Editor’s note: The following are the opening remarks of Grenville Cross SC at a legal forum sponsored by LAWYERS HONG KONG on Dec 10, 2021
I am very grateful to have been invited by Lawyers HK to speak to you today, and I thank them for their initiative in arranging this legal forum.
It is almost exactly two years since I first addressed Lawyers HK, on November 26 2019, and much water has passed under the bridge since then. On that occasion, I spoke about the social unrest and upholding the rule of law, and, while the disorder has long since subsided, the task of upholding the rule of law remains as important as ever. In 2019, I spoke to you about the five demands of the protest movement, which, with one exception, concerning the surrender of fugitive offenders to other jurisdictions around the world, came to nothing, and for good reason.
SETTING THE SCENE
As was clear from the outset, the protest movement’s demands were a direct threat to the rule of law. Had they been accepted, they would have imperiled the legal order and weakened the police force at the very time it was protecting the city. The demand that those protesters who had committed criminal offences, no matter how grave, should be given an amnesty, was an affront to their victims and contemptuous of criminal justice, and no self-respecting government could possibly have acceded to it. The call for a commission of inquiry into alleged police brutality was never genuine, and its proponents saw it as part of their campaign, along with doxxing of officers, attacks on married quarters and intimidation of children, to undermine police morale at a critical time. As for the demand that the riots be re-classified as non-riots, this was always the stuff of fantasy, and numerous rioters are now receiving their just deserts at court. Although the protesters also demanded universal suffrage, their own actions ensured that this could not happen anytime soon, as Beijing’s trust was forfeited. Fortunately, however, the Basic Law’s commitment to universal suffrage as the “ultimate aim” for choosing both the Chief Executive and the Legislative Council has survived their depredations, although they have significantly delayed the process.
It is now 18 months since the National Security Law for Hong Kong (“NSL”) was enacted on June 30 2020, and the era of lawlessness is at an end. It has been succeeded by a values-based society, that prioritizes decency, pride, respect and the rule of law. Excellent progress has been made towards restoring peace and stability, and the city is focused on its priorities. Whereas, in the past, all too many young people were obsessed with their own rights at the expense of everybody else’s, they are now beginning to realize that they also have responsibilities. There are obligations to the community, to the city and to the country, and the days when people thought they could do whatever they wanted, even if it meant trampling on the interests of others, are well and truly over. Of course, it is still early days, but our education system is now providing students with balanced instruction, our civic organizations are recognizing their national obligations, and the various entities that aligned themselves with foreign forces and took their cash have either reformed themselves or closed down, and a far healthier society is now emerging. There are, however, still items of unfinished business, as I will shortly explain.
Since the NSL restored stability to Hong Kong, the police force has been able to return to its core functions, which include patrolling the streets and safeguarding citizens, conducting investigations into the generalized crimes which blight the lives of ordinary people, and clamping down on the commercial frauds that endanger the city’s financial status. In consequence, Hong Kong is resuming its position as one of Asia’s safest cities, as one of the most reliable cities in which to do business in the Asia-Pacific Region, and as the place to be for those wishing to take advantage of the huge opportunities now beckoning on the Chinese mainland. This is why investment sentiment has improved so significantly, with, for example, the funds raised through initial public offerings in Hong Kong exceeding HK$500 billion in the year immediately following the enactment of the NSL, an increase of 50% over the 12 previous months, and the average daily turnover of Hong Kong stocks rocketing to over HK$160 billion in the same period, nearly 70% higher than previously. This, I believe, is profoundly comforting for everybody who cares for the place we all call home, and who hopes for its future prosperity.
And, whereas the National Security Law has met the city’s immediate security needs, the proposed implementation of the outstanding parts of the Basic Law’s Article 23 national security package will, hopefully, complete the cycle in 2022. We should also not overlook the significance of the enactment last October of the anti-doxxing law, as this has struck a blow at the cyber bullying and harassment that was so common during the social unrest. This is yet another clear sign of the protections being put in place by the government to uphold the rights of the law-abiding community.
While, however, the consequences of the insurrection will inevitably be with us for some time, the legal processes are taking their course. Those people who, often egged on by foreign forces, thought they could burn, desecrate, destroy, maim and riot at will, are now receiving a rude awakening. They are not above the law, and our dedicated law enforcers and prosecutors, through meticulous preparation, are gradually bringing them to account. Although some judicial officers initially extended undue leniency to those involved in protest-related criminality, the appeal courts have since made it clear that, even for young offenders, condign punishments which prioritize deterrence are invariably appropriate for anybody involved in serious protest-related criminality, which is the correct message. After all, politically motivated violence is at least as serious as other types of violence, and sometimes more so, as where it deliberately challenges the legal system and threatens the survival of the “one country, two systems” policy.
NATIONAL SECURITY LAW: IMPACT ON CRIME AND SECURITY
When I addressed you in 2019, I said that I hoped the day of reckoning was fast approaching for those who brought mayhem to our streets, and so it has proved. This has been due not only to the professionalism of the police force, which displayed exemplary courage at a critical time, but also to the NSL which has equipped law enforcers with the tools they need to combat all types of criminality, and the trends are instructive.
Indeed, the latest crime statistics are encouraging, and they show that, in a direct comparison between the first 6 months of 2021 and the second six months of 2019, when the insurrection was at its height, overall crime decreased by nearly 10% (from 34, 007 cases to 30,871). In particular, public order offences decreased by over 90% (from 942 cases to 28), arson cases decreased by nearly 80% (from 772 to 159) and criminal damage cases decreased by about 40% (from 5,066 to 3,027). In other words, the city is again becoming a safe place in which to live and work.
Quite clearly, moreover, justice is closing in on some, at least, of those responsible for the disorder, although it is inevitably taking time. Whereas, as of October 31 2021, the police force had arrested 10, 270 people (7, 531 males and 2, 739 females) for protest-related crimes committed since June 9 2019, there had been 2, 740 people prosecuted. As long as the culprits are ultimately held to account, people should not fret unduly over the delays in prosecuting the suspects.
As regards national security, in relation to which, under the NSL, dedicated police and prosecution divisions have been created, there had, as of November 11 2021, been 155 people (121 males and 34 females) arrested for committing acts and engaging in activities that endanger national security. Of these, 100 people were charged, together with 4 companies suspected of violating the NSL. These, of course, are remarkably low figures, given the magnitude of the problem, and what they tell us, is, firstly, that the NSL is a precision instrument that is being applied with a light hand in a targeted way, and, secondly, that its impact has been salutary, with many of those responsible for the lawlessness of 2019-20 having either pulled themselves together, emigrated or simply fled.
THREATS TO JUDICIARY
These healthy trends, however, are not only attributable to the efforts of police and prosecutors and the NSL, but also to the judiciary, which has stood firm in the face of various threats and continued to uphold the rule of law. From the outset of the disruption, the protest movement and its armed wing, and their foreign facilitators, realized that one of the biggest obstacles they faced was our highly professional judiciary. They knew that, if their plan to ruin the city and bring the government to its knees was to succeed, the judiciary had, at the very least, to be neutralized, and this was attempted in various ways, both abroad and locally. Abroad, attempts were made to deprive the judiciary of some of its most eminent judges in the Court of Final Appeal, as this would obviously weaken its capacity to deliver justice.
There are currently 12 non-permanent judges from other common law jurisdictions serving in the CFA, drawn from Australia, Canada, and the United Kingdom, and they are making a profound contribution to our jurisprudence. By safeguarding our legal system, they help to maintain legal norms, and this makes it very difficult for anti-China forces around the world to claim, as they love doing, that the NSL has killed the rule of law. Indeed, by their very presence, the message has gone out that Hong Kong’s judiciary is as vibrant as ever, that the common law continues to flourish, that there is still a level playing field, that the rights of criminal suspects are secure, and that everybody who is prosecuted will receive a fair trial. This, of course, is why those antithetical to Hong Kong are so keen to have the overseas judges withdrawn, and their presence at the apex of the legal system gives the lie to the myth making of those who wish the city ill.
The reason why the overseas judges have refused to be pressurized can be readily ascertained, and courage will also have played a part. They understand how well the legal system works in Hong Kong, and they have stood their ground, which is what judicial independence is all about. Indeed, five of them have taken up new 3-year terms of appointment in 2021, which is a vote of confidence in the city. In light, therefore, of the failure of the international campaign to weaken the judiciary, hostile forces in the city itself are now concentrating on threats to judicial officers here on the front line. Once they realized that their arson attacks on court buildings were not having the desired effect, they switched to threatening particular individuals. Although this started in 2019, it has gained momentum this year, as increasing numbers of insurrectionists face justice. In 2021, the threats to the judiciary have taken various forms, including death threats, bomb threats, and threats of injury, sometimes also directed at family members, with corrosive and other substances even being sent to the courts. However, like the overseas judges, the local judges have refused to buckle, and the rule of law remains intact, but nobody can be complacent.
The police force, of course, is doing its level best to apprehend the culprits, and, in July, it foiled a plan by suspected secessionists from “Returning Valiant” to bomb both Eastern Court and Tuen Mun Court. On Nov 24, and again on Dec 8, the judiciary itself announced extra security measures, including enhanced examination of postal items and heightened vetting procedures for visitors. And, once suspects are apprehended, it will be for the Department of Justice to select the most appropriate charges, which may include attempting to pervert the course of public justice, criminal intimidation, subversion and terrorist activity. After convictions are obtained, the sentences imposed on offenders will need to prioritize the classical sentencing principles of deterrence and retribution, as the protection of the rule of law must be the paramount objective.
Quite clearly, despite their ordeal, the judicial officers have shown great bravery, like their overseas counterparts, and not allowed themselves to be bullied. They have remained true to their judicial oath, which requires them to “safeguard the law and advance justice without fear or favor, deceit or self-interest”. They have also remained fiercely independent in the manner contemplated by the Basic Law, which provides that the courts “shall exercise judicial power independently, free from any interference” (Article 85). They do, however, still need every support, and anybody who threatens the judiciary has declared war on society and can expect no mercy. Just as it has always been, the rule of law is Hong Kong’s foundation stone, and anybody who threatens it must face the full force of the law.
UNFINISHED BUSINESS (1): PROTECTION OF JUDICIARY
However, somebody who criminally intimidates a judge only faces a maximum sentence of 2 years’ imprisonment and a fine of HK$2,000 on summary conviction, and 5 years’ imprisonment on indictment, which is woefully inadequate. As the threats to the judiciary are clearly of an ongoing nature, and there are still numerous protest-related and national security cases in the pipeline, the judiciary must be given extra protections by the criminal law, and this is the first item of unfinished business. As, moreover, threats to public prosecutors and police officers are equally reprehensible, I suggest that they should also enjoy the same protections as judges, and this can be readily achieved.
In 2008, because of the grave concerns caused by attempts to pervert the course of public justice, the maximum penalty for the offence was increased from 7 years’ imprisonment to imprisonment for any term and a fine of any amount. This affords a useful precedent, and what I propose today, therefore, is a new sentencing regime for the offence of criminal intimidation, whereby the maximum penalty is raised from 5 years’ imprisonment to imprisonment for any term and a fine of any amount. After all, there is no logical reason why somebody who criminally intimidates a judge should be treated differently from somebody who attempts to pervert the course of public justice by interfering with a judge, and the proposal, I suggest, is inherently reasonable, and easy to implement.
If, however, for whatever reason, this amendment is not considered viable, there is an alternative. If, as most sensible people agree, far more needs to be done to provide better protections, a new offence of threatening a judicial officer, a public lawyer or a law enforcement official should be created. This would highlight the situation of the three categories most at risk, and send the hostile elements an unequivocal, tailor-made message, that criminal justice has them firmly in its sights. Again, this offence would require to be fortified by penalties with real teeth, and here also I have in mind a maximum sentence of imprisonment of any length and an unlimited fine. If we are to retain a world-class judiciary in Hong Kong and a first-rate legal system, everything possible must be done to protect those who man them from political fanatics and other criminal elements, and the proposal should not be controversial.
UNFINISHED BUSINESS (2): ENDING ABUSE ON PUBLIC OFFICERS
I have said a lot about protecting the judiciary, but I also wish to say a little more about protecting public officers more generally, and, in particular, the police force. During the insurrection, police officers regularly had to confront the vilest of insults and abuse, much of it intended to provoke them into over-reacting, thus providing footage for the foreign media to broadcast globally. Of course, under the Basic Law, everybody enjoys freedom of speech, and it is no light matter to curb it. But, as the ICCPR itself recognizes, necessary restrictions, lawfully enacted, are legitimate. Such situations arise if a curb is required to ensure respect of the rights or reputations of others, the protection of national security or the maintenance of public order.
I believe that police officers, who expect a certain amount of rough and tumble when they don their uniforms and patrol the streets, do not forfeit all of their own personal rights when engaged in public policing. There can be no absolute right to abuse, insult or demean a police officer on duty, particularly when this might cause a breach of the peace and endanger public order. Once trouble makers start throwing abuse around there is, as we saw in 2019, a real possibility that tensions will escalate, thereby impacting adversely on effective law enforcement activities. Over the years, there has been sporadic talk about specifically criminalizing obnoxious conduct of this type, and it is surely time to provide police officers, as well as other law enforcement agents, with the protections they need from vile abuse when discharging their public responsibilities, and this is the second item of unfinished business.
As to how this might be achieved, we need look no further than Singapore, where the Protection Against Harassment Act (2014) makes it an offence to insult a public officer, including a police officer (Sect.6). The prohibited conduct embraces “indecent, threatening, abusive or insulting” words, behavior or communication “in relation to the execution of duty” of public officers. The offence is punishable with one year’s imprisonment and a fine.
In France, moreover, there is a law that prohibits contempt of public officers. It is designed to protect public officers acting in the execution of their duty from insults, including police officers, customs officers and prison officers. The contempt can take the form of words, gestures, writings or images, it should be directedly addressed to the victim, it must be intended to infringe the dignity of, or respect for, the victim, and the offence needs to have occurred because of the victim’s public functions. On conviction, an offender faces a year’s imprisonment and a fine, which rises to 2 years’ imprisonment if the offence is committed by a group.
In 2017, three Legislative Councilors (Priscilla Leung, Junius Ho and Horace Cheung) proposed an amendment to the Public Order Ordinance to criminalize insults to law enforcement officers. They envisaged a prohibition on any abusive or insulting words, behavior or slogans towards law enforcement officers, acting in the course of their duty. The maximum sentence suggested was 3 years’ imprisonment and a fine of $2,000. Although this proposal did not progress, events thereafter have shown just how necessary a law of this type is, and the case for criminalizing conduct of this type is, I suggest, overwhelming.
Indeed, it is, not widely known that certain public officers already enjoy protection from abuse, and this has not, apparently, been problematic. Under the Public Health Ordinance (Sect.139), the Births and Registrations Ordinance (Sect.21), and the Food Safety Ordinance (Sect.54), it is an offence to use abusive language towards the relevant public officers, with sentences ranging from HK$25,000 to 6 months’ imprisonment. It is, of course, already an offence, punishable with 2 years’ imprisonment, to assault, obstruct or resist a police officer acting in the execution of his duty, and it would also be a small step to include abuse in the categories of prohibited conduct.
UNFINISHED BUSINESS (3): PROTECTION FROM FAKE NEWS
I now turn to fake news, a type of propaganda, as this is the third item of unfinished business. Throughout the insurrection, fake news was a powerful tool in the hands of those seeking to harm the city and alarm its people. In particular, false reports of wrongdoings by the police force appeared almost daily on the internet, and some journalists, instead of giving them a wide berth, eagerly provided them with oxygen. Malicious reports, designed to weaken morale at the very time police officers were trying to protect the city, were constantly aired, including by RTHK. When challenged, media representatives, oblivious to the harm they were doing, talked about “freedom of the press” and “balanced pictures”, but never about public responsibility. It was almost as if the allegations of the protest movement, however ludicrous, were sacrosanct, and had to be placed in the public domain, regardless of the consequences.
After, for example, the protest movement claimed that police officers had killed protesters at an MTR station, raped women in custody, tortured suspects, drowned a student protester, and blinded an activist, these and other fallacies were eagerly recycled by the media. Although the claims were spurious, they delighted the foreign media, and were seized upon by everybody in the West who wanted to undermine the police force and malign the government. On the streets, the fallacies were used to whip up anti-police feeling, thereby fueling further black-clad violence, and 600 police officers were assaulted during the riots, including the officers who were doused in corrosive liquid, ignited when hit by petrol bombs, and knifed when going off duty. Fake news was deliberately used to stimulate hatred of the police force, and this often made it harder for it to enforce the law, which was the intention of the culprits.
I suggest that no responsible society can tolerate the dissemination of falsehoods that cause hatred of the authorities, divide society, and promote criminal objectives. Of course, under the NSL, the city is required, under Article 9, to “take all necessary measures to strengthen…guidance, supervision and regulation over matters concerning national security, including those relating to…the media, and the internet”, but, even without this, the need for legislation to control fake news is blindingly obvious. And let nobody ever forget, Hong Kong had a very narrow escape in 2019 and the “one country, two systems” policy was almost destroyed, with fake news having played a significant part. As we have already seen in relation to the abuse of police officers, the right of freedom of expression, whether oral or written, is not absolute, and restrictions may, by law, be imposed “for the protection of national security or public order”. Quite clearly, therefore, there are red lines that should not be crossed, and people who are concerned about freedom of expression need to understand that the best way of protecting it is by using it responsibly.
In determining the way forward, Singapore, which enacted its own fake news law in 2019, entitled the Protection from Online Falsehoods and Manipulation Act (“POFMA”), provides a useful guide. Although it only applies to “electronic communications”, lessons can be learned from it. When it was introduced to Parliament, the government explained that its aim was to protect society from deliberate online falsehoods created by malicious actors, and this would be done by targeting their fallacies, and not by going after opinions, criticisms, satire or parody. It was pointed out that fake news, if not debunked, can have serious consequences, including public panic, the waste of resources, and damage to the reputations of people and businesses. Fake news, moreover, could be used by foreign agencies to cause destabilization, something Hong Kong knows all about. This is why POFMA stipulates that false statements cannot be transmitted either through the internet to users in Singapore, or else through systems that “enable the transmission through a mobile network” of text and multimedia messages.
The Singaporean government was also at pains to point out that POFMA was not directed at free speech per se, but at tackling “falsehoods, bots, trolls, and fake accounts”. Since 2019, it has not been used to target opinions, but only falsehoods that are, or could be, damaging. It has sought to protect citizens from fake news, and online platforms that post false statements can be ordered not only to remove them, but also to post corrections. On May 20 2021, for example, POFMA was invoked to direct Twitter and Facebook to publish a notification with a correction notice to “all end-users in Singapore” regarding falsehoods about a “Singapore Variant of Covid-19”.
Quite clearly, any jurisdiction seeking to tackle fake news must first define it. Under POFMA, this is achieved by providing, firstly, that a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact, and, secondly, that a statement is false if it is “false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears”. This, I suggest, is a good working definition, and anybody in doubt over the veracity of a particular news item should obviously refrain from posting it until it has been checked out.
However, making a false statement is not, of itself, an offence under POFMA. To be prosecutable, prosecutors must show that a suspect has communicated a statement in Singapore which he or she knew, or had reason to believe, was a false statement of fact, and that its communication was likely to be prejudicial to the country’s security, or to be prejudicial to public health, public safety, public tranquility or public finances, or to be prejudicial to Singapore’s friendly relations with other countries, or to influence elections, or to incite feelings of enmity, hatred or ill-will between different people, or to diminish public confidence in the institutions of government. In other words, there must be malign consequences associated with the communication of the fake news, and this is a significant safeguard.
Although POFMA has been criticized as draconian, Singapore’s government responds that strict laws are necessary as fake news can incite racial and religious disharmony, and it has to be able to act swiftly to halt the viral spread of falsehoods. Although like considerations apply in Hong Kong, the principal areas of concern here involve the use of falsehoods to spread social disharmony, hatred of the authorities and animosity towards the country, and the Singaporean model is very helpful for policy makers, save in one respect. It only applies to electronic communications, which can cover anything from social media to news websites, but does not include print media, and this will need reviewing once work gets underway on the legislative drafting.
UNFINISHED BUSINESS (4): PROTECTION OF MAINLAND CHINESE
I now turn to the situation of mainland Chinese in Hong Kong, as this is the fourth item of unfinished business. When the Race Discrimination Ordinance (Cap 602), was enacted in 2008, the view was taken that it should not cover people from elsewhere in China, as they were of the same ethnic group as local Chinese. When, so it was said, they faced discrimination it was for social reasons, not racial. This created a lacuna in the legal protections available, and the Equal Opportunities Commission revealed in October that it had received numerous complaints of discrimination against people in this category in recent years. Indeed, a recent survey showed that nearly 3 in 5 adult mainland immigrants and 1 in 3 children complained of everyday prejudice, and for some this has continued no matter how long they have lived here. This type of discrimination is, I believe, fed by three factors, firstly, antipathy towards the central authorities, secondly, feelings of arrogance, and, thirdly, a fear of competition from outsiders, each of which is equally poisonous.
Both before and during the insurrection, there were those, often calling themselves “localists” or variants thereof, who whipped up hatred of people from other parts of the country, and this took various forms. An early example arose in 2014, when over 100 so-called “nativists” harassed shoppers in Tsim Sha Tsui, screaming “locusts” at them. Thereafter, mainland people, regardless of whether they were Hong Kong residents or visitors, were routinely abused and ostracized, notably in the New Territories. Whereas, during the social disorder, mainland students had to be evacuated for their own safety from the universities and “yellow economy” eateries refused to serve Putonghua-speakers, even MTR commuters had to conceal their accents for fear of reprisals. It was an unimaginable low for Hong Kong, a place that has always prided itself on its courtesy and internationalism, and the culprits represented the very worst side of this great city. Although not now so vociferous, they are still out there, or at least some of them, and the law must be able to hold them to account. But, although the Race Discrimination Ordinance contains potent provisions designed to combat discrimination, including vilification of others, the problem is that mainland Chinese cannot enjoy its protections.
It is, therefore, gratifying that the Equal Opportunities Commission has taken up the cudgels, and called for all forms of discrimination against mainland Chinese to be proscribed. It has now made proposals to the government embracing three situations, namely, where people of the same ethnicity discriminate against each other, where people are discriminated against on the basis of their residential status, and discrimination related to where a person comes from even if within the same country. These proposals have resulted from the EOC’s awareness of the scale of the problem of discrimination against this group of people, whether in the workplace, the school or elsewhere.
I consider, therefore, that the EOC’s efforts should be fully supported, and it needs to be empowered to prosecute cases of discrimination against Chinese people from other parts of the country. While new immigrants and visitors are as ethnically Chinese as local people, their cultural, linguistic and historical characteristics can differ greatly, but this is no justification for anybody in the majority to discriminate against, to harass or to victimize anybody in the minority. Equality of treatment is fundamental to both Hong Kong’s common law tradition and its Basic Law, and, as this is sometimes being denied to mainland Chinese, the legislation required to remedy the situation must be timeously enacted. As the EOC has explained, once it is given the tools, it can do the job. On October 20, the EOC Commissioner, Ricky Chu Man-kin, said “now is definitely the time to legislate, and we should do it as quickly as possible”, and in this he was absolutely right.
UNFINISHED BUSINESS (5): ENACTMENT OF BASIC LAW ARTICLE 23
After the enactment of the National Security, Hong Kong has been able to get itself back on track. However, it must be remembered that, when the Standing Committee of the National People’s Congress (NPCSC) enacted the new law in 2020, its approach was minimalist. This is why it only contains those laws which were seen as absolutely essential to protect Hong Kong from the immediate threats it was then facing, and would ensure the survival of the “one country, two systems” policy. Its ambit was, therefore, confined to the crimes of subversion, secession, terrorism and collusion with foreign powers, and no more.
In other words, although the NPCSC was left with no choice but to act, it did so with a keen awareness of the Basic Law (Art.23), which places the responsibility for enacting national security legislation upon Hong Kong itself. Even though Hong Kong, for 23 years, had been unable to discharge its obligations to the country, the NPCSC nonetheless showed its ongoing respect for the Basic Law, and demonstrated great restraint. It could, of course, have decided to deal with all the outstanding national security issues in one fell swoop, including treason and sedition, but it showed its trust in Hong Kong by not doing so. In other words, it still had faith in Hong Kong’s capacity to discharge its outstanding national security law obligations, which is surely humbling.
In consequence, the NSL stipulates that Hong Kong “shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law and shall refine relevant laws” (Art.7), and the implementation of this mandate is the fifth item of unfinished business I wish to consider today. The outstanding areas include treason, sedition, theft of state secrets, a ban on foreign political organizations or bodies from conducting political activities in the city and local political bodies from establishing ties with foreign counterparts. If the required legislation is to be enacted in 2022, the precise nature of the proposed laws will need, after consultation, to be timeously identified. If the new laws are more stringent than those envisaged by the Tung Chee-hwa government’s national security bill in 2003, nobody should be surprised, and the opposition to those very mild proposals was, in retrospect, a huge mistake.
ARTICLE 23: TREASON
When the NSL refers to the need to “refine relevant laws”, this reflects the existence of local laws that, for example, proscribe treason, sedition and theft of state secrets, although they are in urgent need of modernization. Treason is an ancient offence, but it remains clothed in colonial terminology, and, even despite the Reunification Ordinance, updating is long overdue. As things stand, the offence’s epicenter is still the Queen, and it talks about such things as killing, causing bodily harm to “Her Majesty”, and even imprisoning and restraining her. It also proscribes such things as levying war against Her Majesty, seeking by force to change government policy, instigating foreigners to invade, and assisting public enemies at time of war.
Apart from terminological updating, it may be that not much else needs to be done, although a revised definition of what constitutes treasonable activity would certainly be helpful. In 2002, the Security Bureau said treason involves the betrayal of one’s country in collusion with a foreign enemy, whether by cooperating “with foreigners to invade the country or to overturn or intimidate the PRC Government through levying war or the use of violence”, and the focus of the revised law should, therefore, be on betrayal, but with an emphasis upon those who help foreign forces or other public enemies at time of war, or instigate others to invade China.
It should, however, be noted that much of the conduct traditionally classified as treasonable, such as waging war against the country, spying for a foreign country, stealing state secrets, receiving foreign funding, or other types of espionage, with a view to causing harm to the State or the Region, is already criminalized under the NSL(Chapter III, Part 4), which prohibits collusion with a foreign country or with external elements to endanger national security, whether by waging war or otherwise. The policy makers, therefore, will need to carefully consider what types of treasonable activity are already covered by the NSL, and try to avoid, or at least minimize, the duplication of criminality. If, however, they can ensure there is clear blue water between the substance of the two offences, it will be open to prosecutors, in a suitable case, to charge a suspect with both crimes on the same indictment.
It will, moreover, also be necessary to consider incorporating into the revised law the common law offence of misprision of treason. This offence arises when a person knows or has reasonable grounds to believe that another person has committed treason but fails to disclose this to the authorities within a reasonable time. It exists in other jurisdictions, including Australia, Canada, the United Kingdom and the United States, and its inclusion in the revised law would be wholly justified. To conceal treachery is unacceptable, and those who do so must be held criminally liable by statute.
As to the ambit of the treason law, it should cover anybody who stays voluntarily in Hong Kong, regardless of nationality. Although, in many places, treason can only be committed by somebody who owes allegiance to the country by virtue of nationality, allegiance does not have to be based on nationality. After all, anybody who chooses to stay in Hong Kong, takes advantage of its way of life and enjoys its protections has corresponding responsibilities, and should not engage in conduct that endangers the country’s vital interests. Also required is extraterritorial criminal jurisdiction, so that any treasonable activity committed by a resident who at the time is outside the city is prosecutable.
ARTICLE 23: SEDITION
Turning next to sedition, the existing definitions of “seditious intention” in the Crimes Ordinance are comprehensive, and, I suggest, they still have much to commend them. They cover various types of obnoxious activity, and are highly conducive to the maintenance of social order. Although they are wide-ranging, there is a heavy emphasis on creating hatred, contempt, disaffection, ill-will and discontent, including activities detrimental to the administration of justice. One of the definitions of a “seditious intention” covers the situation where somebody promotes feelings “of ill-will and enmity between different classes of the population of Hong Kong”, and this, therefore, as prosecutors should note, might include cases in which there is discrimination against mainland Chinese, although it is unlikely to cover visitors.
It would, therefore, be sensible to clarify this in the forthcoming revision process, and this can be done by spelling out that a seditious intention includes the promotion “of ill-will and enmity between different classes of the population of Hong Kong, including residents and visitors from other parts of the country”. In 2003, it was suggested that the sedition offence should be confined to conduct that incites serious crimes, violence or public disorder, but this is to disregard the manifest benefits of the current law. Once it is updated, its impact can certainly be enhanced, by, for example, specifically criminalizing an intention to cause public disorder to the detriment of the city’s inhabitants. The value of this offence was highlighted in April, when a suspect was convicted in the District Court of conspiring to commit a seditious act in 2019 by spreading, through 9,400 offensive messages posted from a Telegram account, hate speech and encouraging doxxing and assault against the police and officials, although, given sentencing constraints, a sentence of only 15 months’ imprisonment was possible.
Indeed, an obvious aspect of concern in the existing sedition law is the maximum sentences. On a first conviction, an offender is liable to a fine of HK $5,000 and 2 years’ imprisonment, and this rises to 3 years’ imprisonment for a subsequent offence. However, penalties at this level send out a message that sedition is not a serious offence, and are of very limited deterrence value. If, however, the sentences for sedition were to be aligned with those prescribed for secession under the National Security Law (Art.21), under which a principal offender is liable to either life imprisonment or not less than 10 years’ imprisonment, and a secondary party to not less than 3 years’ imprisonment, this would give the law the teeth it currently lacks. Likewise, the punishment for possession of seditious publications is risible, being only a fine of HK$2,000 and 1 year’s imprisonment, rising to 2 years’ imprisonment on a subsequent conviction, and a revision to at least 5 years’ imprisonment is necessary if the offence is to have any credibility.
ARTICLE 23: THEFT OF STATE SECRETS
Although the theft of state secrets is already prosecutable under the Official Secrets Ordinance (Cap.521), it can still be made more effective. As things stand, such things as espionage and unauthorized disclosure of official information are already criminalized, and extra-territoriality applies in most unauthorized disclosure situations. If, however, the offence was to be extended, by making prosecutable a damaging disclosure of protected information obtained by unauthorized access, this would heighten its impact. If the amended offence also made clear that information concerning the relations between the Central People’s Government and the Hong Kong SAR enjoy full protection, then so much the better. At the same time, as I pointed out in relation to treason, the NSL (Chapter III Part 4) makes it an offence to steal State secrets or intelligence concerning national security for a foreign country, and the policy makers should try to avoid, or at least minimize, the duplication of criminality.
ARTICLE 23: FOREIGN POLITICAL ORGANIZATIONS
As regards foreign political organizations, the Secretary for Security, by virtue of the Societies Ordinance, can already control their activities, and prohibit ties with them. The existing regime can, however, be strengthened by criminalizing the organizing or supporting of any entity proscribed on national security grounds. This would include those bodies affiliated with mainland entities that have been banned by the central authorities for security reasons.
UNFINISHED BUSINESS (6): SURRENDER OF FUGITIVE OFFENDERS
I have been asked if the revival of the amendments to the Fugitive Offenders Ordinance (Cap 503), as proposed in 2019, is also a part of unfinished business, but I think not, as they were a one-off. That said, those amendments were highly meritorious, and would have enabled Hong Kong to discharge its law enforcement obligations to the rest of the world, and stopped it from becoming a criminal sanctuary. They would have allowed Hong Kong to return criminal fugitives to the 177 jurisdictions with which it has no surrender agreements, and this would have benefited criminal justice everywhere. They were, however, all one-way, and not reciprocal, and this is necessary.
I suggest, therefore, that the way forward on rendition is now to negotiate bilateral fugitive surrender agreements with particular jurisdictions, based on reciprocity, as was done previously in relation to the 19 places where agreements are already in place, some now suspended. In this process, I would expect priority to be given to our sister jurisdictions elsewhere in China, as well as to any places whose fugitives are evading justice in Hong Kong in significant numbers, and vice versa.
After all, much was said in 2020, quite correctly, about Hong Kong not having enacted its own national security laws, 23 years after reunification, and similar concerns are also legitimate in 2022, over the city’s lack of fugitive surrender agreements with various jurisdictions, 25 years after reunification. The process, therefore, needs to be kick-started, and, if the city still aspires to be Asia’s World City, as it should, it must do all it can to uphold criminal justice at the global level.
CONCLUSION
So, that is how I see things. With the successful implementation of the NSL and the reformed electoral arrangements, social stability has been restored, the business environment is healthy, and responsible governance is assured. With its inner strengths and resilience, and supported by the country and its global friends, I believe that Hong Kong’s best days are yet to come. The city is back on course, and is now able to defend itself from anybody who seeks to harm it, whoever they are and wherever they may be. There are, however, still some areas of unfinished business that require attention in order to complete the job, and I hope that you, and the policy makers, will find my thoughts to be of some value.
Thank you.
The author is a senior counsel and professor of law, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.