The introduction of national-security legislation under the aegis of Article 23 of Hong Kong’s Basic Law merits careful analysis, devoid of emotive reactions.
The statement that the provisions of Article 23, as with all other Hong Kong laws, will be subject to the common law, comes as a significant reassurance to lawyers practicing in the jurisdiction.
Every jurisdiction makes statutory provision for what is loosely termed national security, and as with any legislation, the devil lies in the detail.
Taking the United Kingdom as a point of reference, despite having no written constitution, the common law evolved to incorporate the concept by way of the subject’s duty of loyalty to the sovereign.
Historically, however, Henry VIII had those he suspected of sleeping with his wife charged, convicted and beheaded for treason, demonstrating how administrators, regardless of their constitutional description, will bend the words to cover whatever they desire.
Governments of every description will happily invoke the emotive language of treason to suit their own purposes. As defense counsel, I once represented a teenager who, standing in the crowd, fired a starting pistol within the sight of Queen Elizabeth at the Trooping of the Color; not only was he charged and convicted of treason, the attorney general prosecuted him, in person, and the Lord Chief Justice himself presided over the trial.
The Treason Act of 1842 provided that “if any Person shall wailfully … discharge or cause to be discharged … any explosive Substance or Material near to the Person of the Queen … with Intent … to injure the Person of the Queen, or with Intent … to break the public Peace, or whereby the public Peace may be endangered, or with Intent … to alarm Her Majesty … every such Person so offending shall be guilty….”
The penalty at that time included transportation for seven years and/or hard labor with whipping. A modified and less savage version of this Act was passed in 1998.
The parliamentary draftsmen responsible for the Treason Act, not content with particularizing what was meant by “compassing or imagining the Death or Destruction of the Queen, or in compassing or imagining any bodily Harm tending to the Death or Destruction, maiming or wounding, of the Queen,” invested the offense with a far broader ambit of activity when it spoke of breaking or endangering the public peace as a distinct means of committing treason.
Despite the fact that my client only fired a starting pistol, which makes a sharp crack but does not discharge a projectile, the wording of the Act does not distinguish between a harmless and a lethal weapon.
Talk about overegging the pudding.
The point is that a broadly or loosely drafted item of legislation leaves its interpretation open to the administration, so that all too often the court’s discretion is circumscribed.
A central characteristic of an equitable system of justice is that there must be clarity in the law, so that those subject to it can be sure what is permitted and what is prohibited. This is a cardinal principle of the common law.
The legal principle that “ignorance of the law is no defense” is meaningless if the meaning of the law’s provisions are obscure or expressed in language beyond the comprehension of the average subject.
As envisaged in the government’s consultation proposals, it is right and proper that Hong Kong should have provision in the Basic Law, in principle, to guard against treason; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; sabotage; foreign interference; theft of state secrets and espionage.
What constitutes ‘foreign interference’?
However, the reference to foreign interference strikes me as entirely otiose. “Foreign interference” can only have criminal significance if it involves one of the specific offenses, such as seditious intention or theft of state secrets.
When the respective governments of country A criticize country B for some purely domestic activity, we are accustomed to B’s foreign minister hurling accusations of interference in matters that are none of their concern.
By way of contrast, where the government of country A pays X, a subject of country B to do something contrary to the national security of country B, the criminality lies in the specific offense committed by X, be it theft of state secrets, espionage or whatever that X is guilty of.
Using a generic description of foreign interference adds nothing by way of clarification to a specific offense but using it as a standalone offense only creates uncertainty, confusion and is diametrically contradictory to the clarity demanded by the common law.
Where the laws that apply to a particular jurisdiction are unequivocal, its subjects can go about their daily lives safe in the knowledge that the parameters of the law are clearly prescribed. The alternative is to create a climate of apprehension at best and fear at worst.
Within the context of national security, the proposed offense of inciting hatred carries an inherent vagueness that, on its face, leaves a wide margin of woolly discretion in its interpretation by the administrators.
Hong Kong’s secretary for security was asked whether someone who continuously criticized the Legislative Council would be considered to be invoking hatred.
The security secretary was plainly trying to reassure the questioner when he said that it was reasonable to raise an opinion but whether doing so constituted an offense would depend on the person’s intention.
Realizing that this hardly constituted a satisfactory explanation, the security secretary enlarged on his answer, saying: “It is about whether one’s intention is to give advice or give sweeping comments. One may be telling the truth but if one just focuses on one fact, repeatedly stating and exaggerating with deliberate tones with an intention to invoke, it is different.”
One can understand what the security official was endeavoring to say but it is highly improbable that any such enlarged definition will find its way into Article 23.
Had he said that telling lies or deliberately twisting the truth as a means of criticizing the Legislative Council, that much would have made sense and reduced the definition to unequivocal terms, readily capable of being understood by the man in the street.
But resorting to words capable of a multitude of interpretations, such as “sweeping comments” and “exaggeration” and reliance on the tone of voice, would give rise to an interpretive can of worms.
Would the sweeping be with a broad or narrow brush? How to measure exaggeration, by the length of Pinocchio’s nose? And which of the 12 tones in Cantonese would suffice?
Introduction of soundly drafted domestic national-security legislation by way of the Basic Law is a golden opportunity for the incumbent administration to silence critics both at home and abroad, demonstrating that the rule of law continues to prevail in Hong Kong.
The current administration has taken significant steps to restore Hong Kong’s reputation as the leading Asian financial hub.
One can but hope that it will recognize that drafting Article 23 requires highly experienced Hong Kong lawyers, versed in the language of the common law, to give it the status and recognition that will ensure the international standing of the jurisdiction.
Neville Sarony is a noted Hong Kong lawyer.