Peaceful calls for Hong Kong independence are protected by Bill of Rights, ex-top prosecutor says
Former Hong Kong government chief prosecutor says advocating independence may not constitute offence, despite official suggestions to the contrary
A former government chief prosecutor has cast doubt on whether advocating Hong Kong independence in a peaceful way constitutes a criminal offence, saying it is protected under the city’s Bill of Rights.
The comments by Grenville Cross stand in stark contrast to those by justice minister Rimsky Yuen Kwok-keung, who warned on Saturday the government would discuss with law enforcement agencies how best to deal with those advocating separation.
Some pro-Beijing politicians have pointed to the Crimes Ordinance as a possible tool with which to ban the pro-independence Hong Kong National Party.
The controversy was fuelled by an article over the weekend in the state-run People’s Daily newspaper calling on Yuen to take legal action against the party.
Yuen said it was looking at whether the party had violated any ordinances, including the companies, societies, and crimes ordinances.
But Cross, a former director of public prosecutions, said: “Independence advocacy is common in many free societies,” citing calls in the United Kingdom for Scottish independence, Welsh independence, or Northern Ireland’s withdrawal from the union.
“All such activity is perfectly legal, provided, of course, it is conducted in a peaceful way which respects the rights of others,” added Cross, now a criminal justice analyst.
But Dr Priscilla Leung Mei-fun, a pro-Beijing legislator and a scholar at City University’s school of law, argued the Crimes Ordinance should apply in the case of the Hong Kong National Party.
“If there is only a small group of people chatting about Hong Kong independence in private, it may be no problem,” said Leung. “But now there are a group of people forming a political party that advocates independence. That is another story and the government should do something.”
Section 10 of the Crimes Ordinance says anyone who attempts or prepares any act with a seditious intention or says any seditious words is guilty of an offence.
And section nine of the ordinance defines seditious intention as an intention to “bring into hatred … or to excite disaffection … against the [government]” or excite the people “to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established”.
Former security minister Regina Ip Lau Suk-yee, now a lawmaker and an Executive Council member, said it could be considered “sedition” if the party were to recruit more members to press for independence.
But University of Hong Kong legal scholar Professor Simon Young said: “If I advocate using peaceful and lawful means then the defence in [section nine] of the Crimes Ordinance will protect me from the offence of sedition.”
Legal scholar Cheung Tat-ming, also of HKU, said Yuen’s remarks amounted to “white terror”.
And the Hong Kong National Party remained defiant. In a statement, it said: “If the government is so foolish to sue, it will allow the court a chance to rule on the constitutionality of the [Crimes Ordinance] provisions.”
