In response to the widespread public unrests that engulfed Hong Kong in 2019, the Central Authorities of the PRC enacted the Hong Kong National Security Law (“HKNSL”) to explicitly criminalise sabotage (Articles 24(1)(3) and (4)), which refers to the act of damaging property with an aim to endanger national security. Subsequently, the enactment of the Safeguarding National Security Ordinance (“SNSO”) further expanded the legal ambit of sabotage (sections 49 – 51). A detailed comparative analysis of these provisions reveals a significant overlap between the protected objects, the actus reus and mens rea of these two offences,  thereby requiring the prosecution to exercise its discretion judiciously to prevent potential abuses.

Similarities of Sabotage Provisions in HKNSL and SNSO

The first problem arises from the substantial overlap in the scope of protected objects. In the HKNSL, the public infrastructure to be protected is the means of transport, transport facilities, electric power or gas facility etc. (Article 24(1)(3) & (4) of the HKNSL). In the SNSO, the public infrastructure to be protected closely mirrors that of the HKNSL but extends to include any public infrastructure that belongs to or is occupied by the Central Authorities (section 49(4) of SNSO).

Second, in terms of actus reus, the sabotage offence in SNSO requires damaging or weakening of public infrastructure. Section 49(3) of the SNSO defines this broadly to include any act that causes the public infrastructure vulnerable to abuse or damage, causes it to be vulnerable to be accessed or altered, or not be able to function or operate as it should. In contrast, the definition of the actus reus of sabotage in HKNSL includes any acts that cause “grave harm to society”. It is arguable that acts involving damaging or weakening of public infrastructure, as set out in the SNSO, would also fall within the ambit of “grave harm to society” under the HKNSL. Therefore, despite differences in statutory language, the actus reus elements of sabotage under both laws may, in practice, substantially overlap, and allows the prosecution to cast a wide net when selecting which offence to charge.

Third, with respect to mens rea, sabotage in the HKNSL explicitly requires an intention to coerce the central or local government or to intimidate the public, for the purpose of pursuing a political agenda (Article 24 of the HKNSL). In contrast, the SNSO only requires an intention or recklessness as to whether national security would be endangered (section 49(1) & (2) of the SNSO). Notably, section 2 of the SNSO incorporates the definition of national security (the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security) in Article 2 of the National Security Law of the PRC into domestic legislation. Given the ambiguous nature of the definition of national security in SNSO, any mens rea satisfying sabotage under the HKNSL could also fall within the SNSO.

Implications on Prosecution Decisions

The differences between the protected objects, actus reus and mens rea of the sabotage provisions in the HKNSL and the SNSO are significant, not only on the level of legislative language but also in terms of sentencing and judicial safeguards. Under the SNSO, the imposition of life imprisonment for sabotage is only possible if the offence involves collusion with external forces, a requirement that is absent in the HKNSL. Furthermore, as domestic legislation, the SNSO is subject to judicial scrutiny by Hong Kong courts, which retain the power to review its compatibility with the protection of human rights. In contrast, this judicial safeguard is not available with regard to the HKNSL, which is a piece of national law of the PRC (See Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR [2023] HKCFI 1382, paras. 23 – 24).

In the United Kingdom, one of the safeguards against the abuse of the prosecution of sabotage is the requirement of foreign power condition (section 31(1) of the National Security Act 2023). In comparison, Hong Kong lacks an analogous safeguard, as collusion with external forces is not a mandatory element for sabotage. Given the significant overlap in the elements of sabotage under the HKNSL and the SNSO, the prosecution may enjoy a wide discretion in selecting between the HKNSL and the SNSO, and to pursue the charge most conducive to securing a conviction. It is therefore important for both the local and the international community to maintain vigilant oversight over the enforcement of sabotage provisions of Hong Kong, and to ensure that prosecution decision is only based on sufficiency of evidence and general public interest, as mandated by the Prosecution Code of the Department of Justice of the HKSAR.