Stiffer penalties for sedition under Hong Kong’s new Article 23 bill and no need to prove ‘incitement to violence’ for accused to be found guilty
- Maximum penalties will more than triple current two years of imprisonment to seven years under proposed law
- Offence of seditious intention will also no longer require the element of incitement of violence to constitute a crime under new legislation
Stiffer maximum penalties for the offence of sedition that will more than triple the current two years of imprisonment to seven years are being proposed under Hong Kong’s new domestic security bill.
The offence of seditious intention will also no longer require the element of incitement of violence to constitute a crime, according to the new legislation that was presented to the Legislative Council on Friday for scrutiny by lawmakers.
Under the proposed law, a person with seditious intention is defined as one inciting hatred or disaffection on the public officers of Hong Kong or offices of mainland China’s central authorities in the city.
They could also have an intention to cause “hatred or enmity” among different residents of Hong Kong or those of different regions of China.
But unlike the current sedition offence listed under the Crimes Ordinance, which includes “[inciting] persons to violence” as one of the criteria for seditious intention, the proposed law states explicitly that “proof of intention to incite public disorder or to incite violence not necessary”.
In a consultation document before the proposed law was gazetted on Friday, the government had said that offenders might not have incited others to commit violence but the “cumulative effects” of incitement was that “any large-scale riots once commenced will spiral out of control”.
Offenders can be sentenced to a maximum penalty of seven years in jail under the proposed security legislation, compared with two years under the current law.
Those found to be “colluding with an external force” for seditious intention will be subject to a maximum 10 years in prison.
Another new element introduced by the bill is that anyone possessing a publication that has seditious intention can also be found guilty of committing an offence that may lead to a maximum of three years’ imprisonment.
The new bill is part of the requirement of protecting national security as specified in Article 23 of the Basic Law, the city’s mini-constitution. It is supposed to be used in tandem with the Beijing-imposed national security law that came into force in June 2020.
But even with the Beijing-imposed legislation, Hong Kong’s national security police had been turning to sedition charges under the colonial-era ordinance in the past few years, with allegations focusing on a list of acts and speech deemed problematic by authorities.
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A landmark case involved pro-democracy activist Tam Tak-chi, known as “Fast Beat” in his career as a radio DJ, who was the first person to be charged with sedition since 1967.
He was sentenced to 40 months in jail for seven counts of uttering seditious words in 2022. On Thursday, the Court of Appeal rejected an appeal to overturn Tam’s conviction, concluding that the law should adopt a broad interpretation of seditious intention even when violence was not inflicted.
Another notable case centred on a series of children’s books with politically provocative depictions of the mainland. Five speech therapists behind the books were each sentenced to 19 months on sedition charges in 2022.
In another case, former Stand News senior editors Chung Pui-kuen and Patrick Lam were accused of conspiring to publish and reproduce seditious publications. The now-defunct news website was accused of publishing 17 articles in bid to disparage the central government, the city administration and the Beijing-decreed security law.
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The court delayed its verdict, originally expected to be delivered last November, with no new date given.
Grenville Cross, a former director of public prosecutions, supported the raising of penalties in the proposed law.
“The current sedition penalties are woefully inadequate, and have little deterrent effect,” Cross said.
He said offences such as cheating at gambling or living on the earnings of prostitution of others were punishable with 10 years’ imprisonment.
“I am a little surprised that the maximum for the very serious offence of sedition is to be only seven years’ imprisonment; a higher maximum would have been justified,” he said.
But human rights lawyer Mark Daly said UN experts had stated that the offence should be repealed, as there had been cases of misuse of sedition in other jurisdictions.
He said that increasing the punishment to seven or 10 years was “inconsistent” with international developments.
