Advocating 'HK independence' a criminal offense

Song Sio-chong with careful reference to the Basic Law and criminal laws, explains the illegality of advocating separatism in the city

After Hong Kong returned to China, the call for "Hong Kong independence" became an act of secession - an offense which is mentioned in Article 23 of the Basic Law. It belongs to the classification of offenses against the security of the State. By virtue of Article 28 of the People's Republic of China's Constitution, the State shall maintain public order and suppress treasonable and other criminal activities.

In Article 1 of the Basic Law, it is also stated that the Hong Kong SAR is an inalienable part of the PRC. This means that advocating "Hong Kong independence" is prohibited.

However, the HKSAR has yet to accomplish the intended purpose of Article 23 which is to enact a local law to prohibit any act of treason, secession, sedition, subversion against the central government, or theft of state secrets and etc. Under such circumstances, it is worthwhile asking whether the criminal laws previously enacted and enforced in Hong Kong, which have been maintained for not contravening the Basic Law and have not been amended by the local legislature, will apply to such offenses.

The laws including criminal laws previously enforced and maintained since 1997 are without question applicable because it has not only been confirmed in the Sino-British Joint Declaration, but also clearly stated in Article 18(1) of the Basic Law that the laws in force in the HKSAR are the Basic Law, the laws previously in force in Hong Kong as provided for in Article 8 of the Basic Law and the laws enacted by the legislature of the HKSAR.

But the HKSAR Government has hesitated when it comes to applying these laws; the legislative bill intended to protect national security, with provisions on secession as required in Article 23, was withdrawn in 2003. Meanwhile, there are no similar provisions on secession in the Crime Ordinance and Public Order Ordinance. This is why some political radicals have been so presumptuous when handing out banners that advocate "Hong Kong independence" on university campuses.

But the separatists are totally wrong to assume their treacherous acts cannot be punished. Differences in terminology for laws maintained after 1997 and in common law before 1997 cannot prevent them from being punished if they commit such a crime. For example, if such secession activities occurred in Hong Kong before 1997, could the British colonial government deal with them? And if something could have been done before 1997, then similar actions should also be taken after 1997?

In my opinion had this occurred, the then British colonial government would have invoked three provisions: One from Section 3 of "Power to prohibit flags, etc" for public order reason and two from Section 3 of "treasonable offenses" and Sections 9-10 "sedition" of the Crime Ordinance for British national security reason, to deter such secession activities.

Section 3(3) of the Public Order Ordinance states that any person, who displays or permits the display of any flag, banner or other emblem at a public gathering or on a premise, place, vehicle, tramcar, train or vessel that is likely to cause or lead to a breach of the peace, shall be guilty of that offense.

Section 3(1)(a) of the Crime Ordinance also provides that any person who intends to depose Her Majesty from the style, honors and royal name of the Crown of the United Kingdom, or any other of Her Majesty's dominions and manifests such intentions by an overt act or by publishing any printing or writing will be guilty of a treasonable offense. In accordance with the decision by the National People's Congress Standing Committee dated Feb 23, 1997, these provisions can be applied with proper substitutions and subject to such modifications, adaptations, limitations or exceptions as are necessary to bring them into conformity with the status of Hong Kong after the PRC resumed sovereignty over Hong Kong. They also conform with the relevant provisions of the Basic Law. This means therefore, that any person who calls for "Hong Kong independence" may have committed a treasonable offense.

Lastly, according to Section 9(1) of the Crime Ordinance, calling for "Hong Kong independence" will cause discontent or disaffection among Her Majesty's subjects or inhabitants of Hong Kong or promote feelings of ill-will and enmity between different classes of the population of Hong Kong (Section 9(1)(d),(e)). Moreover, if such intentions are published, distributed, displayed or reproduced in any seditious publication (Section 10(1)(c)), then any person doing this will be guilty of sedition. In the provisions so adopted, only a minimum adaptation and substitution of "Her Majesty" will suffice.

In short, the criminal laws on "prohibition of flags, etc", on "treasonable offenses" and on "sedition" previously enforced before 1997 can be applied now in order to stop people advocating "Hong Kong independence" or secession. This is due to ingenious arrangements in the "one country, two systems" policy.

(HK Edition 10/06/2017 page5)