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Hong Kong News Executives’ Association
Submission on Article 23 of the Basic Law
Appendix 2
Legal opinions on sedition, police investigation powers and misprision of treason
(prepared by Dr. YAN Mei Ning, Assistant Professor, Department of Journalism, Hong
Kong Baptist University)
I.
On sedition
A. Sedition is a “political” offence
1. A working paper of the Law Commission of the United Kingdom published in 1977
called for the abolition of the common law offence of sedition and did not support
codification of the offence. It noted that prosecutions for sedition were usually
brought with overtly political motives and the offence had the implication that the
conduct in question was “political”.
2. Indeed, the common law offence of sedition has a notorious history of suppressing
political dissent and radical criticisms targeting the government, both in England
and elsewhere. An English judge highlighted in a 19th century decision the
seriousness of the offence: “Sedition is a crime against society, nearly allied to that
of treason, and it frequently precedes treason by a short interval.”
3. The legal meaning of sedition has changed over the years and the definition of the
offence is uncertain. The same judge noted: “Sedition in itself is a comprehensive
term and it embraces all those practices, whether by word, deed or writing, which
are calculated to disturb the tranquility of the State, and lead ignorant persons to
endeavour to subvert the Government and the laws of the Empire. The objects of
sedition generally are to induce discontent and insurrection and to stir up opposition
to the Government, and bring the administration of justice into contempt; and the
very tendency of sedition is to incite the people to insurrection and rebellion.”
4. Meanwhile, the last trial and acquittal of the common law offence of sedition in the
UK dated back to 1947. The last prosecution was in 1972 but the charge was
withdrawn during the trial. Lord Denning once commented that the offence is now
obsolescent, noting that the widely defined offence would inhibit too much the full
and free discussion of public affairs. The 1977 working paper opined that other
criminal offences could sufficiently handle seditious conduct and it would be better
to have the offence of sedition replaced, since its nature is largely political. The
Law Reform Commission of Canada in 1986 also recommended the offence of
sedition be repealed, noting the law was outdated and unprincipled.
B. Hong Kong’s current sedition laws are far-fetching and draconian
5. The last prosecution for sedition in Hong Kong during normal times took place
exactly half a century ago. The publisher, printer and editor of Ta Kung Pao were
prosecuted in 1952 under the 1938 Sedition Ordinance, the provisions of which
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have since been absorbed into the Crimes Ordinance.
6. The relevant provisions of the Crime Ordinance, based on the traditional concept of
sedition, are extremely far fetching. Offences stipulated in Section 10 include acts
done with a seditious intent, the uttering of seditious words, and the dealing with
seditious publication or even the possession of such publications. The meaning of a
seditious intent is stretched to cover also an intent to counsel disobedience to law or
to any lawful order, or to raise discontent or disaffection among Hong Kong
inhabitants. To prosecute for the offence of sedition, actual effects of sedition, like
resulting in disobedience or discontent, are not required. Instead, the focus is on
whether the words of the defendant do have a tendency to incite disobedience or
discontent etc., having regard to the likely effect of the words on ordinary people
and on the audience which is addressed. To convict, as noted by the Consultation
Document, the ordinance does not require an intent to incite violence on the part of
the defendant. Moreover, a seditious intent is not even needed to prosecute those
who deal with or possess seditious publications. To acquit a charge of importing a
seditious publication, one has to prove one had no reason to believe it was seditious.
Section 9(2) of the Crimes Ordinance somehow provides a safeguard by treating
expressions made with certain specified intentions only, like pointing out errors of
the government, not seditious. Yet some researches noted the word “only” means
that this safeguard would not protect those expressions made with a mixed motive.
In England, the offence of sedition was traditionally tried with a jury. The Ta Kung
Pao case was tried in the Supreme Court with a special jury. Yet the seditious
offences contained in the Crimes Ordinance carry a maximum of two years’
imprisonment for first offenders and three years for subsequent convictions, this
means the trial of which would normally be conducted in magistrate courts, i.e.
without a jury.
7. This pre-modern offence of sedition, being a relic from England, has outlived its
colonial purpose of preventing impermissible political speeches. Hong Kong was
protected from sedition laws and their adverse consequences during the last years of
British colonial rule. One decisive factor was that the UK government itself had
stopped resorting to this unpopular and controversial offence back home. Yet the
continued existence of sedition on statute books can generate from time to time a
chilling effect on freedom of expression. This is in stark contrast with the strides
which Hong Kong has made in the protection of civil liberties in recent years. The
SAR government’s intention of retaining and reviving the offence of sedition is thus
turning the clock back.
C. The American experience: sedition could cause much harm to freedom of
expression
8. Even as late as in the first few decades of the 20th century, the offence of sedition
was widely used in the US to suppress political views not favourable to the
government. In less than eighteen months, the Espionage Act of 1917 and Sedition
Act of 1918 led to arrest of nearly 2,000 persons. About 900 of them were convicted.
Many prosecutions simply involved distribution of pamphlets against the draft or
opposing US military involvement in Europe. The entire leadership of the US
Communist Party was found guilty of sedition under the Smith Act of 1940 and sent
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to prison during the 1950s. This vividly demonstrated that the offence of sedition
could pose great danger to freedom of expression even in modern times.
9. The American experience shows that the protection offered by the courts against
abuses of sedition laws can be very uncertain and highly problematic, especially
during times of crises. This is reflected by the large number of convictions
mentioned above. Moreover, the US Supreme Court in the early 20th century upheld
every conviction that reached it. A US Supreme Court judge, Justice Brennan, once
remarked, “There is considerably less to be proud about, and a good deal to be
embarrassed about, when one reflects on the shabby treatment civil liberties have
received in the United States during times of war and perceived threats to its
national security.”
D. Recent trends and views
10. Stricter requirements devised for convicting sedition: Whether in the UK, the
US or other common law jurisdictions, stricter requirements for the conviction of
sedition have been evolved. The common law has introduced a requirement of
specific intent to the offence of sedition. Before a person can be convicted of
publishing seditious words, of seditious libel, or of seditious conspiracy, he must be
shown to have intended to incite to violence, or to public disorder or disturbance,
with the intention of disturbing constituted authority. Meanwhile, the US Supreme
Court has also devised stricter tests. In Yates v. US, a 1957 decision, the Court held
that sedition could only be used against “the advocacy and teaching of concrete
action for the forcible overthrow of the Government, and not of principles divorced
from action.” The Supreme Court devised in 1959 in Brandenburg v. Ohio an even
more stringent test by adopting an imminent lawless action test: “…constitutional
guarantees of free speech and free press do not permit a state to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action, and is likely to incite or
produce such action.” Core elements, in terms of violence, imminence and direct
causation, are thus required for punishing sedition.
11. Views doubting or refuting the offence of sedition: Many US Supreme Court
judges had queried or spoken against the offence of sedition. “Every idea is an
incitement,” argued Justice Holmes in Gitlow v. People of New York. He strongly
voiced his dissent in Abrams v. US to the upholding of sedition convictions of
distributing anti-war pamphlets emphasising, “[W]e should be eternally vigilant
against attempts to check the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate interference with
the lawful and pressing purposes of the law that an immediate check is required to
save the country. I wholly disagree with the argument of the Government that the
First Amendment left the common law as to seditious libel in force.” Meanwhile,
Justice Brandeis in Whitney v. California noted: “If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence.” The
prevailing view in western democracies is that sedition is an archaic offence which
is not in line with modern democracies. The right and freedom to make dissenting
political views are now fully respected. This is due to the rising respect for
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individual rights in recent decades after WWII and the consequent closer scrutiny
of the power of the state. Indeed, since the Supreme Court decisions in Yates and
Brandenburg, only a handful of prosecutions for sedition taken place in the States.
E. The Consultation Document
12. Further problems posed: The Consultation Document proposes, in para. 4.13, to
revamp the offence of sedition which would cover incitement “to commit the
substantive offences of treason, secession or subversion; or to cause violence or
public disorder which seriously endangers the stability of the state or the HKSAR.”
13. By so defining, the government maintained, the scope of the offences is much
narrower than the current one in the Crimes Ordinance. Yet fears and worries
cannot be allayed. To begin with, the offence of sedition punishes speeches not
actions and, by its nature, targets political speeches. The natural consequence is that
future prosecutions, if any, could be politically motivated. This together with the
widely and vaguely defined offences of treason, secession and subversion, and the
elusive concepts like “violence”, “public disorder” and “stability” contained in the
definition can generate numerous landmines and stifle the free expression of ideas
and thinking, critical opinions in particular. This would definitely create a chilling
effect on freedom of expression in Hong Kong in general. This is certainly not
conducive to the nurturing of a free and open atmosphere for the Hong Kong media
and journalists working here. Moreover, it can be very worrying when one looks to
the history. In Hong Kong, the offence of sedition was previously directed towards
the media sector, as shown by Ta Kung Pao case and the passage in 1907 of the
Chinese Publication (Prevention) Ordinance, the forerunner of the 1914 Sedition
Ordinance.
14. Para. 4.14 of the Consultation Document is particularly alarming. It says that the
mere expression of views or mere reports or commentaries on views of others will
not be criminalised unless they do incite and fall into the definition of sedition. The
obvious question is how to draw the fine lines between “mere” speeches and
incitements, and between pure reporting activities and those with an intent to incite.
The paragraph does not make news reporting or news activities per se exempted
from prosecution. Nor is a defence of reasonable excuse mentioned. Reporters and
editors can thus easily fall foul of the proposed offence of sedition.
15. The Consultation Document maintains there is a need to retain the offence of
sedition so to protect the security and stability of the state and the SAR and this
practice is in line with that adopted by the most liberal and democratic jurisdictions.
The Consultation Document further argues, “The crux lies in striking a balance
between proscribing such highly damaging communications and protecting the
freedom of expression.” On top of this, the administration has repeatedly assured
the public that the scrutiny by the court of the offence would ensure the striking of a
right balance.
16. These arguments and assurances are far from sustainable. For one, prosecutions for
sedition have virtually disappeared in western democracies. For another, the
American experience vividly demonstrates the offence of sedition can have serious
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impact on civil liberties. As pointed out by Justice Brennan, one has to be
suspicious of asserted security claims. He noted “perceived threats to national
security that have motivated the sacrifice of civil liberties during times of crises are
often overblown and factually unfounded.” Moreover, history has also reminded us
that the US courts for many years did not offer enough protection to freedom of
expression in sedition cases. Indeed, whether an act is seditious depends very much
upon the judge’s subjective interpretation of facts and intention. The court therefore
plays an important role in protecting the public from the offence of sedition.
17. Nonetheless, it is far from clear whether Hong Kong courts would scrutinise
sedition charges violating international human rights standards in a vigorous
manner. This is especially so given the big setback which the Hong Kong Court of
Final Appeal has experienced in its final adjudication power because of Beijing’s
intervention in the right of abode cases. The deference attitude which the CFA has
subsequently exhibited in its flag desecration ruling also indicates that the court
attaches more importance to public order and national security requirements and the
legislative intent, both locally and nationally, than to the protection of freedom of
expression in the SAR. The conviction of three political activists last month is a
vivid illustration. Though the magistrate in charge openly doubted whether such a
case of political nature should be handled by the court, the three were tried and
convicted under the Public Order Ordinance which prohibits unauthorized rallies.
18. Furthermore, for those who experience defeats in Hong Kong courts, there is no
court of regional level in Asia, like the European Court of Human Rights in western
Europe, for them to turn to and lodge appeals. Last but not the least, Hong Kong
citizens cannot write to the United Nations Human Rights Committee requesting
investigations and redresses on their behalf any alleged breaches of the ICCPR by
the SAR government because Hong Kong has not signed the Optional Protocol to
the ICCPR which allows individual petitions.
19. The proposed offences concerning seditious publications, the Consultation
Document says, would be confined to “publications that would incite the crime of
treason, secession or subversion.” This definition of seditious publications is
somewhat narrower than that in the Crimes Ordinance. But one crucial element has
remained unchanged — these seditious publication offences are directed at those
who do not have a seditious intent. All those dealing with or possessing these
publications will be caught by the offences unless they have no knowledge or
reasonable suspicion of the seditious nature of the publications. The existence of the
offence of sedition is bad enough. The offences concerning seditious publications
are much worse in terms of their wide impact. The Consultation Document says a
defence of reasonable excuse would be provided for legitimate circumstances such
as academic research or news reporting. Yet this leads to a core issue in the
protection of the right to freedom of expression and of the press: who is to define
academic and news activities -- the government, the court or some other mechanism?
Moreover, who is allowed to conduct academic research or news activities and who
is not? The right to freedom of expression permits all of us to freely pursue such
activities with the least interference from the authorities.
20. The proposed offences concerning sedition carry much heavier penalties than
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current ones (see p.59 of the Consultation Paper). The maximum penalty of life
imprisonment is proposed for incitement to commit treason, secession or
subversion whilst dealing of seditious publications can incur a maximum of 7 years’
imprisonment and a fine of $500,000. The Consultation Document does not make it
clear whether sedition offences are to be tried with a jury. Indeed, apart from the
offence to incite treason, secession or subversion, which carries a maximum penalty
of life imprisonment, all other sedition-related offences, if no special arrangements
are provided for, are not serious enough to be tried with a jury in the Court of First
Instance and will normally be tried by a magistrate or a judge sitting alone. Another
issue of major concern would be the time limit for prosecution. The Crimes
Ordinance currently provides sedition offences have to be prosecuted within six
months after the offence is committed. Yet para. 9.5 of the Consultation Document
proposes to have this time limit removed, meaning that the government can pursue
alleged sedition-related offences which occurred a long time ago.
21. Suggestions: The administration, reacting to protests from the public, has already
indicated it will not include an offence of possessing seditious publications in future
legislation. The correct thing to do, it is submitted, is to abolish all seditious
publication offences. The main argument is that these offences are targeting acts
without any seditious intent. Of course, the arguments above have also led to a
conclusion that the best way is to abolish the offence of sedition altogether. But if
the administration is holding onto a firm view that Article 23 of the Basic Law
requires Hong Kong to legislate on sedition, then it should be done in a manner that
complies with international human rights standards, i.e. the offence can only be
applied in very limited circumstances. It is submitted that the second limb of the
proposed definition of sedition – “inciting others to cause violence or public
disorder which seriously endangers the stability of the state of the HKSAR” is
excessively broad and therefore totally unacceptable. Relevant wordings and
concepts of the Johannesburg Principles on National Security, Freedom of
Expression and Access to Information give a good reference point and should be
specifically mentioned in the offence. To begin with, prosecutions of expression to
incite have to satisfy the requirements set out in Principle 6: a) the expression is
intended to incite imminent violence; b) it is likely to incite such violence; and c)
there is a direct and immediate connection between the expression and the
likelihood or occurrence of such violence. 1 Second, the government bears the
burden of proving, with specific evidence, that these requirements are fulfilled.
Principle 8 of the Johannesburg Principles protects “mere publicity” of activities
that may threaten national security: “Expression may not be prevented or punished
merely because it transmits information issued by or about an organization that a
government has declared threatens national security or a related interest.”
Provisions along the same line should be added so as to offer protection for media
reports of political speeches, especially those made by dissidents, which could be
1
The Solicitor General, Mr. Bob Allcock, presented a paper entitled “Implementing Article 23 of the
Basic Law: the Johannesburg Principles” on December 5 at a seminar organised by the Hong Kong
Journalists Association. In his paper, Mr. Allcock strongly refutes the request to apply Principle 6 of the
Johannesburg Principles to the offence of sedition. It is submitted that many of his arguments and
examples were nonetheless based upon war time or state of emergency scenarios. Since the offence of
sedition is enforceable during normal times, a higher threshold of “likely to cause imminent violence
directly” along the line of Principle 6 should be employed. Otherwise, the net of liability would definitely
be cast too wide, thus creating a severe chilling effect on freedom of expression.
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regarded as seditious. Last but not the least, the future legislation should put a time
limit on the prosecution of sedition offences, preferably sticking to the current limit
of six months, and make it clear that defendants of all sedition offences can elect for
a jury trial.
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II.
On police investigation powers
1. Dangers posed by the proposal: The Consultation Paper proposed that an
emergency entry, search and seizure power be provided to the police for
investigating some Article 23 offences such as treason, subversion, secession and
sedition (see para. 8.4 and 8.5 and annex 1). Warrants will not be required in these
police operations. The proposal has the effect of waiving judicial scrutiny and
widening police discretions. These proposed emergency entry, search and seizure
powers by the police would remove one of the most essential protections which
law-abiding Hong Kong citizens have long enjoyed – i.e. security of homes from
arbitrary entries and searches, a right guaranteed by Article 29 of the Basic Law and
Article 17 of the ICCPR. The proposal would have immense adverse impact on the
protection of the right to privacy and freedom of expression. Homes and offices of
individuals, including those of journalists and media establishments, can be entered
and searched on the pretext of investigating crimes of treason, subversion and
sedition, etc. As a result, journalists may be harassed and have their daily routines
interrupted. Individual citizens and groups may be reluctant to speak out or talk to
the press. This would create a chilling effect on freedom of expression and severely
hinder newsgathering and other journalistic activities.
2. Government officials maintained that some current legislation does authorise
emergency entry and search without judicial warrants. It is beyond the scope for
this submission to examine the appropriateness of these provisions. Yet it is
submitted that such provisions are nonetheless related to crimes in the ordinary
sense, which are not politically sensitive, like dangerous drugs, dangerous goods,
firearms and ammunition and gambling, etc. They are neither national security
offences nor would they have any big impact on freedom of expression. The
existing section 11 of the Official Secrets Ordinance, which protects government
secrets, is the only exception. It allows a superintendent to give a written order
authorising entry and search by police without warrant if he is of the view that the
case is one of great emergency and that in the interests of China and Hong Kong
immediate action is necessary. Yet this provision is only applicable to espionage
cases and has been modelled after the Official Secret Act 1911 of the UK, which
was itself introduced by the then Secretary of State for War as a response to fears of
German espionage.
3. Nearly all of the national security offences proposed in the Consultation Document
can be traced to differences in political beliefs and would possibly have big impact
on freedom of expression and association. If the judicial scrutiny of police
investigation power, i.e. entry, search and seizure, is removed, any arbitrariness of
law enforcement and abuses of power may not be checked or prevented.
4. The impact of emergency power: The Consultation Document notes that the
proposed police investigation powers are emergency powers and should only be
exercised in case of great emergency. This gives rise to another major worry. What
is meant by emergency or great emergency? What are the differences between these
emergency powers and those measures made under the Emergency Regulations
Ordinance? Is the government introducing emergency measures curtailing
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fundamental rights and freedoms of citizens without actually declaring the state of
emergency? Would such legislation in effect make Hong Kong and its citizens to
live in a state of permanent emergency?
5. No sufficient safeguards: The Consultation Document provides that the proposed
emergency police investigation powers should only be exercised by a sufficiently
senior police officer (e.g. superintendent) when he reasonably believes that – a) a
relevant offence has been committed or is being committed; (b) unless immediate
action is taken evidence of substantial value to the investigation of the offence
would be lost; and (c) the investigation of the relevant offence would be seriously
prejudiced as a result (para. 8.5). It is submitted that the above does not meet the
requirements mentioned by the Consultation Document: “Sufficient safeguards and
oversight procedures should be built into the regulatory mechanism.” (para. 8.1)
They are only procedures and conditions for exercising the enhanced police powers,
not safeguards as described by some government officials. Indeed, the Consultation
Document does not propose any requirements of making periodic reports to the
Legislative Council on the exercise of the enhanced police investigation powers or
of conducting any independent review on the matter after the police action has
taken place. Moreover, the arrangement of allowing police superintendents to
authorize emergency entry and search is far from satisfactory. It is uncertain that the
many police superintendents available to authorize emergency entry and search
have the necessary expertise to deal with national security offences.
6. Provisions to protect journalistic materials: During the consultation period,
some government officials have indicated willingness to incorporate provisions
relating to the protection of journalistic material along the line of sections 82-88 of
the Interpretation and General Clauses Ordinance, i.e. the application for search
warrants and production orders of journalistic materials have to be made to a judge.
This tentative move is welcomed because it will protect media organizations and
journalistic materials from arbitrary police entry, search and seizure. Nonetheless,
these provisions relating to journalistic materials are relatively new, it is far from
clear whether homes of journalists, freelance journalists in particularly, and the
journalistic materials therein are subject to the same degree of protection enjoyed
by media organizations. Furthermore, so long as offices and homes of
non-journalists are subject to the possibility of emergency entry and search by the
police on the pretext of investigation of national security offences, it would create a
chilling effect on freedom of expression. Individual citizens and groups may be
reluctant to speak out or talk to the press. This would in turn have an adverse impact
on newsgathering and other journalistic activities.
7. Suggestion: It is submitted that the proposal to give police emergency investigation
powers would be a kind of overlegislation authorizing excessive power. Judicial
scrutiny in form of warrants should be retained for investigation of national security
offences since they are politically sensitive and do have enormous potential
implications for fundamental rights and freedoms.
On sedition, police investigation power and misprision of treason/MNYan/ Dec. 2002/10 of 10
III.
On misprision of treason
1. The Consultation Document proposal: The proposal seeks to make the common
law offence of misprision of treason a statutory offence. It would be an offence if
one fails to take reasonable steps within reasonable time to inform the police of the
fact that another person has committed treason (see para. 2.14)
2. Problems with the proposal: The last prosecution of misprision of treason in
England took place about two centuries ago. The UK Law Commission 1977
working paper suggested codification of this offence, applicable only during
wartime. The Law Reform Commission of Canada also recommended in 1986 that
the offence be limited to wartime. Worse still, the crime of treason is widely defined
in the Consultation Document, which could include a variety of activities.
3. Impact on the working of the media: Journalists are bound by their professional
code of ethics not to disclose confidential sources. In codifying the archaic offence
of misprision of treason, the SAR government is actually revitalising the offence.
This would place journalists in a very difficult position. This is especially so when
the offence of treason is so widely defined. Journalists are either forced to abandon
the practice of protecting confidential sources or to risk breaking the law. The
penalty of the proposed offence carries a maximum of 7 years’ imprisonment and a
fine of an unlimited amount. Moreover, there will not be a time limit for prosecution
of offences. All these would lead to an extremely inhibiting working environment
for journalists and media organizations in Hong Kong. Meanwhile, if the press and
journalists were to comply with the legal requirement and reveal their confidential
sources, they would very probably be perceived by the public as tools and
collaborators of the authorities. News sources would dry up and the safety of
journalists would be in jeopardy. As a result, the right of the public to be properly
informed on matters on public interest would be further curtailed.
4. Suggestions: This archaic offence should be abolished. The offence creates uneasy
feelings, confusions, grave concerns and distrust among Hong Kong citizens who
would find it extremely difficult to judge whether someone did commit the offence
of treason and when they should report any such incidents. Citizens, including
journalists, should be trusted to make their own judgment on whether and when to
report to the authorities. No legal obligations should be imposed. If the SAR
government insists to make misprision of treason a statutory offence, then the
offence should only be confined to wartime usages.