The Chinese Government has recently enacted a piece of National Security Law (‘the Law’) on Hong Kong, establishing crimes such as ‘secession’, ‘subversion’, ‘terrorism’ and ‘collusion with foreign country’, alongside with excessive powers for scrutiny of citizens to the police. The Law has raised concerns in the international community, with UK Supreme Court President Lord Reed of Allermuir making a statement which expresses his worries on the Law over the city’s judicial independence. In this post, I focus on examining the crimes of ‘subversion’ and ‘collusion with foreign country’ in the statute, and contend how they may pose a deadly threat on human rights under the English common law.

ARTICLE 22: SUBVERSION

‘Article 22 A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:

(1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;

(2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;

(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region’

Mens Rea and Actus Reus of Subversion

The actus reus of the crime of subversion is clear: organising, planning, committing or taking part in any of the acts under subsection (1) to (3). However, such acts would only fall under the provision if it is done by force, the threat of force or other illegal means. Creatively, this provision not only prohibits any violent actions, even if they are only targeted at objects and not humans, but would also forbid any acts of civil disobedience. So, to be Martin Luther King in HK, the cost could be a maximum sentence of life imprisonment. The mens rea of the offence, in contrast, is not immediately clear. Would recklessness suffice for the offence to be committed, instead of an intentional action? It remains to be decided by the courts, but it is doubtful anything less than recklessness would suffice for criminal liability to be established under the common law.

The danger with the provision lies in the exceedingly nebulous and all-embracing wordings such as ‘undermine’, ‘interfere’, ‘disrupt’, and possibly ‘overthrow’. The Law did not fully set out and explain these concepts at all. The ill-defined terms can cause significant hampers to free speech and political rights under the common law, as people do not know what to expect. It is hard to imagine any functional democratic countries would forbid ‘undermining’ or ‘disrupting’ the government, which is the whole purpose of election and political rights such as freedom of speech—it serves to change the government, its policies and laws. Even though HK is not a full democracy, the courts recognise people’s political rights under the common law such as the freedom of assembly, of speech, religion, inter alia. (For freedom of speech, see Cho Man Kit v Broadcasting Authority [2008] HKCFI 383; Freedom of assembly is recognised in HKSAR v Leung Kwok Hung and Others [2004] HKCA 563; for the freedom of religion, see The Catholic Diocese of Hong Kong v Secretary of Justice [2011] HKCFA 71.)

The Unknown Landscape: Undermine, Interfere, Disrupt and Overthrow

Let us look at the definition of ‘undermining’ first. What would constitute ‘undermining the basic system’ of the PRC established by the Constitution under Article 22(1)? Can we safely assume that the provision is result-driven, so anyone as long as having little to no influence can advocate any ideas, as they will not undermine the system? What about those with great influence? Would a prominent figure who had a billion fans who promotes an ideal other than that of the present Constitution and status quo be ‘undermining the basic system’, which would be entirely legal save for this provision?

For Article 22(3), what could be ‘seriously interfering in, disrupting, or undermining’ the performance of duties by the relevant authorities? Would a peaceful protest of 3 million people be ‘disrupting’ or ‘undermining’ the central and HK authority? It apparently seems so. What about 2000 people? What if the 2000 people are important figures, who are able to assert their influence with their social status? Is it an objective condition, and if so, how do we measure it? By science, statistics, or the hypothetical ‘objective bystander’ test? As Oliver Holmes Jr, former Associate Justice at the US Supreme Court put it, ‘Every idea is an incitement.’ And potentially every dissenting opinion an undermining of ‘the system’.

It is also uncertain whether ‘overthrow’ necessarily entails violence or the use of force. The Oxford Dictionary defines it as ‘remove forcibly from power’, but what ‘forcibly’ is poses questions, even if we accept its definition: can one deploy non-violent means such as Gandhi with massive protests to take over or replace the power of the authorities and be counted as an act of ‘overthrowing’ under the Law? The English Courts have previously used the word ‘overthrow’ and add onto it ‘by violent means’ or ‘use arms’ for clarifications. (See case Irving v Penguin Books Ltd and another and R v The Secretary of State ex parte Lavery (unreported)) This says that there are ambiguities to the word ‘overthrow’, and possibly something can be overthrown without recourse to violence or force.

Some Practical Scenarios

Applying the first line of Article 22 in conjunction with subsections (1) to (3), one could commit a trivial and minute criminal offence, but if found done ‘with a view to subverting the State power’, could be held guilty and sentenced to a life imprisonment (Article 23). To be employing ‘unlawful means’, the provision does not require a mens rea of intention or recklessness in deploying the said illegal means. Unintentionally undertaking an illegal action could suffice under the provision, where the defendant deliberately or recklessly ‘undermines’, ‘seriously disrupts’ or ‘seriously interferes’ with the government. As a general but rebuttable principle of criminal law, a defendant’s criminal liability does not depend on his or her knowledge of the act being illegal. It is expected that under the Law, one can be jaywalking (which at most attracts a fine of 2000 HKD in HK) while yelling ‘Free Hong Kong’ or ‘Revolution of Our Times’ and be imprisoned for life. Given the current Covid-19 pandemic, the HK Government has banned most, if not all, protests from January this year, including the symbolic June Fourth Tiananmen vigil. This would make any protests ‘illegal’, and where protesters make political speeches and appeals that the HK or Chinese Government dislike, they could be accused of ‘undermining the basic system’ of China. The provision does not define the scope of ‘unlawful means’, which could catch other actions in breach of law other than criminal. Thereby, violating civil law including the law of tort, contract, land and equity would be caught by the provision. The list is endless. One could go on a strike against certain government measures or policies, which breaches the contract law in place between the employer and employee, and be charged with ‘undermining’ the government.

ARTICLES 29: COLLUSION

‘Article 29  […]; a person who requests a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the  People’ s  Republic of China, or conspires with a foreign country or  an  institution, organisation or individual outside the mainland,  Hong Kong, and Macao of the People’ s Republic of China, or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao  of  the  People’ s Republic of China, to commit any of the following acts shall be guilty of an offence:

(1)     waging a war against the People’s Republic of China, or using or threatening to use force to seriously undermine the sovereignty, unification and territorial integrity of the People’s Republic of China;

(2)     seriously disrupting the formulation and implementation of laws or policies by the Government of the Hong Kong Special Administrative Region or by the Central People’s Government, which is likely to cause serious consequences;

(3)     rigging or undermining an election in the Hong Kong Special Administrative Region, which is likely to cause serious consequences;

(4)     imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China; or

(5)     provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region, which is likely to cause serious consequences.’

Article 29 devises a new offence of ‘collusion with a foreign country’. The mens rea of the offence, as discussed above, should be either intention or recklessness. The actus reus would be making a request, or conspires with, or directly or indirectly receiving information, control, funding or other kinds of support from a foreign country or institution, and additionally performing any of the acts from Subsection (1) to (5).

Subsection (1) appears reasonably formulated, which targets only at the waging of war, and the use or threat of use of force. Nonetheless, with Subsection (2) to (5), the same unreadability and ambivalence found with Article 22 permeate with this Article. It can be leveraged by the authorities to perform political and selective prosecutions, which seriously impedes on the people’s freedom of speech and other political rights otherwise found in common law. The criterion of ‘seriously disrupting the formulation and implementation of laws or policies’ by the Government under Part (2) is ambivalent at best and draconian at worst. Anything from filibustering to protesting are caught by this. And what are ‘serious consequences’? The statute did not define the terms clearly at all. It is also noteworthy that Subsection (2), (3) and (5) do not require serious consequences to actually take place, only that it is likely to happen. How does one measure if something is likely to happen? More than an actual fantasy?

‘Serious consequences’?

What constitute serious consequences and their likelihood are subjective political judgments, impossible to be reduced to an objective, clear and predictable formulation. Would a peaceful, legal protest of 1 million people on the street which results in governments around the world imposing sanctions on China or HK be of ‘serious consequences’? How do you find the necessary causation?

Part (4) of the Article shares similar issues. The criminalisation of the act of requesting a foreign country to impose sanctions, blockade, and other ‘hostile activities’ is unseen and unprecedented in common law. Asking for a foreign country to impose sanctions should be a matter of free speech, and other countries’ right to impose sanctions are matters of the sovereign state and international law, not national law. There is also no definition for ‘hostile activities’, which appears a sweepingly board term. The prohibition on provoking hatred under Part (5) is even more amusingly vague. How do you define hatred and establish causation? Any critique of the government would inevitably causes dissatisfactions of some sort, and so people could not even criticise the government anymore. Will I breach the Law if I receive an email from a British friend (a ‘foreign individual’) who encourages me to ‘speak the truth’ and then go on to criticise the government, which involves some of the abovementioned ‘illegal actions’?

Judicial Integrity

Lord Reed is right in raising his concerns over the Law’s impact on HK’s judicial independence. Without judicial independence, there can be no rule of law. Article 44 of the Law allows the Chief Executive of HK to choose any judges he or she wishes where a case concerns the Law, from judges or deputy judges of the magistrate courts to those of the Court of Final Appeal. Such power disregards the independence of judicial appointments. More worrying still is the power of interpretation of the Law by the Standing Committee of the National People’ s Congress (Article 65), a political body of the Chinese Communist Party, allowing it to bend and twist the law however it pleases. Should it bestow wider interpretations upon the Law, people could be put into jail with the retrospective effect of the law.

The Law further prescribes that it prevails over any inconsistent laws of HK. This has effectively emasculated freedom and rights under the common law. As the Law Lords said in Regina (Rusbridger and Another) v Attorney General, ‘[f]reedom of political speech is a core value of our legal system. Without it the rule of law cannot be maintained.’ HK’s Bill of Rights Ordinance, based on the ICCPR, will likewise be undermined by the Law. The Ordinance could otherwise overrule any laws of the city which are incompatible with its provisions. Now this Law, therefore, could be in violation of the human rights provisions under the Ordinance but cannot be set aside by the judiciary.

Concluding Remarks

In enacting the National Security Law, the Chinese Government has abused the term ‘national security’. The crimes of subversion and collusion do not genuinely concern national security. Lord Bingham, delivering the leading judgment in the Belmarsh Detainees case, cited the Siracusa Principles’ definition of national security under the ICCPR: it is a threat to the life of the nation which would permit a state party’s derogation from the treaty, one that ‘(a) affects the whole of the population and either the whole or part of the territory of the state, and (b) threatens the physical integrity of the population, the political independence or the territorial integrity of the state or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.’ ‘Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under article 4.’ As Bingham noted, the ECHR further requires the threat either be actual or imminent. The said provisions on subversion and collusion extend to cover circumstances far beyond such immediate or actual danger to the life of the nation. The protests since the outbreak of Covid-19 have largely died down. The relevant parts of the Law are disproportionate to its aim.

Hong Kong has inherited the UK’s common law system and to date, it still has close and special ties with the British legal profession. But the newly introduced National Security Law is incompatible with the common law, especially the civil liberties dimension. In Wheeler v Leicester City Council, Browne-Wilkinson LJ remarked that the freedom of speech and conscience are fundamental rights in common law, so fundamental that he called them ‘constitutional rights’. The preservation of civil rights and liberties, as qualified rights, requires fine balance to be struck by the courts. The value of the common law lies precisely in this, one of judicial wisdom. This newly imposed Law takes precedence over the common law in HK, and unless retracted by the Chinese Government, it will cause irreversible damage to the rule of law and the city’s much cherished freedom and rights.

I thank Alison Young and Michael Gordon for their helpful comments on the post.

Philip Lau, currently intern at Vidler & Co Solicitors. LLB (Soton), LLM (UCL).

(Suggested citation: P. Lau, ‘Hong Kong’s New National Security Legislation: The Devil in the Details’, U.K. Const. L. Blog (31st July 2020) (available at https://ukconstitutionallaw.org/))