HK's Article 23: Clarity Or Confusion?

The parliamentary draftsmen responsible for the Treason Act, not content with particularizing what was meant by“compassing or imagining the Death or Destruction of the Queen, or in compassing or imagining any bodily Harm tending to the Death or Destruction, maiming or wounding, of the Queen,” invested the offense with a far broader ambit of activity when it spoke of breaking or endangering the public peace as a distinct means of committing treason.

Despite the fact that my client only fired a starting pistol, which makes a sharp crack but does not discharge a projectile, the wording of the Act does not distinguish between a harmless and a lethal weapon.

Talk about overegging the pudding .

The point is that a broadly or loosely drafted item of legislation leaves its interpretation open to the administration, so that all too often the court's discretion is circumscribed.

A central characteristic of an equitable system of justice is that there must be clarity in the law, so that those subject to it can be sure what is permitted and what is prohibited. This is a cardinal principle of the common law.

The legal principle that“ignorance of the law is no defense” is meaningless if the meaning of the law's provisions are obscure or expressed in language beyond the comprehension of the average subject.

As envisaged in the government's consultation proposals, it is right and proper that Hong Kong should have provision in the Basic Law, in principle, to guard against treason; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; sabotage; foreign interference; theft of state secrets and espionage.

However, the reference to foreign interference strikes me as entirely otiose.“Foreign interference” can only have criminal significance if it involves one of the specific offenses, such as seditious intention or theft of state secrets.

When the respective governments of country A criticize country B for some purely domestic activity, we are accustomed to B's foreign minister hurling accusations of interference in matters that are none of their concern.

By way of contrast, where the government of country A pays X, a subject of country B to do something contrary to the national security of country B, the criminality lies in the specific offense committed by X, be it theft of state secrets, espionage or whatever that X is guilty of.

Using a generic description of foreign interference adds nothing by way of clarification to a specific offense but using it as a standalone offense only creates uncertainty, confusion and is diametrically contradictory to the clarity demanded by the common law.

Where the laws that apply to a particular jurisdiction are unequivocal, its subjects can go about their daily lives safe in the knowledge that the parameters of the law are clearly prescribed. The alternative is to create a climate of apprehension at best and fear at worst.

Within the context of national security, the proposed offense of inciting hatred carries an inherent vagueness that, on its face, leaves a wide margin of woolly discretion in its interpretation by the administrators.

Hong Kong's secretary for security was asked whether someone who continuously criticized the Legislative Council would be considered to be invoking hatred.

The security secretary was plainly trying to reassure the questioner when he said that it was reasonable to raise an opinion but whether doing so constituted an offense would depend on the person's intention.

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Realizing that this hardly constituted a satisfactory explanation, the security secretary enlarged on his answer, saying:“It is about whether one's intention is to give advice or give sweeping comments. One may be telling the truth but if one just focuses on one fact, repeatedly stating and exaggerating with deliberate tones with an intention to invoke, it is different.”

One can understand what the security official was endeavoring to say but it is highly improbable that any such enlarged definition will find its way into Article 23.

Had he said that telling lies or deliberately twisting the truth as a means of criticizing the Legislative Council, that much would have made sense and reduced the definition to unequivocal terms, readily capable of being understood by the man in the street.

But resorting to words capable of a multitude of interpretations, such as“sweeping comments” and“exaggeration” and reliance on the tone of voice, would give rise to an interpretive can of worms.

Would the sweeping be with a broad or narrow brush? How to measure exaggeration, by the length of Pinocchio's nose? And which of the 12 tones in Cantonese would suffice?

Introduction of soundly drafted domestic national-security legislation by way of the Basic Law is a golden opportunity for the incumbent administration to silence critics both at home and abroad, demonstrating that the rule of law continues to prevail in Hong Kong.

The current administration has taken significant steps to restore Hong Kong's reputation as the leading Asian financial hub.

One can but hope that it will recognize that drafting Article 23 requires highly experienced Hong Kong lawyers, versed in the language of the common law, to give it the status and recognition that will ensure the international standing of the jurisdiction.

Neville Sarony is a noted Hong Kong lawyer.

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