The Law Society of Hong Kong has recommended allowing a public interest defence against state secrets offences under the city’s homegrown national security legislation.
President Chan Chak-ming told a press conference on Tuesday that the society, a professional body representing around 11,000 solicitors, agreed that the enactment of legislation under Article 23 of the Basic Law, Hong Kong’s mini-constitution, was a “necessity” that should be completed as soon as possible.
But ensuring national security and safeguarding the rights of Hong Kong residents was not a “zero-sum game,” he said, adding that a reasonable balance could be maintained between the two concepts.
See also: Explainer: What is Article 23? Hong Kong’s homegrown security law is back in the spotlight
After the government commenced its month-long public consultation for the new security law in late January, security chief Chris Tang said the authorities would consider a public interest defence for offences involving state secrets. Theft of state secrets was among five types of offences outlined in a 110-page consultation document published on January 30, along with treason, insurrection, sabotage, and external interference.
Journalists, in particular, have expressed concerns about such offences, while the Bar Association has said Hong Kong should “definitely consider” such a defence.
Public interest defence
Chan on Tuesday suggested that the government look into Canada’s Security of Information Act which, according to the society’s submission, includes a public interest defence that “allows a defendant who discloses classified or protected information to avoid criminal or civil liability.”
A defendant who “can establish that the public interest in disclosure of the information outweighs the public interest in nondisclosure” or makes the disclosure to reveal an offence committed by a person in their official duties would not be held liable, the submission reads.
While the society did not recommend simply transplanting the Canadian model, it sets out a “good reference point,” Chan said.
The society’s submission also recommended clearly defining the elements of offences relating to sedition, “so that it would not be used to target political speeches or other forms of expression.”
The government’s consultation document says that sedition offences “will not affect legitimate expression of opinions” including “genuine criticism of government policies”.
According to chapter nine of the document, the government seeks to introduce at least eight measures to be imposed on suspects, including extending pre-trial detention, requiring suspects to reside at a specified residence, and barring a detained suspect from consulting specific lawyers.
Chan said on Tuesday the “rights of the accused pending investigation, including their rights to bail, as well as proactive case management on the part of the prosecution should be given due consideration.”
Chan added that it was a constitutional right for Hongkongers to choose their lawyers, and that the Law Society “will definitely request that this right cannot be taken away.”
As to whether he agreed with the proposal, Chan said the society would look into the actual proposal when a legislative bill has been drafted, and ask the government to “provide more information in due course.”
Chan added that the society had been meeting informally with consulate representatives to “help them understand the background” of the national security legislation, adding that “not a single one” of the consulates had denied that enacting the legislation was the government’s constitutional duty.
Article 23 of the Basic Law stipulates that the government shall enact laws on its own to prohibit acts of treason, secession, sedition and subversion against Beijing. Its legislation failed in 2003 following mass protests and it remained taboo until after the onset of the separate, Beijing-imposed security law in 2020. Pro-democracy advocates fear it could have a negative effect on civil liberties but the authorities say there is a constitutional duty to ratify it.
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