Article 23: Public interest defence proposed for some ‘state secrets’ offences in draft of new security law

Hong Kong Free Press

Hong Kong’s homegrown security law would include a public interest defence for certain offences related to the theft of state secrets, a draft of the proposed legislation has revealed.

article 23 national security law draft — A draft of Hong Kong’s homegrown national security law. Photo: Hillary Leung/HKFP.

According to the draft bill published on Friday morning, a person facing charges under three types of state secrets offences – unlawful acquisition, unlawful possession and unlawful disclosure – may invoke the defence that they had made “a specified disclosure.”

The bill defines a “specified disclosure” as one where the purpose of the disclosure is to reveal a threat to public order, safety, or health; that the government is not functioning lawfully; and where the “public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure.”

The draft of the city’s homegrown security law was brought to the Legislative Council for discussion on Friday.

Article 23 of the Basic Law states that Hong Kong must enact its own laws to criminalise acts that endanger national security. Colloquially known as Article 23, the homegrown law is separate from the Beijing-imposed national security legislation, which was enacted in 2020 following the 2019 protests and unrest.

Hong Kong Article 23 draft legislation in full [PDF]Download

During the one-month consultation period for the security law, suggestions were raised that leaks believed to be made in the public’s interest should be exempted from prosecution. Secretary for Security Chris Tang said the government would consider it.

The draft of the Safeguarding National Security Bill, however, did not state public interest exemptions for offences involving the unlawful possession of state secrets when leaving Hong Kong, unlawful disclosure of information acquired by espionage, and unlawful disclosure of information that appears to be confidential matter.

Under the unlawful disclosure of state secrets offence, the public interest exemption did not appear under a section of the draft related to the unlawful disclosure of state secrets made by a public officer or government contractor.

Up to 10 years’ jail

Those convicted of the unlawful possession of state secrets face up to five years in jail, while those convicted of unlawful disclosure of information acquired by espionage face up to 10 years in jail, according to the draft bill.

Unlawful acquisition of state secrets may carry a maximum sentence of seven years, the document states.

The introduction of the bill came just nine days after the end of a one-month public consultation period, which prompted more than 13,000 submissions, 97 per cent of which expressed support for the new security law, according to the government.

Submissions that opposed the proposals included “anti-China organisations” based overseas such as Amnesty International and Hong Kong Watch, the government said in a summary of the views collected during the consultation.

Locally, opposition to Article 23 has been muted, with the pro-democracy League of Social Democrats among the few groups to express their concerns that its legislation could have a negative impact on freedoms. With the Beijing-imposed national security law in place, under which dozens of civil society groups have collapsed and activists arrested, mass protests have effectively been barred.

In 2003, the last time Hong Kong attempted to legislate Article 23, an estimated 500,000 protesters marched to oppose the law.