New national anthem law will draw on Hong Kong’s laws protecting the Chinese flag, minister says

Patrick Nip’s comments suggest law against disrespecting March of the Volunteers could come with three-year prison terms

Hong Kong Basic Law

Tony Cheung

Published: 7:00am, 2 Nov 2017

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Hong Kong’s constitutional affairs minister said on Wednesday the government would refer to existing laws against disrespecting the Chinese flag or emblem, while drafting a new law protecting the national anthem.

That suggested anyone convicted under the new law could spend up to three years in prison.

Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen was speaking at the Legislative Council, as China’s top legislative body continued to discuss banning disrespect of the anthem in Hong Kong.

In September, the National People’s Congress Standing Committee approved the law, which came into effect on the mainland at the beginning of October. If the standing committee endorses, as expected, a plan to introduce it in Hong Kong this coming Saturday, the city’s government will need to make a local version of the law.

The standing committee discussed on Tuesday introducing a clause in the country’s Criminal Code to make dishonouring the national anthem or flag punishable by up to three years in prison.

Watch: Hong Kong soccer fans boo national anthem

At the Legco meeting on Wednesday, Civic Party lawmaker Kwok Ka-ki asked whether the Hong Kong government’s anthem law would also stipulate a three-year maximum sentence.

Nip cited the city’s National Flag and National Emblem Ordinance, on the books since 1997, which prohibits abuse of either of those symbols. It too prescribes a maximum penalty of three years in prison, and a fine of HK$50,000.

Fanny Law said the new law did not need to apply retroactively. Photo: May Tse

“When we consider the criminal offence and the relevant penalties [while making] local legislation, we will surely draw reference from the relevant provisions in the [flag and emblem] ordinance,” Nip said.

Apart from the punishment, Hong Kong lawmakers were also concerned that the proposed law would be applied retroactively, to punish people who disrespected the anthem before the local legislation was passed.

But Nip said that was unlikely.

What will China’s national anthem law mean for Hong Kong?

“The law [will be applied] in Hong Kong ... in compliance with the constitutional and legal regime of Hong Kong. It would include taking into account the relevant provision of Article 12 of the Hong Kong Bill of Rights Ordinance,” he said.

Article 12 prohibits punishing someone for something that was not a crime when they did it.

At a media gathering in Hong Kong, NPC deputy Fanny Law Fan Chiu-fun echoed Nip’s view.

Fans of Hong Kong’s soccer team often boo the national anthem. Photo: Dickson Lee

“Under Hong Kong’s common law system, law would only be applied retroactively in very exceptional situations. I don’t think [the national anthem law] needs that,” she said.

The new law has been seen as a particular threat to fans of the Hong Kong soccer team, who routinely boo the anthem, March of the Volunteers, before matches.

Additional reporting by Raymond Yeung and Stuart Lau in Beijing

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