After seven people, including the current and former editors of Stand News, were arrested on Dec 29, the police explained that they were suspected of promoting seditious publications.
They were allegedly involved in using the online news platform, between July 2020 and November 2021, to instigate dissatisfaction among the public, incite violence and law-breaking, and stoke hatred of the government and damage the administration of justice. Once investigations are complete, a decision will be taken on whether to charge the suspects, and, if so, with what offenses. If, as has been reported, Stand News allowed criminal fugitives and other hostile actors to use its platform from abroad to incite secessionist activities and subversion, and seek the imposition of foreign sanctions, the charges could embrace not only sedition but also national security.
According to the police, they froze Stand News’ bank account and HK$61 million ($7.82 million) worth of assets, of unknown origin. After a raid on its premises in Kwun Tong, the police reportedly seized 33 boxes of evidence, including computers, equipment, and HK$500,000 in cash. As Stand News does not rely on sponsorship or advertising, the police will now be trying to ascertain the source of all its cash.
Only time will tell what charges are brought by prosecutors against the Stand News suspects, but everybody may rest assured that prosecutions will only ensue if they are viable and evidentially sound. If sedition is one of the charges, this will be no less legitimate than it was in the British colonial era … it(the Department of Justice) will certainly not allow itself to be intimidated by the likes of Blinken
As always, the police operation triggered the customary knee-jerk reactions from the usual suspects. Without having studied either the law or the evidence, the US secretary of state, Antony Blinken, called on the “PRC and Hong Kong authorities to cease targeting Hong Kong’s free and independent media and to immediately release those journalists and media executives who have been unjustly detained and charged”. From London, the serial fantasist, Benedict Rogers, who runs Hong Kong Watch, an anti-China propaganda outfit, denounced what he described as “an all-out assault on the freedom of the press in Hong Kong”, and, for good measure, threw in a call for the “targeted sanctions” of officials. For its part, the Hong Kong Journalists Association announced that it was “deeply concerned”, not, it may be noted, that its fellow journalists may have been involved in nefarious activities, but because of the need to protect “press freedom”.
What, however, all these people need to understand is that, as in other common law jurisdictions, the police force is required to investigate information they receive about the commission of a crime, unless it is palpably frivolous or false. And before they can arrest anybody, they are legally required to have a “reasonable suspicion” that a suspect is involved in an offense; otherwise, the arrest may be unlawful. Having interviewed the suspect and completed outstanding investigations, they may decide that the case can be taken no further, and that will be it.
If the police conclude that there is enough evidence to prosecute the suspects, legal advice on the way forward will normally be sought from the Department of Justice. In making their decision, prosecutors exercise the constitutional independence conferred upon them by the Basic Law (Art.63). Contrary to Blinken’s slur, Beijing plays no role in public prosecutions, and prosecutors will allow a case to proceed only if the evidence provides a reasonable prospect of conviction. Quite clearly, they will not authorize a prosecution that is weak and is likely to collapse once tested at trial.
On Dec 30, it was revealed by Reuters that two of the seven suspects, namely, the former chief editor, Chung Pui-kuen, and the acting chief editor, Patrick Lam Shiu-tung, had been charged with conspiring to publish seditious publications, and that Best Pencil (Hong Kong) Ltd, the company behind Stand News, was also being prosecuted. Although these may only be holding charges, enabling the police to get a handle on the case, it is more likely, given the sensitivity, that legal advice will have first been sought. But whichever it is, prosecutors will need to process the case with their customary professionalism, and this they will undoubtedly do, given that journalistic activity is involved.
Although freedom of speech, of the press and of publication are protected by the Basic Law (Art.27), they are not absolute rights, as even Blinken should know. As the International Covenant on Civil and Political Rights (Art.19), which applies in the UK, the US and Hong Kong, makes clear, limitations on these rights are legitimate if provided for by law and necessary, for example, “for the protection of national security”. Any restriction must also be proportionate, in the sense of being a reasonable response to the danger which it is sought to contain.
In other words, the freedoms the media enjoys have to be exercised responsibly. As the chief secretary, John Lee Ka-chiu, explained shortly after the arrests, “anybody who attempts to make use of media work as a tool to pursue their political purpose or other interests (and) contravenes the law” will “pollute press freedom”. The best way, of course, to protect the right to freedom of expression is to use it responsibly, and, as Lee pointed out, those who use the press as cover to further their political agendas are “bad apples who are abusing their position”. When this happens, therefore, nobody should be surprised if consequences ensue.
After the arrests, some commentators sought to belittle the sedition law as “colonial-era”, thereby impugning its legitimacy. Sedition, however, is an established offense under the Crimes Ordinance (Sect.10), and the fact that it is not used very often in no way diminishes its efficacy. In any event, the phrase “colonial-era” is meaningless, as the bulk of Hong Kong’s laws date from colonial times, including those which, for example, criminalize burglary, corruption, manslaughter, rape, robbery and theft. The very fact that a law has been on the statute book for a long time illustrates its worth, not its antiquity.
In 1938, Britain’s colonial government enacted Hong Kong’s Sedition Ordinance, which criminalized “hatred or contempt or disaffection” toward the monarch or itself, and this offense was duly integrated into the Crimes Ordinance in 1971. Under Section 10 thereof, it is an offense to utter seditious words, to commit an act with seditious intent, to publish seditious matter, or to possess seditious publications. In Britain and elsewhere, sedition has always been regarded as a tough response by the authorities to particular situations, not least because it places restrictions on what people can say or publish. Hong Kong’s sedition offense, therefore, contains certain safeguards, including a requirement that any prosecution can only be instituted once the written consent of the secretary for justice has been obtained (Sect.11), and that nobody shall be convicted of subversion “on the uncorroborated testimony of one witness” (Sect.12), which is most unusual in criminal prosecutions.
As to what constitutes a seditious intent, such things as bringing the administration of justice into hatred or contempt, raising discontent or disaffection (disloyalty) among the population and promoting feelings of ill will among different classes in the community are covered, as also is an incitement of people to violence. The offense is punishable, on a first conviction, with a fine of HK$5,000 and two years’ imprisonment, rising to three years’ imprisonment on a subsequent conviction.
Prior to the reunification in 1997, the sedition offense was, as now, usually deployed at times of social unrest. In 1952, for example, the proprietor, publisher and editor of the Ta Kung Pao newspaper were accused of sedition for its reporting of the government’s response to the Tung Tau Tsuen squatter fire, and this resulted in imprisonment, fines and a 12-day banning order for the newspaper. Thereafter, in 1967, the publishers and printers of three local newspapers were prosecuted for publishing false and seditious news, publishing articles with the intent to arouse the discontent of police officers, and violating publication controls, and sentenced to three years’ imprisonment, with the operation of all three newspapers suspended for six months.
That sedition remains a viable offense with a continuing role to play in protecting Hong Kong is recognized by the Basic Law itself (Art.23), which imposes on Hong Kong an obligation to enact a number of national security laws, including sedition. The National Security Law for Hong Kong, moreover, stipulates that Hong Kong “shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region and shall refine relevant laws” (Art.7), and this will hopefully ensure the modernization of the existing sedition offense is completed in 2022. In the meantime, sedition remains an important means by which the police can help to defend Hong Kong, and nobody should be surprised when it is invoked in appropriate cases.
Only time will tell what charges are brought by prosecutors against the Stand News suspects, but everybody may rest assured that prosecutions will only ensue if they are viable and evidentially sound. If sedition is one of the charges, this will be no less legitimate than it was in the British colonial era. As the Department of Justice, under the Basic Law, enjoys prosecutorial independence “free from any interference” (Art.63), it will certainly not allow itself to be intimidated by the likes of Blinken. It will only take the decisions it considers to be just, and this is reassuring for everybody who is genuinely concerned with upholding the rule of law.
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.