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Hong Kong Basic Law

Separatist leader Andy Chan cannot be charged under current Hong Kong law, city lawyers say

A top Beijing official said the HKNP leader could be prosecuted under Article 9 of the Crimes Ordinance. But local legal minds say that requires incitement to violence.

PUBLISHED : Friday, 17 August, 2018, 7:00am
UPDATED : Wednesday, 03 October, 2018, 1:28pm

Legal experts interviewed in Hong Kong on Thursday were unanimous in expressing doubts over whether a law covering sedition could be used against separatist party leader Andy Chan Ho-tin and the Foreign Correspondents’ Club, which hosted his speech, as proposed by a top Beijing official.

The heads of the barristers’ and solicitors’ bodies and an adviser to Chief Executive Carrie Lam Cheng Yuet-ngor were among those who gave this view, after Chan’s fiery speech on Tuesday – denouncing China and insisting on independence for Hong Kong – attracted condemnation from Zhang Xiaoming, the director of the State Council’s Hong Kong and Macau Affairs Office.

Zhang said Chan, leader of the Hong Kong National Party (HKNP) could be charged under Article 9 of the Crimes Ordinance and the FCC could be dragged in for helping him.

But Bar Association chairman Philip Dykes said: “Even for a seditious speech, the law has always been subject to qualification that one has to stir up discontent and violence to people who hear it.”

“Words of independence are not enough [to prosecute Chan], it’s got to go further,” Dykes, who has been vocal on constitutional and human rights matters in the city, said.

I don’t see a plausible case, unless the talk of independence was made by a person so influential that he can stir up social disorder – not someone like Chan
Ronny Tong, executive councillor

Executive councillor Ronny Tong Ka-wah said it was possible for someone to be prosecuted for sedition under Article 9.

“But applying it in the case of Chan may be inconsistent with the Bill of Rights,” he said, referring to the ordinance that protects human rights.

“I don’t see a plausible case, unless the talk of independence was made by a person so influential that he can stir up social disorder – not someone like Chan.”

Article 9 was enacted when Hong Kong was still a British colony and before the Bill of Rights came into effect in 1991. It criminalises acts or publications that may incite hatred, discontent or disaffection with the queen, and has not been used since the 1970s.

Newly elected Law Society head Chan Chak-ming, speaking in a personal capacity, was also sceptical of whether Andy Chan could be charged under the sedition law, after taking into account the Bill of Rights and precedent from British courts.

Hong Kong courts would need to decide on the matter, said Chan, who also holds an honorary position as a senior researcher at the Beijing-friendly think tank Hong Kong Vision.

In censuring Chan on Wednesday, Zhang insisted Chan and his party had “plotted, organised and carried out activities with seditious intention – they want to break up the nation”.

As for the FCC, it had “aided” Chan’s seditious intention, thus also breaking the law. Further, it did so despite “repeated advice” from the Chinese foreign ministry’s commissioner’s office in Hong Kong and the local government, he said.

Under Article 23 of the Basic Law, Hong Kong’s mini-constitution, the city must pass national security legislation that criminalises acts such as treason, secession and sedition.

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In 2002 when the government began drafting the bill, it planned to limit the offences to incitement of others to commit treason, violence or public disorder.

The then justice minister Elsie Leung Oi-sie said that to initiate proceedings against sedition by modern legal standards, the prosecution must go beyond mere speech, and “prove the offenders intend to incite violence, public unrest or disruption to public order”.

The bill was shelved in 2003 after half a million people took to the streets in protest.

Two years ago, then justice minister Rimsky Yuen Kwok-keung said his department had studied the Crimes Ordinance, the Societies Ordinance and other laws to deal with those who call for independence.

Last month, Security Minister John Lee Ka-chiu said police had proposed he ban the HKNP under the Societies Ordinance, but there was no mention of sedition.

Dykes noted that under the Crimes Ordinance any charge of sedition would have to be brought within six months of the alleged crime. But Chan had publicly called for independence since 2016 and had never been prosecuted. He said this was a “strong” sign that the government did not view Chan’s words as seditious.

The Justice Department did not reply to queries from the Post, while the Security Bureau declined to comment further.

Asked whether Zhang’s remark could pressure the government to prosecute Chan or to table a national security law, Tong said: “I can’t see him making any directive. He has his own freedom of speech but [what he said] should not be taken too seriously.”

He warned that prosecuting anyone for seditious speech could worsen social unrest. Even if the city did enact Article 23, he said, a person should only be found guilty of sedition if they incite violence.