With Article 23 national security law, Hong Kong people have nothing to fear

Most of the heavy lifting was done when the 2020 national security law was enacted but unfinished business remains
The proposed offences will only be prosecutable if the traditional criteria are satisfied. The proposals are defensive in nature, and recognise that suspects must be properly treated

Grenville Cross

Published: 9:30am, 6 Feb 2024

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In China, as in the West, national security is a high priority. In its Article 23 legislation consultation paper, the Hong Kong government called it “the fundamental prerequisite for the survival of a state”. That Beijing has entrusted Hong Kong and Macau to enact their own is a remarkable show of faith.

While Macau enacted its Article 23 legislation in 2009, Hong Kong was unable to follow suit, despite an attempt in 2003. Its constitutional obligation was not discharged, and it became China’s Achilles’ heel. This situation was ruthlessly exploited in the social disturbances of 2019-20, when “one country, two systems” was in real peril.

In 2020, when Beijing enacted the national security law for Hong Kong, it showed due deference to the Basic Law. Its approach was minimalist, only enacting the Article 23 laws immediately required to protect the city, namely, secession and subversion. Now, the Hong Kong government is forging ahead. Its consultation paper describes national security as “a top priority for any state”, and its proposals are defensive in nature.

Apart from modernising the treason and sedition laws and enhancing their effectiveness, the government envisages new offences. They cover insurrection (serious civil disobedience), incitement to mutiny and disaffection, espionage (including spying) and theft of state secrets (defined in detail), and sabotage, including attacks on public infrastructure and misuse of computer technology.

The proposed offence of “doing an act in relation to a computer or electronic system without lawful authority and endangering national security” is novel but not unfamiliar. It derives from the UK’s Computer Misuse Act 1990. It would, for example, cover situations where a hacker stole classified national security information, or somebody gained control over strategic governmental electronic systems.

The proposed offences will, moreover, only be prosecutable if the traditional criteria are satisfied. As with other serious offences, there will need to be both a criminal act and a criminal intention. A prosecution will only result if the evidence affords a reasonable prospect of conviction, and it is in the public interest. Citizens and companies going about their everyday business have nothing to fear.

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The concept of national security will refer, as in mainland China, to the political regime, sovereignty, unity and territorial integrity, people’s welfare, sustainable development and major state interests, and involves keeping them free from danger and threats through appropriate security.

As Britain’s then-home secretary Douglas Hurd told parliament in 1989, any definition of national security “has to be comprehensive”, as it “relates to the survival and well-being of the nation”. The government’s proposals satisfy his test.

The UK, moreover, has also recognised the need to adequately protect itself, and has enacted comprehensive laws. They include the National Security and Investment Act (2021), which allows the government to intervene in business transactions, and the National Security Act (2023).

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The National Security Act updated and introduced new offences related to espionage, sabotage, foreign interference and influence. It also controversially provided the police with extra powers of detention and arrest, and curbed pre-trial rights.

Although Hong Kong is considering how the UK and other jurisdictions protect themselves, it is reassuring that its proposals recognise that suspects must be properly treated. Where Hong Kong’s national security law provides for the protection of human rights, applicability of the International Covenant on Civil and Political Rights and due process at trial, the proposed Article 23 offences will be similarly underpinned. Trials will only ever be conducted in Hong Kong.

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Anybody charged will enjoy the traditional protections. A suspect will be entitled to legal representation, and enjoy the presumption of innocence. A conviction will only result if guilt has been proved beyond reasonable doubt. Even then, as the International Covenant on Civil and Political Rights provides, there are rights of appeal.

Although the proposals do not contain detailed penalty provisions, the government says it is in listening mode. Those elsewhere who commit national security offences invariably face condign punishment, and Hong Kong cannot be an exception.

In the UK, for example, somebody who obtains or discloses protected information faces life imprisonment, the sentence for obtaining or disclosing trade secrets is up to 14 years’ imprisonment, the same penalty as for assisting a foreign intelligence agency. Whereas treason in Hong Kong is punishable with life imprisonment, as in the UK, the maximum penalty for sedition is only two years’ imprisonment on a first conviction, which provides no effective deterrence.

The government should listen to the people on national security laws

Although the 2020 national security law contains structured penalties, which specify both the maximum and minimum sentences, this is uncommon in Hong Kong’s jurisprudence. There appears no reason not to have, as is customary, simply a maximum sentence for each of the proposed offences, with the court deciding the exact penalty.

While the government is considering a public interest defence, it should avoid creating a rod for its back. It may be counterproductive to create loopholes, not least because they can generate legal uncertainties. If there is genuine public interest for an unauthorised disclosure, prosecutors can always decide not to prosecute, failing which it could be relied upon as a mitigating factor in sentencing.

Although most of the heavy lifting was done when the national security law was enacted, unfinished business remains. In an increasingly precarious world, Hong Kong is duty-bound to honour all its national responsibilities.

The community and the business world welcomed the return of normality in 2020, and the government’s proposals will cement the process. After all, social and political stability provides the bedrock for business, investment and jobs, and the sooner the remaining dangers are neutralised, the better.

Grenville Cross SC is a criminal justice analyst