Hong Kong Bar Association head backs public interest defence for Article 23 domestic national security law

Anyone arrested for state secrets offences should be entitled to public interest defence but threshold ‘cannot be low’, association chairman Victor Dawes says

Secretary for Justice Paul Lam says there could be ‘extreme’ circumstances where public interest of making a disclosure could override need to maintain secret

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The Legislative Council building at Tamar. Theft of state secrets is among the offences authorities have proposed as part of a new ordinance required under Article 23. Photo: May Tse

Published: 5:27pm, 2 Feb 2024Updated: 9:01pm, 2 Feb 2024

Hong Kong Bar Association chairman Victor Dawes has suggested that anyone arrested for state secrets offences under the city’s proposed domestic national security legislation should be entitled to a public interest defence but stressed the threshold “cannot be low”.

Theft of state secrets is among the offences authorities have proposed as part of a new ordinance required under Article 23 of the Basic Law, the city’s mini-constitution. Some lawmakers earlier suggested journalists should be able to use public interest as a defence if they revealed classified materials involving significant public interest.

Senior Counsel Dawes on Friday said including a public interest defence as part of the legislation was “certainly something worth considering”, noting that similar suggestions had been made by law reform bodies in other jurisdictions for offences related to national or information security.

“My very preliminary view is that given that the offence can be committed by anyone, we should really consider whether the defence should be made available to anyone who is suspected of having committed this offence,” Dawes said before a meeting of the association, the body regulating the city’s 1,600 barristers.

Bar Association’s chairman Victor Dawes says that in some cases, matters of public interest and threats to national security may coexist to varying degrees. Photo: Elson Li

The threshold for using the defence “cannot be too low” and authorities should clearly define the burden of proof and the circumstances in which the defence applied, he argued.