Among the offences targeted in the new legislation is the use of improper means with an intent to bring about an interference in local affairs by collaborating with an external force.
The proposal also calls for outlawing collusion with an external force and knowingly publishing false or misleading information with the intent of endangering national security, both of which could amount to espionage.
Johannes Chan Man-mun, an adjunct law professor at the University of Hong Kong, has expressed concerns about the proposed crimes, saying for example that academics could face repercussions for working with foreign counterparts in tracing the origin of pathogens that triggered the Covid-19 pandemic.
But Secretary for Security Chris Tang Ping-keung on Saturday called that an invalid example, saying an academic institution “does not fall under the criteria” of an external force and that the outcome of poorly done research would not be considered as deliberate misrepresentation.
“A study report might upset or scare people, but no, [it only constitutes an offence] if it truly and actually affects the government’s measures … only this would count as an intervention,” Tang told a radio programme. “I can’t see this in the example given.”
Hong Kong hits back at remarks by US consulate on national security law
Hong Kong hits back at remarks by US consulate on national security law
Justice minister Lam on the same radio show also said the interference offence did not cover the mere expression of views.
“What is being targeted now is when one calls a deer a horse, says black is white, and does it knowingly. Only then is there a chance that it constitutes an improper means [required for the offence],” he said. “We shouldn’t use exaggerated examples to cause unnecessary anxiety.”
Lam added ordinary exchanges with overseas organisations would not fall under the offence, which would require a local individual or entity to receive funding or be subject to the control of a foreign political organisation.
The government also plans to expand an existing law to cover seven types of “state secrets”, but some lawmakers have called for the public interest defence for media reporting on sensitive topics.
Lam said authorities “were actively considered” including such a defence in the bill and the conditions under which it could be invoked during a trial.
“It may be something very urgent and important that if it’s not disclosed, it may endanger public safety, threaten life and health,” he said. “It [would be something] more important than protecting state secrets. It must be a very overriding, clear and urgent matter, and there is no other way to make the public aware of some of the dangers they may face.”
Hong Kong hits back at remarks by US consulate on national security law
Hong Kong hits back at remarks by US consulate on national security law
Tang said the public interest defence might also apply during scandals, “such as the security secretary turning out to be a spy”, where many people could be harmed if they did not know the information.
He also offered assurances that officials giving off-the-record previews about policies and measures to journalists would unlikely result in the latter facing a state secrets offence, saying such information sharing was “very normal” and likely to be authorised.
The consultation paper did not specify penalties or extraterritorial application for each of the offences. Such suggestions were included in a consultation paper in 2002, when the government first attempted to pass the legislation, but dropped the plan the following year in the face of massive protests.
Lam said it was still too early to suggest penalties for the offences, which had not been finalised yet.
The minister added that not all crimes covered by the legislation would have an effect outside the city or on non-Chinese citizens, and authorities would need to conduct more research to decide the scope of application of each offence.
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‘Perceptions are important’: new Hong Kong justice secretary defends city’s rule of law
‘Perceptions are important’: new Hong Kong justice secretary defends city’s rule of law
He also confirmed that Hong Kong authorities were taking reference primarily from Britain’s National Security Act for a proposed extension of the detention period of an arrested person. The courts would likely be involved in granting any extensions, Lam added.
“I believe there will be a reasonable and fair opportunity for [an arrestee] to state his case to the court, allowing the court to make the determination,” he said.
Lam said that while it was proposed that authorities could block an arrestee’s access to certain lawyers out of national security concerns, officials would ensure defendants would not be unreasonably deprived of the fundamental right to legal assistance.
The 30-day consultation period will run until February 28.
Separately, the state Xinhua News Agency said in a commentary published on Saturday that efforts to demonise the Article 23 legislation were bound to be a one-man show that would fail to draw any support. It stressed the law would only target an “extremely small” number of people, adding that those who loved Hong Kong and the country would not fear the law but back it.
“The legislation of the Basic Law Article 23 aims to strike fear into those attempting to destroy Hong Kong’s stability, as well as the evil forces who endanger national security,” the commentary said. “So they would never think about causing trouble and doing evil in Hong Kong like they did before.”
Additional reporting by Harvey Kong
