regarding issues such as taxation, parcel delivery, and air transportation services.
During the covered period, due to Hong Kong authorities’ 2020 notification of their purported suspension of an agreement concerning mutual legal assistance in criminal affairs, the U.S. government made official requests for mutual legal assistance under the UN Convention against Transnational Organized Crime and UN Convention against Corruption with limited success. U.S. law enforcement had no engagement with the HKPF National Security Department, but U.S. law enforcement agencies continued to cooperate with other Hong Kong law enforcement counterparts to counter trafficking in persons, trade fraud, wildlife trafficking, child exploitation, drug trafficking, IPR theft, financial crimes, money laundering, and international terrorism.
The United States communicated regularly with Hong Kong authorities through demarches and notifications on issues involving sanctions implementation, including actions taken by the Department of the Treasury against several Hong Kong-registered entities under sanctions authorities related to China and counterterrorism.
Actions Taken by the U.S. Government
During the covered period, the U.S. government imposed financial sanctions on seven PRC officials under E.O. 13936 in connection with actions or policies that threaten the peace, security, stability, or autonomy of Hong Kong. Under Section 7 of the E.O., those designated for financial sanctions and their immediate family members are also subject to visa restrictions. In March and December of 2021, the Department of State submitted reports under the Hong Kong Autonomy Act (HKAA) identifying 29 officials also sanctioned under E.O. 13936 who have materially contributed to the failure of the PRC to meet its obligations under the Sino-British Joint Declaration and Basic Law, as this is defined by the HKAA. In July 2021, the Department of State, along with the Department of the Treasury, the Department of Commerce, and the Department of Homeland Security, issued a business advisory regarding emerging risks to their operations and activities in Hong Kong, including those stemming from the implementation of the NSL and other legislative changes. In August 2021, in response to the significant erosion of rights and freedoms in Hong Kong, President Biden directed the deferral of removal of certain Hong Kong residents who are present in the United States.
At various times during the covered period, in response to PRC and Hong Kong authorities’ actions, the United States issued statements, often with likeminded partners, raising concerns and calling for those authorities to respect Hong Kong’s promised high degree of autonomy.
Areas of Remaining Autonomy
On March 5, 2022 PRC Premier Li Keqiang asserted that Beijing intends to exercise “overall jurisdiction over the two SARs,” referring to Hong Kong and Macau. Li’s remarks accompanied the first ever mention in the PRC’s Central Government Report of policies that would ensure the governance of Hong Kong by the PRC and allow only “patriots” to serve in positions of authority in the territory. Although Hong Kong’s economic and financial systems remain distinct in many respects from mainland China’s, the differences have narrowed, and business and rule of law risks that were formerly limited to mainland China are now increasingly a concern in Hong Kong. It is in the political sphere where the differences between Hong Kong and mainland China have narrowed the most. Over the reporting period, space for civil society in Hong Kong also contracted.
Hong Kong continued to exercise authority in the implementation of commercial agreements and practiced free and open trade, with negligible tariff or non-tariff barriers. The Hong Kong legal system continued to be based on common-law traditions. The imposition of the NSL and pressure from the PRC did, however, raise serious concerns about the judicial system’s continued independence. Property rights were well-protected in law and practice. Hong Kong maintained its own currency, pegged to the U.S. dollar. The Hong Kong Monetary Authority set monetary policy autonomously from the People’s Bank of China.
Hong Kong sets its own data regulations and does not have any broad data localization requirements. Under mainland China’s cross-border data transfer requirements, Hong Kong is considered outside of China and is treated the same as foreign jurisdictions.
Draft Regulations on the Administration of Network Data Security published by the PRC Cyberspace Administration of China (CAC) would require PRC companies that handle the personal information of more than 1 million individuals to submit to a CAC network review before seeking public listings on foreign stock exchanges. The draft regulations appear to exempt listings in Hong Kong from this requirement, but the draft includes an ambiguous reference to national security concerns for listing.
In August 2021, despite intense media speculation, the PRC National People’s Congress did not vote to impose the PRC Anti-Foreign Sanctions Law to Hong Kong, which could have exposed firms in Hong Kong to criminal and civil penalties for complying with foreign sanctions requirements.
The debate over whether to apply this law raised questions about the extent to which Hong Kong’s legal and regulatory environment might be harmonized with that of the mainland, which would considerably undermine the Hong Kong investment climate while significantly elevating political and legal risk faced by firms operating in that jurisdiction.
Hong Kong appears to have wide latitude in setting policies on climate and green finance. It has its own carbon neutrality goal of 2050 and aims to eliminate the use of coal for daily electricity generation by 2035, both significantly more ambitious than mainland China’s climate goals, and Hong Kong authorities have released a detailed plan for achieving these goals. In green finance, Hong Kong has set stricter climate disclosure requirements, aligned with international best practices, than mainland China.
Hong Kong continues to vote separately from mainland China in a number of international organizations and multilateral entities, including the Financial Action Task Force, the Asia-Pacific Economic Cooperation forum, the International Olympic Committee, and the World Trade Organization, and participates autonomously in various green finance multilateral fora. The extent to which PRC authorities influence Hong Kong votes and actions is unclear. In some organizations, there were reports Hong Kong’s representatives acted on behalf of PRC authorities to advance PRC political objectives, including by preventing Taiwan from participating meaningfully in the WTO, in which it is a member, and from assuming leadership positions, indicating that Hong Kong’s ability to participate autonomously in these organizations may be eroding.
Since December 23, 2020, the Commerce Department’s Bureau of Industry (BIS) has reviewed transactions involving Hong Kong under the same export control policy as any other Chinese destination. Also in December 2020, BIS created and published the “Military End User List.” Three Hong Kong companies are listed as “military end users” for their known support of foreign militaries, one of them notably being the Hong Kong Government Flying Service, for its support of the PRC People’s Liberation Army. As a result, a BIS license is required for certain exports, reexports, and in-country transfers when a party has knowledge that a military end user is a party to the transaction (e.g., as purchaser, intermediate consignee, ultimate consignee, or end user).
Hong Kong Policy Act Findings
In July 2020, then-President Trump issued E.O. 13936, which addressed the suspension of the application of Section 201(a) of the Hong Kong Policy Act to certain U.S. laws. E.O. 13936 remains in effect. There were no terminations under section 202(d) or determinations under section 201(b) of the Act during the covered period.