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Hong Kong could apply national anthem law retrospectively, but should it?

Richard Cullen says precedents in the UK and Australia clearly show retroactive criminal law is accepted within the common law system, but preferably in ‘exceptional’ circumstances. The test for Hong Kong will be to show such conditions exist

PUBLISHED : Tuesday, 31 October, 2017, 1:20pm
UPDATED : Tuesday, 31 October, 2017, 7:24pm

A new national anthem law came into force in mainland China on October 1. The law will be added to Annex III of the Basic Law. Hong Kong is due to apply the law, adapted for the city, fairly soon.

Most debate – implicitly accepting that the law will be applied in Hong Kong – has pivoted around the question of whether this law could be applied retroactively. This discussion has arisen, above all, because of the continuing verbal and written scorn directed at the national anthem at certain sporting events in Hong Kong. Some have argued that to discourage such behaviour, retroactive implementation of the law should be considered.

Various claims made by certain lawyers and lawyer-politicians in essence argue that retroactive laws – or retrospective laws – do not exist within the criminal laws of the common law system. It follows from this, it is said, that the national anthem law (which will apply some level of criminal sanctions to any breaches) cannot be made to apply retroactively. Unfortunately, these claims are simply wrong. The highest courts in the UK and Australia, for example, have each given the green light to retroactive criminal laws.

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In 1961, in Shaw vs Director of Public Prosecutions, the House of Lords in a unanimous decision confirmed the retroactive conviction of Shaw for the criminal offence of conspiracy to corrupt public morals. In 1933, in R vs Manley, the UK Court of Appeal also confirmed the retroactive application of criminal law. An important article in the Criminal Law Journal in 1989 stated that: “Both Manley and Shaw were found guilty of having committed crimes that were not recognised as such when they committed the acts in question.”

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In Australia, the High Court first found in favour of the retroactive application of the Commonwealth Crimes Act in 1915, in the case of R vs Kidman. This decision was unsuccessfully challenged in 1991 in Polyukchovich vs The Commonwealth. In the latter case, the High Court confirmed the validity of the Commonwealth War Crimes Amendment Act of 1988, which created new crimes that could be prosecuted more than 40 years after the relevant, previously non-criminal (in Australia), acts had been committed.

In the 1980s, the federal government in Australia passed tax laws which applied penal sanctions to certain organised, prior tax evasion activities, thought to be not caught under the existing criminal law. These laws had retroactive impact both in terms of sending convicted people to prison and collecting back taxes which may not otherwise have been payable. Several other examples of judge-made retroactive criminal law in England exist, dating back to the 17th century.

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For these reasons, if the new national anthem law were to be applied retroactively in Hong Kong, this would be broadly consistent with long-standing practice within the common law system.

Does the proposed national anthem law present exceptional circumstances that could justify retroactive action?

What, though, are the options for retroactive application? One possibility would be to state October 1 as the retroactive commencement date in the Hong Kong SAR law, this being the date when the national anthem law took effect on the mainland.

Notably less controversial would be to nominate the date from when the basic detail of the new Hong Kong law was known – for example, the publication date of the draft Hong Kong version of the new law.

All Hong Kong residents would then be on notice, with knowledge of the draft law, that the law could be applied back to the specified date. This is the “government by press release” approach used in Hong Kong over the past several years for amendments to the Stamp Duty Ordinance for real property transactions. This approach has also long been widely used in Australia by revenue authorities. It would be the more prudent way to make the law retroactive.

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Finally, although superior court precedents make it clear that retroactive criminal law is an accepted feature of the common law system, the cases typically stress that this should be applied only in exceptional circumstances. The key question which should be debated, thus, is: does the proposed national anthem law present any such exceptional circumstances that could justify retroactive application?

Richard Cullen is a visiting professor in the Faculty of Law at the University of Hong Kong