Why the legislation?
Covered by Beijing-imposed security law in 2020
Covered by colonial-era sedition law
Article 23 of the Basic Law, Hong Kong’s mini-constitution,
says the government should enact laws “on its own” to ban any
act of
treason, secession,
sedition,
subversion against the central government, or theft of state secrets.
Hong Kong must also prevent foreign political organisations from
conducting political activities in the city, and prohibit local
political outfits from forming ties with their foreign
counterparts.
The government first attempted to introduce the law in 2003,
but backed down after a massive public protest.
How is it linked to the Beijing-imposed security law?
The domestic legislation is expected to complement the
Beijing-imposed national security law enacted in June 2020, and
fill in other gaps in the city’s wider legal framework on
security. The earlier law targets only four major offences –
secession, subversion, terrorism and collusion with foreign
forces.
Hong Kong national security authorities have also made arrests
under the colonial-era sedition law in the Crimes Ordinance, with
allegations centred on certain acts and speeches.
An overview of the proposed law
Hover or tap for more information
Treason
Insurrection, incitement to mutiny and disaffection, and acts with
seditious intention
Theft of state secrets and espionage
Sabotage endangering national security
External interference
What constitutes a breach of the external interference offence?
- Collaborating with an “external force”, and
- Having intent to interfere in Hong Kong affairs, and
-
Using “improper means” such as knowingly making a material
misrepresentation, using or threatening to use violence against
a person, causing or threatening to cause financial loss to a
person, and damaging or threatening to damage a person’s
reputation
What will ‘state secrets’ cover?
“Secrets” concerning
Major policy decisions on affairs of the country/city
Construction of national defence or armed forces
Diplomatic or foreign affairs activities of the country
External affairs of Hong Kong
Economic and social development of the country/city
Technological development or scientific technology of the
country/city
Activities for safeguarding national security or that of Hong
Kong
Activities for investigating offences
Relationship between the central government and Hong Kong
authorities
Who are the ‘external forces’ in the proposal?
As well as foreign governments, “external forces” can be
authorities of an external territory and external political
organisations. An entity or individual can also come under the
definition if an outside authority or organisation is “able to
exercise a substantial degree of control” over them.
Timeline
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Public opinion
Concerns
Groups that expressed concerns included the:
Hong Kong Bar Association
The association said authorities should strike a balance that
takes into account the constitutional guarantees of human rights
and the rule of law. It called for clearer definitions for the
proposed offences of theft of state secrets and foreign
interference and narrower scopes for crimes such as sedition and
treason.
It also called for clearer definitions for the proposed offences
of theft of state secrets and foreign interference, narrower
scopes for crimes such as sedition and treason, as well as the
entitlement of a public interest defence with a threshold that
“cannot be too low”.
European Chamber of Commerce
The chamber said some of its members were concerned about “vaguely
defined concepts such as ‘state secrets’ and ‘foreign
interference’”. It asked the government to consider methods in
which more clarity could be provided during the drafting process.
Hong Kong Journalists Association, Foreign Correspondents’ Club
and Hong Kong News Executives’ Association
The journalist groups called on the government to offer clear
provisions, such as the definition of state secrets, and introduce
a public interest defence under the law.
How Article 23 legislation and the national security law will work
in tandem
The new legislation will not overlap with the Beijing-decreed
national security law (NSL), but officials have emphasised the two
must be compatible and complement each other.
Article 7 of the NSL, for instance, mandates Hong Kong to
“complete” the Basic Law obligation of making its own security
legislation. Bail conditions stipulated in Article 42 of the NSL
will cover the new legislation.
But the new local ordinance will stick to common law principles,
unlike the Beijing-imposed NSL. Justice secretary Paul Lam said
the local legislation will only stipulate maximum penalties, not
minimum ones. The new law will also not provide the possibility of
handing over a case to mainland authorities.
The NSL provides that the court will have to ask the chief
executive to certify whether material is a state secret. Law
professor Albert Chen Hung-yee has suggested the same rule will
apply to trials under the new legislation.
Notable prosecutions under the 2020 national security law
convicted under the national security law in 2021. He was given
a nine-year sentence.
He was found guilty of terrorism and incitement to commit
secession for driving his motorcycle into a group of police
officers in 2020 while flying a flag that carried the slogan
that called for Hong Kong’s “liberation”.
Tai Yiu-ting and student activist Joshua Wong Chi-fung, faced a
joint charge of conspiracy to subvert state power after being
involved in an unofficial primary poll in 2020 to boost the
opposition camp’s chances of controlling the Legislative Council
by shortlisting its election candidates.
Prosecutors have described the primary as a scheme to convert
Legco into a “constitutional weapon of mass destruction” against
the government. The decision of a three-judge court on 16 of
them who pleaded not guilty is not expected before March at the
earliest. The court is expected to set dates later this year for
hearing pleas for mitigation for the remaining 31, who have
pleaded guilty.
tabloid newspaper, is accused of colluding with foreign forces
by calling for international sanctions against authorities, and
inciting public hatred during the 2019 protests.
He is also facing one count of conspiring to publish seditious
publications under the Crimes Ordinance. His hearing began on
December 18 and is expected to take 80 days.
each sentenced to 19 months in jail for the production and
distribution of publications that breached Hong Kong’s
colonial-era sedition law in 2022.
The books, depicting a tale of a village of sheep that must
defend itself against a pack of invading wolves, were said to be
a “brainwashing exercise” to indoctrinate students into wanting
to separate the city from mainland China.
Prosecution numbers
What’s next?
The government has opted for an accelerated legislative process
for Article 23 this time, saying it must go at “full speed”.
Authorities unveiled the proposal on January 30 and spent 30 days
gauging public views. An urgent meeting was called with top
government advisers to endorse the official bill a week after the
consultation wrapped up.
The first reading of the bill is taking place at a special Legco
meeting with all members on March 8, followed by a four-hour bill
committee meeting in the afternoon. The Post has learned that
authorities are aiming to pass the bill in early April, before
National Security Education Day on April 15.
Stay tuned to this multimedia explainer which
will be updated when the first draft of the bill is out.
Associate Creative Director Marcelo DuhaldeAdditional reporting by Jeffie LamEdited by John Henderson and
Kieran Cash
Sources: Security Bureau, The Research Team on the Compendium of
Submissions on Article 23 of the Basic Law, Hong Kong Government,
SCMP
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