Table Of ContentImplementation of
Article 23 of the Basic Law
National Security
(Legislative Provisions) Bill
Explanatory Notes
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Implementation of
Article 23 of the Basic Law
National Secur'^
(Legislative Provis'
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Explanatop' -
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Security Bureau
February 2003
An Overview
Afterextensive consultation, tlie Hong KongSpecial Administrative Region
(HKSAR) Government has drafted the National Security (Legislative
Provisions) Bill to implementArticle 23 ofthe Basic Law.
The Bill has been drafted in accordance with the principle that the HKSARshall
enact legislation on its own. In no way have Mainland legal concepts been
extended to the HKSAR, nor is there any intention to create a new ordinance.
Three existingordinances will be amended to clearlyspecify those acts
endangeringnational securityas required to beprohibited bythe Basic Law.
The Bill ftillycomplies with the International Covenant on Civil and Political
Rights(lCCPR). Existing freedoms and rights enjoyed by HKSAR residents as
guaranteed bythe Basic Lawwill continue to be protected.
In linewith usual practice, the HKSAR Governmentwill submit the Bill
to the Legislative Council afterpublishing it in the gazette. Furtherviews from
residents and organizations are welcome.
Proposed prohibition ofacts endangering national security
Treason
Treason refers to the instigation offoreign invasion, assistinga public enemy
atwarwith the People's Republic ofChina (PRC), or joiningforeign armed
forces atwarwith the PRC.
Secession
Secession refers to the use ofwar, force orserious criminal means to split
the country.
Subversion
Subversion refers to the use ofwar, force orserious criminal means
to overthrow or intimidate the Central People's Government (CPG),
orto disestablish the basic system ofthe state bysuch means.
Sedition
Sedition refers to incitingothers to committreason, subversion orsecession,
or inciting others to engage inviolent public disorderthatwould seriously
endangerthe stability ofthe PRC.
Theft ofstate secrets
Slight amendments are proposed to the existing Official Secrets Ordinance
to protect information related to national security. In particular, definitions
ofinformation on the relations between the Central Authorities and
the HKSAR, and information acquired by 'illegal access', are clearlyset out in
the Bill.
Foreign political organizations
ExistingSocieties Ordinance definitions will be used to prohibit foreign
political organizations or bodies from conducting political activities
in the HKSAR, and to prohibit political organizations or bodies ofthe HKSAR
from establishinglies with foreign political organizations orbodies.
Organizations endangering national security
The powerto proscribe organizations endangering national securit>'will
be strictly regulated. The Secretary for Securitycan exercise the power only
under stipulated conditions. A local organization will not automatically
be proscribed even ifit is subordinate to a Mainland organization prohibited
bythe Central Authorities by open decree.
Emergenq^ investigation powers
The Bill clearly specifies that only under exigent situations can a police officer
at the rank ofChiefSuperintendent or above authorizethe exercise of
emergency investigation powers.
Trial by jury
People charged with treason, secession orsubversion must be tried by jurv'.
Those charged with sedition or unlawful disclosure may opt fortrial by jury
ifthey so wish.
Protection ofhuman rights
The Bill explicitly stipulates that the interpretation, application and
enforcement ofall provisions must comply with Article 39 ofthe Basic Law,
which mandates compliance with the standards ofinternational human rights
covenants.
Main provisions ofthe Bill
Treason, subversion and secession
The provisions
Synopsis
The existing 'treason' offence is substantially narrowed, such as
abolishingthe equation ofassaukingthe sovereign with treason.
The scope ofthe offence will be clearly defined.
'War' is narrowed to declared waror open armed conflicts.
General demonstrations or riots will be excluded.
'Assisting public enemy' refers to assisting a foreign government or
foreign armed forces that are atwarwith China, and with an intent to
prejudice the position ofChina in thewar. Humanitarian aid to
ordinary peoplewill not constitute 'assisting public enemy'.
The terms 'instigate' and 'intimidate' etc. originate from existing
legislation, and are similar to those ofother common law jurisdictions.
Theywill be interpreted in accordancewith common law precedents
and principles.
'Misprision oftreason' is an existingcommon law offence, which refers
to a person who, knowing that another person has committed treason,
fails to report the offence to the proper authorities within a reasonable
time. The Bill abolishes this offence to ease public concerns.
'Serious criminal means' originates from the definition of'terrorist acts'
in the United Nations (Anti-Terrorism Measures) Ordinance, and must
be a criminal act itselfto constitute an offence.
The relevant offences are committed onlywhen the 'force' or 'serious
criminal means' used is so serious that it would seriously endanger the
stability or territorial integrity ofthe State. The scope ofthe ottence
is narrowly defined and will not alfect human rights and freedoms.
Sedition and seditious publication
The provisions
—
Sedition Aperson commits sedition ifhe
(a) incites others to commitan offence oftreason,
subversion orsecession; or
(b) incites others to engage in violent public disorderthat
would seriouslyendangerthe stabilityofthe PRC.
Possession of The existingoffence ofpossession ofseditious publication
seditious is abolished.
publication
—
Handling Aperson commits an offence ifhe
seditious
(a) publishes, sells, offers forsale, distributes ordisplays
publication
any seditious publication;
(b) prints orreproduces anyseditious publication; or
(c) imports orexports anyseditious publication,
with intent to incite others, by means ofthe publication,
to commit an offence oftreason, subversion orsecession.
'Seditious publication' means a publication that is likelyto
causethe commission ofan offence oftreason, subversion
orsecession.
Synopsis
The offence is committed only ifone incites others to seriously endanger
the security orstability ofthe State by means ofwar, the use offorce,
orserious criminal means akin to terrorist acts.
The offence of'sedition' adopts the existing common lawconcept of
'incitement'. The scope ofcriminal law is notexpanded.
Regardingseditious publication, the Bill not only abolishes the existing
offence of'possession ofseditious publication', but also substantially
narrows the existing scope of'seditious publication' by repealing
definitions that are too broad and by including the intention to commit
a crime as a necessaryelement. Human rights are fully protected.
The amendments in the Bill are more protective ofthe freedom of
speech, ofthe press, ofpublication, ofacademic research, literar\' and
artistic creation, etc. compared with existing legislation.
The offence ofunlawful disclosure
The provisions
Information A person who is or has been a public servant orgovernment
related to contractor commits an offence ifhe makes, without l—awful
Hong Kong authority, a damagingdisclosure ofany information
affairs (a) that relates to any affairs concerning the HKSARwhich
within the
are, underthe Basic Law, within the responsibility ofthe
responsibility Central Authorities; and
ofthe Central
Authorities (b) that is or has been in his possession byvirtue ofhis
position as a public servant orgovernment contractor.
A disclosure is 'damaging' ifit endangers orwould likelyto
endanger national security.
Information Aperson possessinganyinformation acquired bymeans ofillegal
acquired by access, and discloses itwithout lawful authorityand knowing—,
illegal access orhavingreasonablecauseto believe, thatthe information
(a) belongs to a categoryprotected from disclosureunder
the Official Secrets Ordinance;
(b) the disclosure ofwhich would be damaging; and
(c) is acquired by means ofillegal access
commits an offence.
'Illegal access' t—o information is limited to the following
circumstances
(a) the information comes int—o orremains in his possession
byvirtue ofan offence of
(i) unauthorized accessto computerbytelecommunications;
(ii) access to computerwith criminal ordishonest intent; or
(iii) theft, robber)' orburglary,
committed byhim in relation to the information; or
(b) the information comes into or remains in his possession in
exchange foran advantage the offeror acceptance ofwhich
is an offence ofbribery.
