Reactivated and Re-energised: The Sedition Offences in 'New Era' Hong Kong

Abstract

Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL) in mid-2020, been enforced as an “offence endangering national security” within the meaning of the HKNSL by the National Security department of the Hong Kong Police Force and the Department of Justice vigorously. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the HKNSL to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines the several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of the sedition-like offences from common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the HKNSL could be curtailed or circumscribed: (i) Sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights and accordingly there is nothing to be revived for enforcement; (ii) Remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalizing speech and expressive acts merely and plainly for their ascribed “intentions”; and (iii) Several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the HKNSL’s system of enforcement against persons alleged to have committed acts having those categories of “seditious intention”.

Keywords: Hong Kong, Sedition offences, National Security Law, Basic Law, Hong Kong Bill of Rights, Freedom of expression

JEL Classification: H56, K19, K30