All you need to know about Hong Kong’s domestic national security law
Hong Kong has passed its own national security law which will complement one imposed by Beijing in 2020, outlawing five new types of offences and fulfilling the city’s constitutional obligations. After a failed bid in 2003, the second attempt to introduce the law faced little opposition and won majority support, according to the government after it ended a month-long consultation process over a working paper it published on January 30.
Eight days later, it introduced draft legislation titled Safeguarding National Security Bill in the Legislative Council on March 8. Lawmakers then spent six days conducting a clause-by-clause scrutiny of the bill, fielding more than 1,000 questions. On March 19, they continued with the second and third readings of the bill, a day ahead of their regular session in order to fast-track the passage of the legislation. The law was passed unanimously on the same day, with the city leader announcing it would take effect on March 23. The entire process took 50 days.
Here is an overview of key events leading up to the formulation and passage of the legislation and its key details.
Why the legislation?
How is it linked to the Beijing-imposed security law?
The domestic legislation will 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 police have also made arrests under the colonial-era sedition law in the Crimes Ordinance, with allegations centring on certain acts and speeches.
An overview of the law
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Crimes Ordinance
Treason
Apart from treason, which deals with acts such as joining an external armed force at war with China, the requirement on disclosure of commission by others of offence of treason is added. The “unlawful drilling” offence is updated. Exemptions will be made for non-Chinese citizens.
Crimes Ordinance
Incitement to mutiny and disaffection
The updated offence targets conduct of knowingly inciting an armed forces member or public officer to abandon allegiance to the country or Hong Kong. Also, there is the offence of possessing a document with intent to incite mutiny or disaffection.
Acts with seditious intention
The existing offence is reorganised into six parts, including intention to induce hatred among residents and inciting someone to commit an illegal act. Penalties for seditious acts and possessing seditious publications are raised.
CREATE NEW LAW
Insurrection
Insurrection
The new insurrection offence targets acts such as assisting an armed forces member “with intent to prejudice” Chinese forces and “doing a violent act” in Hong Kong while “being reckless” towards public safety.
Official Secrets Ordinance
Theft of State Secrets
Punishable conduct includes acquisition, possession and disclosure. A conviction must meet the conditions of “without authorisation” and intent to endanger national security.
Espionage
The revised offence targets certain conduct with intent to endanger national security, such as obtaining materials “useful to an external force”, or to “collude” with them to knowingly publish misleading information.
Sabotage activities endangering national security Unauthorised acts relating to a computer or electronic system
The two new offences target “damaging or weakening” of infrastructure and “an act in relation to a computer” without authority and with intent to endanger national security. Doxxing of police officers was cited in the consultation paper.
Societies Ordinance
Outlawing organisations
The update empowers the security minister to prohibit operations of a local organisation when the official “reasonably believes” it is necessary for protecting national security. CREATE NEW LAW
External interference
External interference
The offence covers conduct with the intent to interfere with national or local authorities, and in collaboration with an external force (such as receiving direction, or financial or other support).
Key penalties under the new legislation
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
Who are the ‘external forces’ in the law?
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.
What do ‘state secrets’ cover?
“Secrets” concerning
Inclusion of a public interest defence
The bill outlines “specified disclosure” of information as a defence for those charged with unlawful acquisition, unlawful possession or unlawful disclosure of state secrets.
It is defined as:- When the purpose of disclosing the information is to reveal the government’s performance of its functions is seriously affected; or to reveal a serious threat to public order, public safety or public health
- If public interest in the information being revealed “manifestly outweighs” the public interest of not disclosing it
But the condition is not listed as a defence for people who unlawfully acquire, possess or disclose state secrets with the intention to endanger national security.
Expansion of security authorities’ powers
The legislation also introduces new rules that will affect people arrested and convicted for national security offences:
Amendments introduced by the government
The amendment cleared by lawmakers on March 14 included small fixes such as spelling errors and incorrect word choice, as well as changing the title of an offence and new clauses, with many of them essentially shoring up the law and giving the executive branch more power. Some examples:
Legislative process for Safeguarding National Security Bill
Clause-by-clause deliberation by bills committee
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Timeline
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.
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.
Despite the defence being included in the bill, the journalists’ association complained the threshold for invoking it might be too high, which could make it difficult to convince a judge the information reported is of significant public interest.
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 Article 23 bill also includes a similar arrangement to empower the city leader to issue a certificate in attesting whether an act or matter involves national security or whether any material involves state secrets. Such a certificate can be granted outside court proceedings on the chief executive’s “own motion”.
Notable prosecutions under the 2020 national security law
Leon Tong Ying-kit became the first person to be charged and 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”.
A total of 47 opposition figures, including legal scholar Benny 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.
Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily 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.
Five speech therapists behind a series of children’s books were 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
Associate Creative Director Marcelo Duhalde
Additional reporting by Jeffie Lam
Edited 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
