Advertisement
Hong Kong politics
OpinionComment
Grenville Cross
Grenville Cross

Opinion | With Article 23 national security law, Hong Kong people have nothing to fear

  • Most of the heavy lifting was done when the 2020 national security law was enacted but unfinished business remains
  • The proposed offences will only be prosecutable if the traditional criteria are satisfied. The proposals are defensive in nature, and recognise that suspects must be properly treated

Reading Time:4 minutes
Why you can trust SCMP
16
A man watches the press conference of Chief Executive John Lee Ka-chiu on the legislation of Article 23, on TV in Hong Kong’s Tai Koo district, on January 30. Photo: Jelly Tse
Grenville Cross
In China, as in the West, national security is a high priority. In its Article 23 legislation consultation paper, the Hong Kong government called it “the fundamental prerequisite for the survival of a state”. That Beijing has entrusted Hong Kong and Macau to enact their own is a remarkable show of faith.
Advertisement
While Macau enacted its Article 23 legislation in 2009, Hong Kong was unable to follow suit, despite an attempt in 2003. Its constitutional obligation was not discharged, and it became China’s Achilles’ heel. This situation was ruthlessly exploited in the social disturbances of 2019-20, when “one country, two systems” was in real peril.
In 2020, when Beijing enacted the national security law for Hong Kong, it showed due deference to the Basic Law. Its approach was minimalist, only enacting the Article 23 laws immediately required to protect the city, namely, secession and subversion. Now, the Hong Kong government is forging ahead. Its consultation paper describes national security as “a top priority for any state”, and its proposals are defensive in nature.

Apart from modernising the treason and sedition laws and enhancing their effectiveness, the government envisages new offences. They cover insurrection (serious civil disobedience), incitement to mutiny and disaffection, espionage (including spying) and theft of state secrets (defined in detail), and sabotage, including attacks on public infrastructure and misuse of computer technology.

The proposed offence of “doing an act in relation to a computer or electronic system without lawful authority and endangering national security” is novel but not unfamiliar. It derives from the UK’s Computer Misuse Act 1990. It would, for example, cover situations where a hacker stole classified national security information, or somebody gained control over strategic governmental electronic systems.

Advertisement

The proposed offences will, moreover, only be prosecutable if the traditional criteria are satisfied. As with other serious offences, there will need to be both a criminal act and a criminal intention. A prosecution will only result if the evidence affords a reasonable prospect of conviction, and it is in the public interest. Citizens and companies going about their everyday business have nothing to fear.

Advertisement