Published: 11:05, February 14, 2024 | Updated: 19:52, February 14, 2024
Article 23 legislation: Effective sedition law vital for national security
By Grenville Cross

The offense of sedition is an established feature of Hong Kong’s legal landscape. Whereas the Sedition Ordinance was enacted by the British in 1938, it was incorporated into the Crimes Ordinance in 1971. The Crimes Ordinance criminalizes uttering seditious words, committing an act with seditious intent, publishing seditious matter, and, as a separate offense, possessing seditious publications (Section 10).

A seditious intent can take various forms. They include bringing the administration of justice into hatred or contempt, raising discontent or disaffection (disloyalty) among the population, promoting feelings of ill-will among different classes, and inciting violence (Section 9). Responsible citizens recognize that such conduct cannot possibly be tolerated, because, apart from anything else, it imperils social harmony.

Although the Basic Law provides that residents “shall have freedom of speech, of the press and of publication” (Art.27), there are limits, as acknowledged internationally. By virtue of the Basic Law, the International Covenant on Civil and Political Rights (domesticated through the Hong Kong Bill of Rights) applies in Hong Kong (Art.39), and it recognizes these rights are not absolute. They may be subject to necessary legal restrictions, for example, “for the protection of national security or of public order” (Art.19).      

As the sedition offense involves curbing what people can say or publish, safeguards exist to prevent abuse. An act, speech or publication will not, for example, be regarded as seditious simply because it indicates “errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects” (Section 9). Other well-intentioned conduct is also not prosecutable.

A prosecution for sedition, moreover, requires the consent of the Secretary for Justice (Section 11), meaning it must be considered at the highest level. There is also a stipulation, now anachronistic, that nobody can be convicted “on the uncorroborated testimony of one witness” (Section 12). 

As seditious activity can have serious consequences, it is surprising the maximum penalties are so low.  Sedition is punishable on a first conviction, with a fine of HK$5,000 and two years’ imprisonment, rising to three years’ imprisonment on a subsequent conviction. Somebody who possesses a seditious publication without lawful excuse is treated even more leniently, and faces only a fine of HK$2,000 and one year’s imprisonment, which increases to two years’ imprisonment if there is reoffending.

Although freedom of expression, including the right to dissent, is an integral part of modern Hong Kong, the city must also protect itself from existential threats

One of the purposes of criminal law is to prevent crime, and the current sentencing levels have little (if any) deterrent effect, as the spate of recent prosecutions has shown.  If the legislature does not impose realistic penalties, the offenses will not be taken seriously by anybody considering seditious activities. A comparison with maximum sentences for other offenses is instructive, and illustrates the inadequacy.

Somebody who, for example, cheats at gambling, or lives on the earnings of prostitution, faces up to 10 years’ imprisonment, yet sedition is treated far less seriously, which cannot be right. The sort of offenses that attract a maximum of two years’ imprisonment are escaping from lawful custody and managing an unregistered clinic, and it is irrational for sedition, given its gravity, to carry the same penalty.

The case for a drastic increase in the maximum penalty is overwhelming, and there is no need to differentiate between seditious conduct and possession of seditious publications. One maximum penalty would suffice for both, and if the evidence showed a lesser culpability, the court could simply adjust the defendant’s sentence downward. Although the consultation paper does not suggest a specific penalty, it recommends “raising the penalties,” which is logical.

If the sentence for both sedition offenses were to be raised sevenfold to 14 years’ imprisonment, this would place them on a par with, for example, the sentences for blackmail and conspiracy to defraud. It would also transmit the unequivocal message that the sedition laws cannot be trifled with, and must be taken seriously. In local jurisprudence, it is virtually unknown for an offense provision to contain a minimum sentence for its breach, and it is unnecessary in the current exercise. Once the maximum sentence is set, it would be for a court to assess the criminality and fashion its punishment accordingly, which is how things generally operate.

In the United States, seditious conspiracy is punishable with up to 20 years’ imprisonment. As in Hong Kong, the offense prohibits incitement to violence and the promotion of disaffection. Although it is rarely used, anybody convicted of seditious conspiracy faces condign punishment. On May 25, 2023, for example, two Oath Keepers, Stewart Rhodes and Kelly Meggs, were sentenced, respectively, to 18 and 12 years’ imprisonment for seditious conspiracy, arising out of the events at the US Capitol in 2021. The judge, Amit Mehta, told them seditious conspiracy was “among the most serious crimes an American can commit.”

The existing sedition law remains workable, although it needs modernizing (including its references to “Her Majesty”). Moreover, the attempts in 2019-20 to destroy the “one country, two systems” policy have helped to identify the best way forward. The government recommends the existing definitions of a seditious intention be developed to include the incitement of hatred against the fundamental system of the State, the state organs (as constitutionally provided for), the CPG’s representative offices in Hong Kong, and Hong Kong’s constitutional order (executive, legislative and judicial). The idea is to build on the existing law, eliminate loopholes and ensure protections, and this should result in a safer environment, which is in everybody’s interest.

Although there have been queries over whether the proposals cover the Communist Party of China, the PRC Constitution provides the answer. It states, “The socialist system is the fundamental system of the People's Republic of China,” and “Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics” (Art.1). The CPC, therefore, leads the socialist system, which is the State’s fundamental system, and, as an integral part of that system, the incitement of hatred against it will be criminalized if the proposals are enacted. 

Although concerns have been aired over whether people might be prosecuted for simply criticizing the CPC, these are unfounded. The people recently prosecuted for sedition have all strayed well beyond mere criticism, and have invited hatred of the central authorities, the Hong Kong Special Administrative Region government, or the administration of justice. If their criticisms were in good faith, they would have been acquitted (given the Section 9 exemptions).  Nothing in the consultation paper alters this situation in any way, which shows the ICCPR is being fully respected.

Although, at present, nobody can be convicted of a sedition offense on the uncorroborated evidence of one witness, this is no longer tenable. Such restrictions are a throwback to a bygone age, when they often prevented just outcomes. Until 1995, for example, when it was abolished, a judge had to warn a jury it was dangerous to convict a defendant on the evidence of a child, however credible, and this produced injustice. Modern thinking recognizes that it is the quality of the evidence that counts, not the quantity, and, if a witness in a sedition trial is considered truthful, there is no reason why a court should not convict on the basis of their testimony, even without corroboration.

In any event, the National Security Law for Hong Kong (NSL) states that a prosecution for an offense endangering national security can only be instituted with the written consent of the Secretary for Justice (Art.41), which is a valuable safeguard. This includes sedition, meaning the identical requirement in the Crimes Ordinance (Section 11) does not need to be replicated in the revised legislation.

What will, however, need to be included in the sedition law (as with the other proposed offenses) is an extraterritorial provision, meaning that those who engage in seditious activity abroad that affects Hong Kong are prosecutable, whether or not permanent residents. This already exists with the four sets of NSL offenses (Articles 37 & 38), and its legitimacy derives from the “protective principle of criminal jurisdiction,” a rule of international law.

The protective principle allows a State to assert jurisdiction over a person whose conduct outside its boundaries threatens its vital interests, including its security or governmental functions. The principle, well known in the US, can be asserted without regard to where or by whom the act is committed. It is defensive, and there can be no legitimate objection to Hong Kong acting to protect itself from seditious activities directed at it by hostile actors operating elsewhere. The existence of such a power will also hopefully help to deter at least some potential seditionists.

Although freedom of expression, including the right to dissent, is an integral part of modern Hong Kong, the city must also protect itself from existential threats. National security, internal stability and social harmony can all be endangered by unwise verbal or written communications, and no responsible society can disregard this possibility. Although some places, like the United Kingdom, have repackaged their sedition laws, basically for cosmetic purposes, they have not ultimately deprived themselves of the ability to safeguard their communities from hate speech, inflammatory utterances, and communications that endanger the State and the rule of law.

Although the Hong Kong SAR government’s updating of the sedition law is long overdue, its proposals are constructive and workable. They demonstrate how a proper balance can be achieved between the rights associated with freedom of expression and the protection of the core interests of the State and the Region. As such, they deserve to receive a fair wind.  

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.