Hong Kong’s Article 23 bill: legislation could be passed within days after lawmakers finish marathon clause-by-clause review

But a lawmaker on the bills committee suggested the legislation’s final approval could happen sooner.

“After getting through the House Committee, it will actually be the Legco president’s call to schedule the [resumption of the second and] third reading,” the lawmaker, who asked not to be named, said.

“He is entitled to call for a special full council meeting if he thinks the matter is of urgent importance.”

In the latest amendments, the government suggested renaming the offence of “external interference” by adding “endangering national security” after it to highlight any crime linked to improper means be separated from “normal international exchanges”.

Authorities also suggested redefining “public officers” regarding offences linked to state secrets and incitement to disaffection. Apart from officials, Executive Council members, lawmakers and government contractors, the amendments recommended adding “some” staff members of public organisations, as they “may have a greater chance to gain access to state secrets”.

The chief executive, alongside Exco, will be empowered to expand the scope of “public officers”. Authorities argued this “forward-looking approach” could allow for a more effective implementation of the law.

Also added was a clause that empowers the chief executive to make subsidiary legislation for safeguarding national security, offences of which can result in imprisonment of up to seven years and a maximum fine of HK$500,000 (US$63,910). A suspect can also be labelled an absconder immediately after a court warrant is issued as a six-month wait requirement was removed.

All you need to know about Hong Kong’s domestic security law

Legco held a special full meeting last Friday to get through the bill’s first reading.

It was immediately followed by a clause-by-clause scrutiny by the bills committee, which has since held back-to-back meetings for six days in a row – more than 39 hours of debate.

Some legislators on Wednesday said some clauses in the bill were “too kind” and appealed to authorities to lower the prosecution threshold for suspects accused of harassing personnel responsible for sensitive cases or their family members.

The threshold for the offence of “unlawful harassment of persons handling cases or work concerning national security” required the words, communication or actions of suspects to cause “alarm or distress or specified harm” to personnel, witnesses in a case or their family members.

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Lawmaker Lo Wai-kwok said he was worried that it would be difficult for the prosecution to prove whether the harassment had actually caused distress to a person.

“I am worried that we will be too lenient to our enemy and too strict on ourselves,” he said.

Security minster Chris Tang Ping-keung said authorities emphasised fairness and reasonableness, rather than “kindness” when the legislation was drawn up.

“In some scenarios, it is unreasonable to shout at and scold someone, so it is counted as harassment,” he added. “But in some scenarios where the environment is very noisy and emotions are running high, it can be reasonable for someone to shout,” he added.

He said it was “fair” to set up such clauses, which could give enough protection to “people handling national security cases, as well as to prevent citizens from easily breaching the law when they do not intend to”.

The domestic national security legislation was designed to target five types of offences: – treason, insurrection, theft of state secrets and espionage, sabotage endangering national security, and external interference.

It was mandated under Article 23 of the Basic Law, the city’s mini-constitution, and will complement the 2020 Beijing-imposed national security law.

Under the proposed law, an individual would commit the offence of “unlawful harassment of persons handling cases or work concerning national security” if they intended to “cause alarm or distress or specified harm” to someone who worked on such cases, or those who assisted, such as informers or witnesses, or their family members.

The legislation was designed to cover any personnel working on national security cases, including judges and lawyers, and anyone responsible for safeguarding national security in the city.

Some lawmakers were concerned that the offence would not apply outside Hong Kong, but Tang said, even if messages of harassment were sent from overseas, the courts would have the power to step in as long as some part of the actions happened in the city.

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During an examination of the provisions on restrictions on the early release of prisoners convicted of endangering national security, New People’s Party lawmaker Lai Tung-kwok, a former security secretary, questioned whether the clauses would have a retrospective effect on those who were sentenced before the bill was enacted and whether those jailed would have the opportunity to launch appeals.

The bill says offenders jailed for endangering national security cannot be granted early release unless the prisons commissioner is satisfied that the move would not be contrary to the interests of national security, regardless of whether the sentence of the prisoner “was imposed before, on or after” the new clause came into force.

But Daphne Siu Man-suen, acting law officer at the Department of Justice, insisted the clauses did not involve the question of whether the principle of retrospective effect could be adopted or not, as it only applied to criminal offences and sentence reduction was an administrative arrangement.

Before the session ended on Wednesday afternoon lawmakers and Legco’s adviser revisited some of the clauses already scrutinised.

The government confirmed that prosecutors would not have to prove a seditious intent to charge a collector of seditious publications, but Tang emphasised the offence could not be established if the individual did not have “knowledge” of its seditious nature.

Tang’s response was largely in line with an earlier government statement that called out prestigious British establishment newspaper The Times for an “extremely misleading” report on a question from Peter Koon Ho-ming, a bills committee member.

Koon had asked if retention of old copies of the now closed Apple Daily would breach the law and Tang told him that people would need a reasonable excuse, such as forgetting they had them.

Jimmy Lai Chee-ying, the founder of the tabloid, is on trial over allegations of conspiracy to print and distribute seditious publications, as well as collusion with foreign forces.

Tang said that people who once again drew attention to “state secrets” that had earlier been in the public domain could still be held liable. He explained that the secrecy of material had nothing to do with public availability.

Additional reporting by Willa Wu

Source: scmp.com