LETTER OF THE LAW

Independence Day? Probably not, but it’s no crime (yet) for some Hongkongers to dream

The city guarantees freedom of speech – whatever any official may claim

PUBLISHED : Monday, 25 April, 2016, 6:14pm
UPDATED : Monday, 25 April, 2016, 6:14pm

Realistically Hong Kong will never be independent, certainly not for the foreseeable future and probably never.

There is no doubt that, in other circumstances, we would be a viable independent country. The population of Hong Kong is larger than such United Nations members as New Zealand, Singapore, Honduras, Norway and Denmark. Our GDP is greater than each of those countries.

Independence Day is the title of a Bruce Springsteen song about a disaffected teenager who feels it is time to move away from the parental home and the ties that bind (another Springsteen song). Some of our younger, and not so young, citizens feel the same way about Hong Kong and our parental nation. They have been accused of criminality for no other reason than that they want us to be independent and have combined together to campaign for and advocate such a political development.

In such an “open” and “free” society as Hong Kong is it possible that such support and advocacy for such a hopeless political dream makes our young people criminals? I do not think so.

The PRC official who suggested this (see “Independence call to action ‘breaks law’,” SCMP Saturday April 9) claimed that such advocates had committed offences contrary to the crimes and societies ordinances and of the Basic Law and the Bill of Rights, our mini-constitution. Let us look at these questions.

Nowhere in the Basic Law is there any provision that makes advocacy of such a revolutionary move a crime

First the Basic Law. Article 1 states, clearly and unarguably that the HKSAR is an inalienable part of the PRC. So, independence is a non-starter according to that. But, nowhere in the Basic Law is there any provision that makes advocacy of such a revolutionary move a crime.

There are provisions protecting the “rights and freedoms” of HKSAR residents and other persons; maintaining the common law; guaranteeing a “high degree of autonomy;” some protection and autonomy for the passing of new laws and a guarantee that “national laws shall not be applied” in the HKSAR.

Most relevant and most important for this issue regarding a political campaign is that residents are guaranteed freedoms of speech, the press and publication; association, assembly, processions and demonstrations, (Article 27); that the Department of Justice shall prosecute (or not) “free from any interference,” (Article 63); and that all of us, including pro-independence advocates, are presumed innocent “until (perhaps that should be unless) proved guilty.”

Secondly: the Bill of Rights. It includes provisions that reinforce the rights and protections mentioned in the Basic Law, notably freedoms of opinion and expression and association; rights of peaceful assembly and the right to participate in public life. All of these would seem to be in favour of the pro-independence movement’s freedom to campaign. So, no crime here.

Thirdly: the Societies Ordinance. Like the mentioning of the above constitutional matters this is a real puzzle. There is nothing at all in this ordinance, which is mainly aimed at countering triad societies, that even hints at a crime of advocating independence. The responsibility for investigating matters covered by this ordinance lies with the securities officer appointed under it, who is answerable to the secretary for security. Perhaps these two officers should be allowed to do their jobs, “free from any interference”.

Fourthly: sedition. This is the specific colonial crime mentioned by the official. It is an offence under the Crimes Ordinance. But nothing done by the Hong Kong National Party, nor any individual or individuals, comes within the definition of this crime.

There is a list of specific ways of committing the crime. Mainly it deals with matters such as inciting the violent overthrow of the government (by members of the Communist Party when first promulgated) or inciting violence; inciting class hatred (also aimed at members of the Communist Party) and so on.

The relevant section specifically provides that criticising the government or the constitution or laws, or advocating changes lawfully or pointing out problems that are causing “ill-will and enmity” between classes of the Hong Kong population are not seditious.

Doing these things may be awkward for and unwelcome to those in authority; they are not crimes. Yet.

Andrew Raffell is a barrister who has practised criminal law in Hong Kong for over 25 years