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All you need to know about Hong Kong’s domestic security law
Covered by Beijing-imposed security law in 2020 Covered by colonial-era sedition law
Article 23 of the Basic Law, Hong Kong’s mini-constitution, says the government should enact laws “on its own” to ban any act of treason, secession, sedition, subversion against the central government, or theft of state secrets.
Hong Kong must also prevent foreign political organisations from conducting political activities in the city, and prohibit local political outfits from forming ties with their foreign counterparts.
The government first attempted to introduce the law in 2003, but backed down after a massive public protest.
What are the links to the Beijing-imposed security law?
The domestic legislation is expected to complement the Beijing-imposed national security law enacted in June 2020, and fill in other gaps in the city’s wider legal framework on security. The earlier law targets only four major offences – secession, subversion, terrorism and collusion with foreign forces.
Hong Kong national security authorities have also made arrests under the colonial-era sedition law in the Crimes Ordinance, with allegations centred on certain acts and speeches.
An overview of the proposed law
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Treason
Insurrection, incitement to mutiny and disaffection, and acts with seditious intention
Theft of state secrets and espionage
Sabotage endangering national security
External interference
REVISE CURRENT LAW
Crimes Ordinance
Treason
Apart from treason, which deals with acts such as joining an external armed force at war with China, the “misprision of treason” offence will be added. The “unlawful drilling” offence will be updated. Exemptions will be made for non-Chinese citizens.
Crimes Ordinance
Treason
Apart from treason, which deals with acts such as joining an external armed force at war with China, the “misprision of treason” offence will be added. The “unlawful drilling” offence will be updated. Exemptions will be made for non-Chinese citizens.
REVISE CURRENT LAW
Crimes Ordinance
Incitement to mutiny and disaffection
The updated offence targets conduct of knowingly inciting an armed forces member or public officer to abandon allegiance to the country or Hong Kong. Also, there is the offence of possessing a document with intent to incite mutiny or disaffection.
Acts with seditious intention
The existing offence will be reorganised into six parts, including intention to induce hatred among residents and inciting someone to commit an illegal act. Penalties for seditious acts and possessing seditious publications will be raised.
CREATE NEW LAW
Insurrection
Insurrection
The new insurrection offence will target acts such as assisting an armed forces member “with intent to prejudice” Chinese forces and “doing a violent act” in Hong Kong while “being reckless” towards public safety.
Crimes Ordinance
Incitement to mutiny and disaffection
The updated offence targets conduct of knowingly inciting an armed forces member or public officer to abandon allegiance to the country or Hong Kong. Also, there is the offence of possessing a document with intent to incite mutiny or disaffection.
Acts with seditious intention
The existing offence will be reorganised into six parts, including intention to induce hatred among residents and inciting someone to commit an illegal act. Penalties for seditious acts and possessing seditious publications will be raised.
CREATE NEW LAW
Insurrection
Insurrection
The new insurrection offence will target acts such as assisting an armed forces member “with intent to prejudice” Chinese forces and “doing a violent act” in Hong Kong while “being reckless” towards public safety.
REVISE CURRENT LAW
Official Secrets Ordinance
Theft of State Secrets
Punishable conduct includes acquisition, possession and disclosure. A conviction must meet the conditions of “without authorisation” and intent to endanger national security.
Espionage
The revised offence will target certain conduct with intent to endanger national security, such as obtaining materials “useful to an external force”, or to “collude” with them to knowingly publish misleading information.
Official Secrets Ordinance
Theft of State Secrets
Punishable conduct includes acquisition, possession and disclosure. A conviction must meet the conditions of “without authorisation” and intent to endanger national security.
Espionage
The revised offence will target certain conduct with intent to endanger national security, such as obtaining materials “useful to an external force”, or to “collude” with them to knowingly publish misleading information.
CREATE NEW LAW
Sabotage activities endangering national security Unauthorised acts relating to a computer or electronic system
The two new offences target “damaging or weakening” of infrastructure and “an act in relation to a computer” without authority and with intent to endanger national security. Doxxing of police officers was cited in the consultation paper.
Sabotage activities endangering national security Unauthorised acts relating to a computer or electronic system
The two new offences target “damaging or weakening” of infrastructure and “an act in relation to a computer” without authority and with intent to endanger national security. Doxxing of police officers was cited in the consultation paper.
REVISE CURRENT LAW
Societies Ordinance
Outlawing organisations
The update will empower the security minister to prohibit operations of a local organisation when the official “reasonably believes” it is necessary for protecting national security. CREATE NEW LAW
External interference
External interference
The offence covers conduct with the intent to interfere with national or local authorities, and in collaboration with an external force (such as receiving direction, or financial or other support).
Societies Ordinance
Outlawing organisations
The update will empower the security minister to prohibit operations of a local organisation when the official “reasonably believes” it is necessary for protecting national security. CREATE NEW LAW
External interference
External interference
The offence covers conduct with the intent to interfere with national or local authorities, and in collaboration with an external force (such as receiving direction, or financial or other support).
What constitutes a breach of the proposed external interference offence?
- Collaborating with an “external force”, and
- Having intent to interfere in Hong Kong affairs, and
- Using “improper means” such as knowingly making a material misrepresentation, using or threatening to use violence against a person, causing or threatening to cause financial loss to a person, and damaging or threatening to damage a person’s reputation
What will ‘state secrets’ cover?
“Secrets” concerning
Major policy decisions on affairs of the country/city
Construction of national defence or armed forces
Diplomatic or foreign affairs activities of the country
External affairs of Hong Kong
Economic and social development of the country/city
Technological development or scientific technology of the country/city
Activities for safeguarding national security or that of Hong Kong
Activities for investigating offences
Relationship between the central government and Hong Kong authorities
Who are the ‘external forces’ in the proposal?
As well as foreign governments, “external forces” can be authorities of an external territory and external political organisations. An entity or individual can also come under the definition if an outside authority or organisation is “able to exercise a substantial degree of control” over them.
Timeline
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Public opinion
Concerns
Groups that expressed concerns included the:
Hong Kong Bar Association
The association said authorities should strike a balance that takes into account the constitutional guarantees of human rights and the rule of law. It called for clearer definitions for the proposed offences of theft of state secrets and foreign interference and narrower scopes for crimes such as sedition and treason.
It also called for clearer definitions for the proposed offences of theft of state secrets and foreign interference, narrower scopes for crimes such as sedition and treason, as well as the entitlement of a public interest defence with a threshold that “cannot be too low”.
European Chamber of Commerce
The chamber said some of its members were concerned about “vaguely defined concepts such as ‘state secrets’ and ‘foreign interference’”. It asked the government to consider methods in which more clarity could be provided during the drafting process.
Hong Kong Journalists Association, Foreign Correspondents' Club and Hong Kong News Executives' Association
The journalist groups called on the government to offer clear provisions, such as the definition of state secrets, and introduce a public interest defence under the law.
How Article 23 legislation and the national security law will work in tandem
The new legislation will not overlap with the Beijing-decreed national security law (NSL), but officials have emphasised the two must be compatible and complement each other.
Article 7 of the NSL, for instance, mandates Hong Kong to “complete” the Basic Law obligation of making its own security legislation. Bail conditions stipulated in Article 42 of the NSL will cover the new legislation.
But the new local ordinance will stick to common law principles, unlike the Beijing-imposed NSL. Justice secretary Paul Lam said the local legislation will only stipulate maximum penalties, not minimum ones. The new law will also not provide the possibility of handing over a case to mainland authorities.
The NSL provides that the court will have to ask the chief executive to certify whether material is a state secret. Law professor Albert Chen Hung-yee has suggested the same rule will apply to trials under the new legislation.
Notable prosecutions under the 2020 national security law
Terrorism and Secession
Leon Tong Ying-kit became the first person to be charged and convicted under the national security law in 2021. He was given a nine-year sentence.
He was found guilty of terrorism and incitement to commit secession for driving his motorcycle into a group of police officers in 2020 while flying a flag that carried the slogan that called for Hong Kong’s “liberation”.
Leon Tong Ying-kit became the first person to be charged and convicted under the national security law in 2021. He was given a nine-year sentence.
He was found guilty of terrorism and incitement to commit secession for driving his motorcycle into a group of police officers in 2020 while flying a flag that carried the slogan that called for Hong Kong’s “liberation”.
Subversion
A total of 47 opposition figures, including legal scholar Benny Tai Yiu-ting and student activist Joshua Wong Chi-fung, faced a joint charge of conspiracy to subvert state power after being involved in an unofficial primary poll in 2020 to boost the opposition camp’s chances of controlling the Legislative Council by shortlisting its election candidates.
Prosecutors have described the primary as a scheme to convert Legco into a “constitutional weapon of mass destruction” against the government. The decision of a three-judge court on 16 of them who pleaded not guilty is not expected before March at the earliest. The court is expected to set dates later this year for hearing pleas for mitigation for the remaining 31, who have pleaded guilty.
A total of 47 opposition figures, including legal scholar Benny Tai Yiu-ting and student activist Joshua Wong Chi-fung, faced a joint charge of conspiracy to subvert state power after being involved in an unofficial primary poll in 2020 to boost the opposition camp’s chances of controlling the Legislative Council by shortlisting its election candidates.
Prosecutors have described the primary as a scheme to convert Legco into a “constitutional weapon of mass destruction” against the government. The decision of a three-judge court on 16 of them who pleaded not guilty is not expected before March at the earliest. The court is expected to set dates later this year for hearing pleas for mitigation for the remaining 31, who have pleaded guilty.
Collusion with foreign forces
Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily tabloid newspaper, is accused of colluding with foreign forces by calling for international sanctions against authorities, and inciting public hatred during the 2019 protests.
He is also facing one count of conspiring to publish seditious publications under the Crimes Ordinance. His hearing began on December 18 and is expected to take 80 days.
Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily tabloid newspaper, is accused of colluding with foreign forces by calling for international sanctions against authorities, and inciting public hatred during the 2019 protests.
He is also facing one count of conspiring to publish seditious publications under the Crimes Ordinance. His hearing began on December 18 and is expected to take 80 days.
Sedition
Five speech therapists behind a series of children’s books were each sentenced to 19 months in jail for the production and distribution of publications that breached Hong Kong’s colonial-era sedition law in 2022.
The books, depicting a tale of a village of sheep that must defend itself against a pack of invading wolves, were said to be a “brainwashing exercise” to indoctrinate students into wanting to separate the city from mainland China.
Five speech therapists behind a series of children’s books were each sentenced to 19 months in jail for the production and distribution of publications that breached Hong Kong’s colonial-era sedition law in 2022.
The books, depicting a tale of a village of sheep that must defend itself against a pack of invading wolves, were said to be a “brainwashing exercise” to indoctrinate students into wanting to separate the city from mainland China.
Prosecution numbers
What’s next?
The government has opted for an accelerated legislative process for Article 23 this time, saying it must go at “full speed”. Authorities unveiled the proposal on January 30 and spent 30 days gauging public views. An urgent meeting was called with top government advisers to endorse the official bill a week after the consultation wrapped up.
The first reading of the bill is taking place at a special Legco meeting with all members on March 8, followed by a four-hour bill committee meeting in the afternoon. The Post has learned that authorities are aiming to pass the bill in early April, before National Security Education Day on April 15.
Stay tuned to this multimedia explainer which will be updated when the first draft of the bill is out.
Associate Creative Director Marcelo Duhalde
Additional reporting by Jeffie Lam
Edited by John Henderson and Kieran Cash
Sources: Security Bureau, The Research Team on the Compendium of Submissions on Article 23 of the Basic Law, Hong Kong Government, SCMP