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Hong Kong’s Article 23 national security law
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Legco holds a special meeting for the first Article 23 national security bill reading. Photo: Yik Yeung-man

10 things you will want to learn about Hong Kong’s new Article 23 legislation and how it may affect you

  • Maximum penalties under the 212-page bill range from three months for small offences to life imprisonment for bigger crimes like treason, insurrection
  • ‘Relevant absconders’ may face sanctions, such as having their Hong Kong SAR passports cancelled, losing all permissions, registrations necessary for business or employment

Hong Kong’s Legislative Council began scrutinising a full draft of the Safeguarding National Security Bill that the government published early Friday.

The 212-page legislative bill has often been referred to as Article 23 legislation as its mandate is based on that section of Hong Kong’s mini-constitution, the Basic Law.

It is likely to be passed within weeks by Legco, a legislature now led by “patriots” under changed governing rules of recent years.

Once passed, the new law will be in force alongside the Beijing-decreed national security law imposed in 2020.

Much of the contents of the bill was covered in a consultation document issued earlier but the proposed law now contains penalties and specifies in greater detail the offences.

Here are the 10 things you should know about the bill.

1. 39 offences and wide range of penalties

The proposed legislation spans 39 crimes covering broadly five types of offences as highlighted in the consultation paper: treason; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; sabotage; external interference; and theft of state secrets and espionage.

Other offences introduced include those to deter absconding of arrestees and harassment of officers whose work concerns national security.

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There are different ranges of maximum penalties, from three months for small offences, such as being careless with state secrets, for example, to life imprisonment for bigger ones.

The crime of external interference, for instance, can attract maximum jail time of 14 years. Committing an act in relation to a computer or electronic system with the intent to endanger national security can lead to a jail term of 20 years.

2. Four offences can lead to life imprisonment

Life imprisonment is listed as the maximum penalty for four offences: treason, insurrection, inciting members of the Chinese armed forces to mutiny and colluding with external forces to damage public infrastructure. The last offence can also be applied to offenders outside Hong Kong.

In the consultation document, the part on sabotage activities referred to the 2019 protests or the “colour revolution”, citing how demonstrators vandalised and caused massive damage to MTR stations and other public facilities.

The 212-page national security bill is likely to be passed within weeks by Legco. Photo: Dickson Lee

3. Seven types of state secrets cover local information

The “state secrets” spelled out by the bill cover seven types of secrets and do not necessarily have to be about “national” issues directly to do with mainland China or the central government. Information on economic or social development of Hong Kong can be considered of national interest and therefore be a “state secret” if an unauthorised disclosure of it can risk endangering national security.

The definition adopted in the bill is almost identical to that first proposed in the consultation paper, which had sparked concerns in the business sector as they felt it was too broad. Some of these “secrets” cover confidential information about major policy decisions in the city, about diplomatic affairs of the city and about its science and technological capabilities.

Hong Kong’s Article 23 security law needs public interest defence: lawyers

4. Public interest defence must meet six elements

A public interest defence, in the name of “specified disclosure”, is provided for those charged with unlawful acquisition, possession or disclosure of state secrets, but the burden of proof will rest on the defendants, and there are prescribed boundaries for the defence to apply.

The disclosure must concern either circumstances where the government’s function is seriously affected, or there is a serious threat to public order, safety or health.

The public interest behind the need to reveal the information must also “manifestly outweigh” that interest of a non-disclosure. The bill spells out six conditions for such consideration, including whether the disclosure is made under an emergency.

5. Measures to cut off financial means of absconders

A runaway suspect charged with security offences can face a set of sanctions to be introduced under the new law once he is identified as a “relevant absconder”, such as losing all permissions and registrations necessary for business or employment, having his Hong Kong SAR passport cancelled, and being removed from all office of company directors.

Secretary for Security Chris Tang Ping-keung has attended Legco special meeting. Photo: Dickson Lee

6. Court approval needed for lawyer access restriction, longer detention

Police officers of certain rank can apply to a magistrate to ban an arrestee from consulting any lawyers in the first 48 hours after the suspect is taken into custody if such consultation might imperil national security or obstruct the course of justice. The officer can also apply to ban the arrestee to consult “particular” lawyers or all lawyers from a certain law firm on the same grounds.

Similarly, the officer may also apply to extend the detention period for no longer than 14 days after the first 48 hours. The restriction can be applied to people who are under investigation on suspicion of having committed an offence harming national security, regardless of whether they have been arrested by the police.

7. Early release ruled out for prisoners sentenced for security offences

Prisoners serving terms for offences endangering national security can be blocked from receiving a sentence remission under law amendments proposed in the bill. The commissioner of correctional services will be responsible for making the decision, which will be reviewed annually.

The change may affect all current and future prisoners, including those on trial, such as former Apple Daily boss Jimmy Lai Chee-ying, as the new rule will apply “whether the sentence … was imposed before, on or after” the new clause comes into force.

More ‘smears’ by ‘external forces’ expected over Hong Kong security law: Chris Tang

8. ‘Related individuals’ can be an external force

The bill’s definition of “external forces” falls largely in line with that proposed in the consultation paper, which has previously drawn questions from business chambers and professional bodies.

Individuals and entities can be considered external forces when they are under an obligation to act in accordance with the directions, instructions or wishes of a foreign authority. The government said in a brief to the legislature that solely meeting the definition will not cause a person to commit an offence.

9. Chief executive can certify a state secret on his own motion

The chief executive has new powers. He may issue a certificate to certify whether an act or matter involves national security or whether any material involves state secrets. Such a certificate can be issued outside court proceedings on the city chief’s “own motion”, according to the bill.

The arrangement is similar to that in the Beijing-imposed national security law.

Hong Kong ‘safeguarding national security’ bill set for Legco scrutiny on Friday

10. Extraterritorial effect applies to 18 offences

Out of the 39 offences listed in the bill, 18 have an extraterritorial effect to a varying extent. For instance, a body of persons that has “a place of business in Hong Kong” can be charged with unlawful disclosure of state secrets even if the conduct is committed outside the city.

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