Hong Kong government adviser Regina Ip hits out at Article 23 bill’s definitions of ‘external forces’, saying they’re ‘very broad’ and ‘very problematic’
- Lawmakers echo concerns of business chambers and professional bodies that criteria for external forces are ‘broad’ and ‘vague’
- Regina Ip questions how a body with members from just one ‘place’ can be considered an ‘international organisation’
The discussion came as the full bill adopted largely the same definitions of “external forces” outlined in a prior consultation paper, which had been a focus of concerns raised by business chambers and foreign governments during last month’s public feedback exercise.
References to “external forces” were made throughout the legislation as the maximum penalties for some offences would be higher when collusion with an external force is involved. In acts of seditious intention, for example, the penalty can go up from seven to 10 years’ imprisonment.
Lawmakers who began scrutinising the bill clause by clause on Friday echoed concerns of business chambers and professional bodies about the criteria of external forces that have been said to be “broad” and “vague”.
Regina Ip, who was security chief in charge of a previous aborted attempt at the legislation in 2003, questioned how an organisation with members from just one “place” could be considered an “international organisation”, thus be deemed an “external force” under the new law.
“I understand the government’s policy intention, but I think the drafting is very problematic,” said Ip, who is also convenor of the government’s key decision-making Executive Council.
“Do you just want to cover Taiwan? Why not spell out ‘Taiwan’ in a clause like the Societies Ordinance, which would be more clear?”
The former minister also said a foreigner would find the wording of “the authority of a region or place of an external place” to be “hard to read and very funny”, while the terms of “related entity” and “related individual” were defined very broadly.
It is understood authorities have steered clear of using the more direct reference of “foreign forces” and opted for “external forces” to avoid Taiwan, which China sees as a part of the country to be reunited with in future, being seen as “foreign”.
The bill also states that a company can be considered an external force if its directors are “accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the organisation”.
The authorities have said references were made to Australia’s Foreign Influence Transparency Scheme Act 2018 and Singapore’s Foreign Interference (Countermeasures) Act 2021, but Ip questioned if Hong Kong officials were blindly copying from these foreign laws.
“The Australian law is about transparency, asking only for self-declaration. The Singaporean law is also different [from the Hong Kong legislation]. These are different scenarios and you cannot just copy them as is,” she said.
Legislator Lai Tung-kwok, also a former security minister, said based on the bill’s wording, any neighbourhood association would be classified as an international organisation under the new law.
Lawmaker Chan Siu-hung added that the prospect of working with “foreign forces” was causing jitters among local businesses, as “everyone” would fall under such a broad definition.
“Many Hong Kong companies are doing business in foreign countries with organisations or companies established by foreign governments,” he said.
“If [their partners] fall into [the definition of] foreign forces, Hong Kong businesspeople are a little worried.”
Jeffrey Lam Kin-fung, also an Executive Council member, urged the government to define in greater detail “international organisations”, as he questioned whether chambers of commerce might also fall under the umbrella.
Apollonia Liu Lee Ho-kei, deputy permanent secretary for security, insisted that only by including “related” entities and individuals would authorities be able to catch “proxies” acting for foreign organisations.
She also reiterated that being an external force itself would not constitute a crime without carrying out the conduct in question.
The new offence of external interference would outlaw acts that used improper means in collaboration with an outside force to, among other things, influence the central and city governments over the formulation or execution of policy.
A European Union spokesman said on Friday that the proposed bill covered an even wider range of offences than previously disclosed to the public, including “sweeping stipulations on external interference” and significantly hardened provisions on sentencing.
“The legislation risks exacerbating the erosion of fundamental freedoms in Hong Kong brought about, in particular, by the 2020 national security law,” he said.
“A bill of such far-reaching consequences requires sufficient time to allow for thorough scrutiny by both the legislature and the public.”
Johannes Hack, president of the German Chamber of Commerce, said that as the bill’s definition of “state secrets” remained materially identical to those of the mainland’s, it might become “harder” to highlight the “two systems” advantage in practice.
“Part of the unique value Hong Kong has for German stakeholders is the openness of the city and we feel the balance between openness and the desire for security needs to be well calibrated,” he added.
The Hong Kong General Chamber of Commerce said it was pleased to see the legislation was clearly defined and had included reasonable exclusions.
