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This article is extracted from “NSL Chronicles II”, an RTHK programme aiming to facilitate the general public to better understand the National Security Law. The programme is hosted by Hong Kong member of CPPCC Thomas So and Head of Centre for the Rule of Law of HKPRI CM Chan. Starting from 24 June, the English language programme will be aired every Saturday on RTHK TV31 at 8pm. Archives are available at rthk.hk, RTHK YouTube Channel and mobile apps RTHK Screen.
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It is sad to see young people being steered into a life of crime. Sadder still it is to see them being misguided into overthrowing the Government by force or other unlawful means, and as a result being sentenced to prison. Yet this is what happened in previous cases concerning the offence of subversion under Article 23 of the National Security Law (NSL).
Article 23 of the NSL stipulates that anyone who ‘incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 22 of this Law shall be guilty of an offence’. Article 22 lists out the acts that anyone organise, plans, commits, or participates in, by force or threat of force or other unlawful means with a view to subverting the State power, would be guilty of an offence., They include:
(1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;
(2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;
(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region; or
(4) attacking or damaging the premises and facilities used by the body of power of the Hong Kong Special Administrative Region to perform its duties and functions, rendering it incapable of performing its normal duties and functions.
The threshold to be convicted under the subversion offence is very high, as a few very important elements must be present: the person must be conducting the acts with a view to overthrowing the State power, and he/she needs to do it by force, by threat of force or other unlawful means.
Two groups of young people, known as the “Returning Valiant” and “Student Politicism”, called for subverting the State repeatedly online and in their street booths, even after the NSL came into effect. They were all convicted under Article 22 of the NSL.
Steve Li Kwai-wah, Chief Superintendent (National Security), explained the two categories of cases the National Security Department of the Hong Kong Police Force (NSD) handled in the past. The first was about the organisers and the planners of the crimes who, for example, using high-standard, encrypted electronic devices and concealing the inflow and outflow of their funds to stop the Police from gathering and using evidence against them in court. He described them as ‘rivals on a national level’. The second category was about the actual criminals, including young people, misguided into breaking the law by publishing false and seditious information. While feeling sorry for these young people, Li asserted that they were still responsible for their wrongdoings, in the spirit of rule of law in Hong Kong, which is a core belief of all Hong Kong people.
Edwina Lau Chi-wai, then Deputy Commissioner of Police for National Security, was the guest of the programme. On the claims that powers given to the Hong Kong Government and the Police were too great, and matters concerning the subversion offence was not very clear, she responded that national security was top priority of every nation and that the Central Authorities had an overarching responsibility for national security affairs relating to the HKSAR. This practice was a common one worldwide. For example, in the United States alone there were nearly 20 laws on safeguarding national security, with the maximum penalty of death. And under Singaporean law, suspects may be detained for two years or more without going through court hearings. She stated that the 66 articles of the NSL were very clear and recommended that all of us should study them.
She also mentioned that the claim that ‘red line not clearly drawn’ was a false proposition: all elements of offences under the NSL were clearly defined. She added that criticising the government would be fine as long as the intention was not to commit secession, subversion, or make Hong Kong independent, etc.. Those making such claim may not have read the NSL articles or may have been misguided by people smearing or slandering the NSL.
She went on to discuss the process before making prosecution in NSL cases, which was equally strict as that in other criminal cases. The Police would have to collect sufficient evidence before submitting them to the Department of Justice for consideration of prosecution. She mentioned that the Returning Valiant and Student Politicism cases both involved advocating for revolution with blood-shed and uprising, which could easily incite others, especially those who were immature. She felt deeply saddened to see young people being sent to prison.
Finally, she elaborated on the extraterritorial effect of the NSL: ‘No matter where a person or organisation is, even when not in Hong Kong, but overseas, if they have done anything that would endanger national security, we can hold them accountable under the law.’
‘I also see many people and organisations, some of whom even being fugitives, rampantly promoting so-called “bills” in foreign countries. Those are actually illegal: they are illegal “bills”. They propose their so-called constitution, which are also illegal. They do so to disrupt the Hong Kong government or Legislative Council in the performance of their duties. There's a good chance that they have already violated the subversion offence under the NSL. Once we see these things, we will start investigations right away.’
She also suggested the public to report national security information which they may come across: ‘If you see or come into contact with such information, report immediately. We have a national security hotline, which also has a WeChat public account. There is also a mobile phone number, so you can send a text message to us. You can email us as well. Never, ever take part in crimes. Once involved, whether you are following others to participate in a foreign country or in Hong Kong, you may have broken the law..,’ she concluded.
