Chinese national anthem

Two years to investigate abuse against China’s national anthem under proposed Hong Kong law is too much time, top lawyers say

  • Time limit should be shortened to within a year of when offence took place, according to criminal lawyer
  • Constitutional and Mainland Affairs Bureau says the bill has the right balance
PUBLISHED : Friday, 11 January, 2019, 8:00am
UPDATED : Friday, 11 January, 2019, 12:48pm

Giving law enforcers two years to investigate abuses of the national anthem under a proposed law is too much time, according to two top criminal lawyers.

Former deputy director of public prosecutions John Reading and veteran criminal lawyer Stephen Hung Wan-shun were responding to the bill the government unveiled on Wednesday which seeks to criminalise any public abuse of March of the Volunteers.

Under the bill, the authorities would have up to two years from the time of the incident to decide whether to lay charges against offenders.

If alleged wrongdoing came to light at a later date but the timing of it was unclear, police could also lay charges within one year of the discovery.

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Prosecutors typically are required to press charges for offences heard by magistrates’ courts within six months, while there is no time limit for more serious crimes, such as the public nuisances charges Occupy leaders are facing or bribery related offences.

Secretary for Constitutional and Mainland Affairs Patrick Nip Tak-kuen said there was a practical need for a lengthier period before the authorities decided on charges.

“In some cases involving a large crowd, police may need more time to investigate,” Nip said on Thursday, referring to spectators booing the national anthem before the start of a soccer match.

“Also, when some [abusive acts] are published via social media or foreign IP addresses, it may take longer to collect evidence.”

Reading, however, said two years was too long when it came to charging those who abused the national anthem.

“For charging and summoning offenders, that could easily be done,” he said. “It’s a bit unusual.”

He also rejected the government’s argument that authorities needed time to deal with social media hosts, saying Hong Kong courts may not have jurisdiction anyway if the alleged abuse was broadcast overseas.

Hung, a veteran criminal lawyer, also doubted the two-year period was really necessary.

“The existing National Flag and National Emblem Ordinance doesn’t have a similar [relaxed prosecution] rule,” Hung said. “We don’t want the offence to be viewed as retribution … offenders caught under the radar and only charged when prosecutors wanted.”

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He said the time limit should be shortened to within a year of when the offence took place.

Civic Party lawmaker Tanya Chan said her party would move amendments to delete the two-year time frame, highlighting how an investigation into localist lawmaker Cheng Chung-tai was completed well within six months. Cheng was in 2017 fined HK$5,000 (US$641) for desecrating small Chinese and Hong Kong flags in the Legislative Council the previous year by flipping them over.

In response, the Constitutional and Mainland Affairs Bureau said the bill already had the right balance.

There are similar time extensions in at least five ordinances, although they are typically related to white collar crime. For instance, prosecutors can bring a case under the Securities and Futures Ordinance within three years, or one to two years for some relatively minor offences under the Prevention of Bribery Ordinance.

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Companies can also be sued within three years for producing substandard goods under the Toys and Children’s Products Safety Ordinance.

Offenders of the proposed national anthem law could face a maximum three years in jail and a fine of HK$50,000.