Attempts to smear HK ordinance bound to fail

On Saturday, Hong Kong enacted the Safeguarding National Security Ordinance and reached a historic milestone in the implementation of “one country, two systems”. Legislation to implement the Basic Law’s Article 23, which requires Hong Kong to legislate on its own to prohibit seven national security offenses, has been outstanding since 1997, and the inadequacy of the city’s defense mechanism has been a drag on its development.

Now that the legislation has been successfully implemented, Hong Kong can march forward to create a more secure and prosperous future for its people.

Most of the offenses included in the legislation, such as treason, insurrection, incitement to mutiny and acts with seditious intention, and offenses related to State secrets and espionage, are common to many common law jurisdictions. Many of these offenses have long been on Hong Kong’s statute books. They are commonly found in the national security legislation of most, if not all, Commonwealth countries.

Sabotage and external interference endangering national security are two new offenses included in the Safeguarding National Security Ordinance, but they are not new to many common law jurisdictions. Many countries have created the offense of sabotage to punish acts aimed at

destroying or causing severe damage to critical infrastructural facilities, which have far more serious consequences and should be differentiated from simpler acts of criminal damage.

The United Kingdom’s National Security Act 2023, enacted in July, defined “sabotage” as acts that are committed knowingly, and with foreign power involvement, to damage “an asset” that is “prejudicial to the safety or interests of the United Kingdom”. The UK’s legislation provides that a person who commits such an offense is liable on indictment to life imprisonment or a fine or both. Hong Kong’s new legislation has a similar provision.

Another new feature of Hong Kong’s legislation is the offense of “external interference endangering national security”, an offense that also is not new to common law jurisdictions. Wary of external threats by subtler means than invasion or attacks by armed forces, the US had in 1938 enacted the Foreign Agents Registration Act, which requires any person engaging in political activities on behalf of a foreign government, a foreign political party or a “foreign principal” to register with the Department of Justice and file detailed disclosure reports.

In 2018, Australia enacted the Foreign Influence Transparency Scheme Act to introduce a registration program for people undertaking activity “for the purpose of political or governmental influence” on behalf of a “foreign principal”.

Under Singapore’s Foreign Interference (Countermeasures) Act of 2021, the authorities may designate an entity or individual engaged in activities with political ends as “politically significant” and require such designated entities or individuals to report political donations and foreign affiliations or “disgorge” any property received from a “foreign principal”. The Singaporean government has recently started to designate influential individuals from Hong Kong as “politically significant persons”.

Hong Kong’s new ordinance has no such registration or designation requirements. It is more limited than regimes introduced in other jurisdictions in that it only criminalizes “external interference endangering national security” if all elements clearly defined in the law are present — that is, if the activity involves collusion or collaboration with an external force and employs improper means, such as threats of violence or causing financial loss, to achieve an “interference effect”.

The narrower ambit and tightly defined definitions in Hong Kong’s new ordinance, which are modeled on similar provisions in other common law jurisdictions, have not prevented the countries of the Five Eyes alliance — the United States, the United Kingdom, Canada, Australia and New Zealand — from saying that Hong Kong’s new ordinance is “sweeping”, “vaguely defined” and will “further damage the rights and freedoms enjoyed in the city”. Such accusations completely ignore the much harsher and more vague definitions in their own laws, which in some instances broaden “interference” to include “influence” and to define “influence” as something that might “affect in any way”.

On the eve of the enactment of Hong Kong’s ordinance, Australia issued a travel advisory urging its citizens to exercise “a high degree of caution” as of March 23, as Hong Kong had enacted “strict laws that can be interpreted broadly”, and that “travelers could break the law without intending to (and) may be at increased risk of detention”.

This advisory completely ignored the strict requirement under Hong Kong’s law that mens rea — that is, criminal intent — must be present before prosecution can be undertaken.

No Australian has been subjected to detention or indictment under the National Security Law for Hong Kong ever since its commencement on June 30, 2020, so the travel advisory is ridiculous. It is totally divorced from reality and likely was the outcome of lobbying by Kevin Yam Kin-fung, a Hong Kong-born Australian lawyer who, in an article he wrote that was published in the Australian Financial Review on March 18, had urged Australia to “update and upgrade its travel warnings in respect of Hong Kong, so that Australians are aware of risks to their personal liberties”.

Yam’s fearmongering piece is replete with lies and fake accusations. Contrary to Yam’s allegation, the National Security Law for Hong Kong clearly exempts individuals resident in a foreign country and required by the law of that country to serve in an armed service from the offense of “illegal drilling”. Australian businessmen are unlikely to have access to “State secrets” as tightly defined in Hong Kong’s law, much more so than the way “protected information” is defined under British law. Genuine State secrets are closely guarded, and there has not been a single prosecution of theft of official secrets in Hong Kong in the past 100 years.

Shameless people in the US and other places continue to pull out all the stops to smear Hong Kong, its legitimate law to defend the security of China and the safety of the people, and its business prospects. Their antics have drawn little support, and their efforts are doomed to fail.