Article 23: ‘Reasonable defence’ needed for keeping ‘seditious publications’ like Apple Daily at home, Hong Kong security chief says
Hong Kong Free Press
Hongkongers will need a “reasonable defence” for keeping “seditious publications” at home, security chief Chris Tang has said as a lawmaker brought up the now-defunct Apple Daily newspaper during a fast-tracked discussion about the city’s impending domestic security law.
Legislator Peter Koon asked whether residents would breach the law if they had publications at home that were deemed “seditious,” citing the pro-democracy Apple Daily newspaper. Its founder, media mogul Jimmy Lai, is current standing in a national security trial in which he faces foreign collusion and sedition charges.
“[Apple Daily] is certainly seditious, but what if some people intend to keep a record of such a bad newspaper and has two copies at home, would that be counted as possessing seditious publications?” Koon asked in Cantonese.
Tang said it would depend if the person accused had a “reasonable defence.”
“[If someone said] I had [the newspaper] for a long time, I didn’t know it was still there, the aim was not to incite… then I believe that could be a reasonable defence,” Tang said.
He added that the time of publication would not matter in the prosecution of possession of seditious publications.
But Ivan Leung, acting deputy principal government counsel, said Koon’s question involved ongoing legal procedures and that he would refrain from commenting. Leung said only that it did not matter if the materials in question were published prior to the enactment of the proposed law, and that whether a person has committed the offence depended on the “seditious intention.”
Over the weekend, the Legislative Council convened extra meetings totalling 16 hours to discuss the Safeguarding National Security Bill – also known as Article 23 – after the government officially introduced it to the legislature on Friday. It came just nine days after the end of a one-month public consultation period.
The bill, which Chief Executive John Lee said should be passed “at full speed,” outlines a raft of national security offences including treason, insurrection, and sabotage, with sentences of up to life imprisonment.
The bill also proposed raising the penalties for some existing offences, such as upping the maximum sentence for sedition from two years to seven years – or 10 years if the offender is found to have colluded with an external force. Meanwhile, the possession of “seditious publications” could be punished by up to three years in jail, compared to two years under the current colonial-era sedition law.
According to the proposed bill, “seditious intention” covers the incitement of hatred, contempt, or disaffection against China’s political system, its apparatuses in Hong Kong, and the city’s government and legal system.
It also includes the intention to cause hatred “amongst different classes of residents of [Hong Kong and China].”
The proposed definition replaced certain words in the existing sedition legislation, which was last amended in the 1970s when Hong Kong was still a British colony.
The bill also specified that the prosecution does not have to prove that those suspected of committing sedition offences intended to incite public disorder or violence – a deviation from other common law jurisdictions.
‘Despicable intention’
As meetings were underway in the Legislative Council, the government on Sunday issued a statement condemning the Washington-based Committee for Freedom in Hong Kong Foundation (CFHK) for “intimidating” Chinese and city officials.
The statement came after CFHK on Saturday called on the US to impose sanctions on local officials responsible for the Article 23 legislation.
“The vaguely written and broad definition of the offences would allow the Hong Kong government to target any individual or entity for exercising their rights and freedoms with egregious sentences,” CFHK said in a statement.
The government said that by requesting US sanctions, CFHK may have committed foreign collusion under the Beijing-imposed national security law, which also criminalises secession, subversion, and terrorism.
“[The CFHK] blatantly clamoured at this juncture for so-called ‘sanctions’ against dutiful officials of [China and Hong Kong] with a view to intimidating them, completely ignoring the due legislative procedures… and fully demonstrating its despicable intention,” a government spokesperson said, calling CFHK an “anti-China” organisation.
The spokesperson added that US-based activist Frances Hui, who is wanted by national security police and has a HK$1 million bounty on her head, was a core member of the CFHK, therefore showing the “necessity” of the proposed offence targeting absconders.
The Article 23 bill proposes giving powers to authorities such as cancelling absconders’ passports, as well as new offences prohibiting the flow of funds to to them.
Article 23 of the Basic Law stipulates that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing. Its legislation failed in 2003 following mass protests and it remained taboo until after the onset of the separate, Beijing-imposed security law in 2020. Pro-democracy advocates fear it could have a negative effect on civil liberties but the authorities say there is a constitutional duty to ratify it.
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