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Hong Kong National Party ban

Young Hong Kong National Party radicals test limits of legal freedoms

Beijing claims Hong Kong National Party is a threat to national security, but legal experts say only actions, not words, constitute a crime

PUBLISHED : Friday, 01 April, 2016, 1:29am
UPDATED : Wednesday, 03 October, 2018, 1:23pm

Hong Kong National Party, the new kid on the radical block, is igniting debate on whether an extreme party that rejects the Basic Law and wants to turn Hong Kong into an independent republic can exist legally.

While it is not the first group to advocate independence, it is at the extreme end of the localism movement as it has not only refused to recognise the Basic Law, the city’s mini-constitution, it has pledged to use “whatever means available” for Hong Kong to break away from the mainland.

Can such a party exist in Hong Kong, a special administrative region of China, and can a Hong Kong citizen advocate independence without facing legal repercussions are among the questions that have sparked divided views.

While some argued advocating independence without taking any action was part of freedom of speech, last night Beijing’s liaison office chief Zhang Xiaoming disagreed with such a stance. In an interview with Phoenix TV, he said the founding of the new party “went beyond the realm of the freedom of expression ... and must not be tolerated”.

His comments came after Beijing’s Hong Kong and Macau Affairs Office accused the party of being in serious violation of the country’s constitution and a threat to national security.

A Hong Kong government spokesman also waded into the debate, pledging “to take action”, but did not quite say what that would mean.

The justice department’s spokeswoman declined to explain, only saying it would “maintain close liaison with the relevant law enforcement agencies”.

Under the Crimes Ordinance, anyone who utters, does or prepares to do anything with a seditious intention shall be guilty of an offence and liable for a fine of HK$5,000 and two years in jail.

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But Civic Party barrister-lawmaker Dennis Kwok said the sedition charge required proof of action, not just words, directed towards inciting persons to violence or disorder.

University of Hong Kong principal law lecturer Eric Cheung Tat-ming warned that the ordinance must not be interpreted without taking into account various other legislation, including the Basic Law and the Hong Kong Bill of Rights, that protect freedoms. “Those provisions in the Crimes Ordinance were outdated ... and their legality and constitutionality were in question,” Cheung told the Post.

Former HKU law dean Johannes Chan Man-mun also said it was impossible to prosecute someone for advocating independence without action.

Without further elaborating, HKU law professor Albert Chen Hung-yee said the provision about sedition “might not be applicable to the current situation”, but lawyer Maggie Chan Man-ki disagreed and said: “It is irresponsible to rule out the possibility of any legal liability ... because even the Bill of Rights says the exercise of [civic liberties] should not affect national security.”

Former security minister Regina Ip Lau Suk-yee warned that while words did not constitute a crime, the party could be prosecuted when it organised activities to achieve its goals.

While the Societies Ordinance is another law that could deal with acts that threaten national security, it is unlikely that the new party has applied to be registered as one, as most political groups are registered as companies.

The party’s spokesman had said they had been advised by a third party that they might not be able to register under the Companies Registry. The registry told the Post it would not comment on individual cases.

HKU law professor Simon Young told the Post that the party’s company registration depended on “whether ... seeking the independence of Hong Kong [peacefully] can be said to be not a lawful purpose”.

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He also said that under the Societies Ordinance, “it is hard to see how prohibiting the group would be necessary for national security ... [if] the party only seeks to discuss the possibility of independence and to achieve” it by peaceful means.

Cheung feared Beijing would urge Hong Kong to renew efforts to push for Article 23 legislation. Under this article, the city shall enact its own laws to prohibit any act of “treason, secession, sedition, and subversion”. The bill was shelved in 2003 when 500,000 people took to the streets to oppose it for crushing civil liberties.

Jiang Shigong, deputy director of Peking University’s Centre for Hong Kong and Macau Studies, said the HKMAO’s statement on Wednesday did not mean Beijing was pushing for Article 23.

In a separate interview with Phoenix TV, former chief executive Tung Chee-hwa dismissed the idea of Hong Kong breaking away from China as “childish”.

Additional reporting by Jeffie Lam and Gary Cheung