25 March 2019
Lawmaker Cheng Chung-tai is charged with desecrating the national and SAR flags at the Legislative Council last October. Photo: TVB
Lawmaker Cheng Chung-tai is charged with desecrating the national and SAR flags at the Legislative Council last October. Photo: TVB

Who is really desecrating the flag?

Since the establishment of the Hong Kong Special Administrative Region on July 1, 1997, the national flag of the People’s Republic of China has been flying proudly in the city, a symbol of Beijing’s sovereignty over the territory after more than 150 years of British colonial rule.

The flag should remind Hong Kong people of their national identity as Chinese, but it shouldn’t be used by Beijing loyalists as a tool to attack the opposition.

On Tuesday, Civic Passion lawmaker Cheng Chung-tai was formally arrested by the police and charged with desecrating the national and SAR flags.

The case pertains to an incident at the Legislative Council last October when Cheng turned several small flags upside down as an act of protest against his pro-Beijing colleagues.

Cheng, who represents the New Territories geographical constituency, was arrested by no less than 14 police officers in Kowloon on Tuesday night while he was on his way to an online radio station to host a program.

He was then taken to the Cheung Sha Wan police station to complete the arrest procedure. Cheng criticized the police for lacking respect in dealing with him as a lawmaker.

He said the arresting officers apparently took a hostile attitude toward him, when compared with the arrangements for the arrest of pan-democrat lawmakers involved in the 2014 Occupy Movement.

Cheng’s arrest itself was controversial since the incident that prompted it took place at Legco and not in public.

Legco had also formed a committee to investigate Cheng’s alleged misbehavior, following a motion by pro-establishment lawmaker Paul Tse Wai-chun, who said Cheng’s action constituted mischief.

Cheng may lose his Legco seat if he is censured for misbehavior or breach of oath by a vote of two-thirds of the legislators present upon completion of the probe.

As to the charge filed by the police, Cheng, if he is found guilty by the court, could face a jail sentence of one month or more and lose his Legco seat as well.

Cheng stressed that a lawmaker cannot be punished for words and actions during council meetings because of parliamentary protection under Legco’s Powers and Privileges Ordinance.

It seems the Beijing camp is intent on attacking enemies at Legco, including Cheng, who has been labeled as a radical and pro-independence localist.

According to some legal experts, it could be quite difficult to prove in court that Cheng had desecrated the Chinese and SAR flags. He had only turned the flags upside down without any insult or action to disrespect them.

The law that may be invoked in the case is the National Flag and National Emblem Ordinance, particularly the section called “Protection of national flag and national emblem”.

It says “a person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for three years”.

The law does not have any provision that considers it an offense to turn the flag upside down.

On the other hand, the question arises: Might Beijing loyalists have committed an offense when they threw the national and SAR flags into rubbish bins after attending a demonstration to show their support to the authorities?

Some legal professionals also said arguments could be made on whether or not it was improper for the pro-Beijing lawmakers to put the flags on their desks.

According to established rules and protocols, there are specific ways to display the national and SAR flags. Inside a building, for example, the national flag should be on the left side while the SAR flag should be on the right side.

With only a couple of months left in office, the Leung Chun-ying administration is pursuing its crackdown on localists who had won in the Legco elections last year, citing all sorts of offenses and violations to kick them out of the government.

Sixtus “Baggio” Leung Chung-hang and Yau Wai-ching were the first to suffer this political vendetta as they were ousted for their improper oath-taking.

Nathan Law, Lau Siu Lai, Edward Yiu and Leung Kwok-hung are also facing similar cases. Late last month Tanya Chan and Shiu Ka-chun were charged with committing public nuisance for kicking off the Occupy protests in September 2014.

Together with Cheng, there are seven lawmakers from the opposition camp who may lose their seats as the government stepped up its campaign against the opposition.

From Beijing’s perspective, Cheng’s action was an insult not only to China’s sovereignty but also to the Communist Party and its top leaders.

But for many people, it was just a naive, spur-of-the-moment act by a young legislator who found it hard to tolerate the “patriotic” antics of his pro-Beijing colleagues.

What is truly a desecration of the national flag is when it is used by the establishment camp as a weapon against the opposition, as a tool to widen divisions in society, instead of a symbol to unite us all.

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EJ Insight writer

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