Why journalists are worried about the five new offences proposed in Hong Kong’s domestic national security law

Originally published on Global Voices

Image from HKFP. Used with permission.

The one-month public consultation period for Hong Kong’s domestic national security law, dubbed Article 23, ends today on February 28, 2024.

The Hong Kong Chief Executive John Lee claimed that the majority of the opinions they received expressed support for the legislation with the stress that “threat [to national security] has been mounting.”

At the same time, over 80 international human rights groups issued a joint statement condemning the legislation:

Many of these proposed provisions are vague and criminalize people’s peaceful exercises of human rights, including the rights to freedom of association, assembly, expression and the press.

The drafted Article 23 has introduced five extra sets of national security offences in addition to the pre-existing four offences (terrorism, secession, collusion and subversion) codified in the Beijing-imposed NSL and enacted on June 30, 2020. The new offences are treason, sedition, state secrets and espionage, sabotage and external interference, and these offences will stipulate extra-territorial effects.

After years of crackdown on civil society, the Hong Kong Journalist Association (HKJA) becomes a rare voice questioning the drafted law within the city.

Below is an explainer about the newly introduced five offences in the Hong Kong government consultation document and the journalists’ concerns written on HKJA's consultation opinion concerning the grave impact of Article 23 on freedom of speech.

In general, as the scope of the new offences is too broad and many terms such as “external forces” and “external interference” are vaguely defined, HKJA suggests introducing the principles of “public interest”, “actual damage”, and “intention to harm or cause harm to national security” to avoid incriminating journalism and protect freedom of the press.

Treason

The crime of treason was originally written in the city's Crime Ordinance to safeguard the colonial British government. Under the current ordinance, the offences included “treason”, “misprision of treason” (under Common Law), “treasonable offences”, and “unlawful drilling”. 

The proposed law alters the colonial references of “the Queen” and “Her Majesty” into “China” and “governments”, and the Common Law offence of “misprision of treason” will be codified as:

If a person knows that another person has committed, is committing or is about to commit the offence of “treason”, the person must disclose the commission of the offence to a police officer as soon as reasonably practicable, unless the commission of offence has been in the public domain, otherwise, the person commits an offence.

Sedition

The proposed law will introduce a new set of Sedition Laws which covers “incitement to mutiny/disaffection”, “acts with seditious intention”, and “insurrection”. The first three offences are currently written in the Crime Ordinance. 

The crime “acts with seditious intention”, which has been re-activated after 2019 to prosecute political dissidents and online dissents, will be broadened to cover intention to arouse hatred or contempt for or rebellion against the national system established by the Constitution, the institutions of the State, or the constitutional order of the HKSAR among Chinese citizens, Hong Kong permanent residents, or persons in the HKSAR; as well as intention to arouse hatred or enmity between residents of the HKSAR or between residents of different parts of China, etc. 

The government also intends to increase the penalty for sedition offences. One non-official suggestion is lifting the jail time up to 10 years from the current two to three years.

The new offence, “insurrection”, will be introduced into the new Sedition Laws targeting civil disturbance or rebellion against the state or government. 

HKJA points out that the government has broadened the scope of Sedition to hatred or enmity between HK and mainland Chinese residents regardless of the consequences of the speech acts. It says:

諮詢文件建議擴大煽動罪的範圍和提高相關罪行罰則，令人擔憂進一步窒礙言論和新聞自由，而且與國際慣例背道而馳。

The proposals to extend the scope of sedition and increase the penalties for related offences are worrying as this would further choke the freedom of speech and the press. It also goes against international practice.

Theft of state secrets and espionage

The proposed law adopts the mainland Chinese scope of “state secrets”, which includes the secrets of the state of Hong Kong with respect to major policy decisions, national defence and diplomacy, economic and social development, science and technology, etc.

Acts of espionage cover entering or accessing a prohibited place, being in the neighbourhood of a prohibited place, obtaining any information,
document or other article for a purpose useful to an external force and collusion with “external forces” to publish false or misleading public statements with the intent to endanger national security.

In addition, “participating in or supporting external intelligence organisations or receiving advantages from external intelligence organisations, etc.” will be introduced as a new offence under espionage-related acts.  The acts of participation and support range from being a member, providing financial support or information, recruiting members for the organisation, and receiving substantial advantages offered by the organisation.

The term “external forces” refers to “any government of a foreign country, authority of a region or place of an external territory, external political organisation, etc., as well as its associated entities and individuals. 

HKJA points out that the extensive definition of national secret that covers economic and social development, science and technology will create a chilling effect in the media sector from reporting on related issues. Moreover, it finds the definition of external forces disturbing:

外國公營媒體，包括電台、電視台及國際通訊社、其他直接或間接接受政府資助的媒體機構、其員工及其他合作第三方，有機會被列為「境外勢力」。

Foreign public broadcasters, including radio, television and international news agencies, other media organizations that receive direct or indirect governmental funding, their employees and other collaborating third parties, may be classified as “external forces”.

如有本地或外國傳媒在報道中，引用外國官員對香港或中國政府的批評，會被指抹黑或虛假陳述而危害國家安全。即使記者就事實盡力求證，報道涉及公眾利益的課題，一旦政府否認，亦可能會被指作出「虛假或具誤導性的事實陳述」。

If a local or foreign media outlet quotes a foreign official's criticism of the Hong Kong or Chinese governments in a report, it may be accused of smearing or making false statements that are harmful to national security. Even if journalists try their best to substantiate facts and report on issues of public interest, they may be accused of making “false or misleading statements of fact” once the government denies them.

Sabotage

The new offence will criminalize acts that damage or weaken public infrastructure and a computer or electronic system.

External interferences

The new law seeks to criminalize acts with intent to bring about “an interference effect” in collaborating with an external force and using improper means when engaging.

Again, the scope of interferences is extensive, from elections to prejudicing the relationship between the Central Authorities and HKSAR or the relationship between China or the HKSAR and any foreign country. 

The definition of “collaborating” with external forces covers many activities, including “participating in an activity planned or otherwise led by an external force”, while “using improper means” refers to acts that damage a person’s reputation or cause spiritual injury. 

The consultation document also proposes that the Secretary for Security be given the power to ban any organization, local or external, from operating in the city for the purpose of safeguarding national security.

HKJA expresses worries that:

日後傳媒出席任何與外國政府有關聯的商會、基金會舉辦或資助的記者會、體育比賽等，可能被視作「配合境外勢力」。如活動當中有人批評官員或發表不利政府的言論，傳媒作出報道亦可被視為「明知而作出關鍵失實陳述」或「威脅使任何人的名譽受損」而觸犯法例。

In the future, media outlets attending press conferences, sports competitions, etc. organized or sponsored by chambers of commerce or foundations affiliated with foreign governments may be regarded as “collaborating with foreign forces”. If, during the occasion, someone criticizes an official or makes unfavourable remarks about the government and the media outlets report on their speech, they may also be viewed as “knowingly making material misrepresentations” or “threatening to bring any person into disrepute”, and thus violate the law.

After the enactment of Beijing-imposed NSL in 2020, two pro-democracy media outlets, Apple Daily News and Stand News, were forced to shut down after police arrested their senior staff members and raided their offices. Under the new legislation, the Secretary for Security can directly prohibit news outlets from operating in Hong Kong without entering the judicial process of criminal arrest and prosecution, HKJA highlighted.

HKJA's view is rebutted by the Hong Kong Federation of Journalists, a pro-establishment group, as “seriously twisted the facts and attempted to cause confusion and create panic”.

Originally published in Global Voices.