It said the offence of treason can target acts such as joining an external armed force that is at war with China, instigating a foreign country to invade China with force, and behaviour with intent to endanger the sovereignty, unity or territorial integrity of the country with force or by threatening to use force.

It has also recommended retaining treasonable offences under the Crimes Ordinance to target people who publicly reveal their intention to commit treason.

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The common law offence of “misprision of treason” should be codified so that anyone who knows that another person has committed, is committing or about to commit treason, must disclose such matters to a police officer, unless it has been revealed publicly, the government has proposed.

It has also suggested improving the existing offence of “unlawful drilling” to ban receiving, participating in or providing training in the use of arms, practice of military exercises or practice of evolution involving external forces.

2. Insurrection, incitement to mutiny and disaffection, and acts with seditious intention

To prevent acts that endanger national security, such as incitement to mutiny, incitement to disaffection, and incitement to hatred, the government has advised that existing offences related to sedition be improved.

It has also recommended introducing a new offence of “insurrection” targeting actions such as joining or being a part of an armed force that is in conflict with the country, and with intent to endanger the sovereignty, unity or territorial integrity of the country or the city’s public safety, and conducting a violent act in the city.

There is no offence of insurrection under current laws, and handling the “large-scale violence” during the 2019 protests with the existing riot offence “fails to adequately reflect” criminality or the level of penalty, the nature of such violence in endangering national security, the consultation paper says.

“Seditious intention” can cover intentions such as to invoke hatred, contempt, disaffection against China’s fundamental system, the central government, and Hong Kong’s executive, legislative and judicial authorities, to induce hatred or enmity among Hong Kong or residents of other regions of China, and to incite others to violate Hong Kong’s laws or not obey the government’s order.

3. Theft of state secrets and espionage

The paper lists seven types of secrets that can equate to a state secret if they are disclosed with no “lawful authority” and are likely to endanger national security.

It includes secrets such as those concerning major policy decisions on affairs of the country or Hong Kong, the construction of national defence or armed forces, diplomatic or foreign affair activities of the country, and the economic and social development of the country or the city.

The current Official Secrets Ordinance does not ban public servants or government contractors from revealing confidential information due to their position to endanger national security, such as publishing “inside information” to “mislead” the public and “induce” people’s hatred against the government, the paper says.

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The government has recommended consolidating and improving the relevant offences into five categories: unlawful acquisition of state secrets; unlawful possession of state secrets; unlawful disclosure of state secrets; unlawful disclosure of information that appears to be confidential matter; and unlawful possession of state secrets when leaving Hong Kong.

Under the proposal, a public officer or government contractor can be penalised for disclosing any information, document or other article which will be or is likely to be a confidential matter “if it were true”, regardless of whether the relevant information is true or not.

It also proposes amending existing laws and terms related to espionage to cover acts and activities of “modern-day espionage”, as well as introducing a new offence to prohibit participation in, support to or receipt of benefits from foreign intelligence organisations.

4. Sabotage endangering national security and related activities

Citing the 2019 social unrest, the paper says acts of sabotage or impairment of public infrastructure such as transport facilities and MTR stations paralyse the normal operation of society.

The government has suggested introducing a new offence of “sabotage activities which endanger national security” targeting damage or abuse of infrastructure, as well as any facilities providing services such as water supply, drainage, energy, fuel or communication.

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It says in foreign countries, offenders of such laws face imprisonment from 20 years to life, which can be used for reference.

A new offence to forbid unauthorised acts in relation to a computer or electronic system to endanger national security should also be introduced, it says.

5. External interference and organisations engaging in activities endangering national security

The paper has floated a new offence of “external interference” which will bar behaviour that collaborates with an external force to produce outcomes such as influencing the central or Hong Kong government in the formulation or execution of any policy or measure, interfering with the city’s elections, affecting the Legislative Council or a court in discharging functions.

The government says that even with the enforcement of the Beijing-imposed national security law in June 2020, risks where external forces, local organisations and individuals take part in activities that endanger national security targeting Hong Kong authorities still exist.

“Collaborating with an external force” may cover situations such as participating in an activity planned or led by an outside group, or engaging in conduct on behalf of an external force.

The paper has also suggested expanding the application of the existing Societies Ordinance, empowering the government to cease the operation of any organisations, both local and external, if necessary for the sake of national security.

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6. Extraterritorial application

The paper advises that some offences in the proposal may enjoy extraterritorial effect.

The government will determine “proportionate and reasonable” extraterritorial effect based on the threats the offences aim to address, and the circumstances where different people or groups may commit these acts outside Hong Kong.

Reference to three international law principles and practices – territorial principle, personality principle and protective principle – may be made when deciding the suitable scope of application, similar to national security laws of various countries, the paper says.

For the territorial principle, the criminal law of a state only regulates acts that take place within its territory. Under the personality principle, a state may exercise jurisdiction over criminal acts committed by its citizens or residents outside its territory.

Under the protective principle, if foreigners commit criminal acts against the sovereign state outside its territory that endanger its security or its vital interests, the state can adopt laws with extraterritorial effect.

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7. Other suggestions

From the experience of handling cases related to large-scale riots in 2019, the government says police may take more time to complete the gathering of evidence and decide whether to lay charges in complex cases.

The paper suggests implementing measures to allow law enforcement “sufficient time” to conduct initial investigations and prevent suspects from further harming national security.

The current Police Force Ordinance stipulates suspects will not be detained for more than 48 hours in a general sense.

The paper says an arrested person involved in an offence endangering national security “may pose considerable risks while on bail”, such as associating or communicating with other members of a syndicate.

It cites the UK National Security Act, which allows police to apply to a judicial authority for an extension of detention and enables some officers to ban a detainee from consulting a particular solicitor, while the US allows the Department of State to revoke a person’s passport.