The Revival of the Sedition Intention Offences in Hong Kong Continues: The Tam Tak-chi Appeal and the Safeguarding National Security Ordinance

by | Apr 30, 2024

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About Pui-yin Lo

Dr. Pui-yin Lo is a barrister in private practice in Hong Kong. He also teaches constitutional law at the Faculty of Law of The University of Hong Kong. Dr. Lo has written extensively in English and Chinese on the Hong Kong Basic Law, the protection of human rights and immigration. His recent contributions include the Hong Kong chapters in the Asian Comparative Constitutional Law anthology (Hart Publishing) and the Hong Kong chapter in the 2022 Global Review of Constitutional Law.
Tam Tak-chi was a loud-mouthed Hong Kong (HK) politician. His 2020 election campaign attracted attention through public addresses that identified with the 2019 Anti-ELAB Protests and were perceived by some as demeaning the Chinese Communist Party, the HK Government, the HK police force and the Hong Kong National Security Law that the Chinese Central Authorities decided to enact for its Special Administrative Region (SAR). The election was eventually cancelled. Tam was prosecuted of 14 charges which included 7 charges of ‘uttering seditious words’. A judge convicted Tam, having found that his spoken words had the ‘seditious intentions’ of bringing the Chinese Central Authorities or the HKSAR Government into hatred or contempt, exciting others to alter HK’s system unlawfully, bringing into hatred the police, and counselling disobedience of the law [paras 82, 99, 117, 120, 123, 127, 129]. The judge also rejected Tam’s challenge that the charges unconstitutionally restricted his freedom of expression guaranteed under the Hong Kong Basic Law, which enables the domestic application of the International Covenant on Civil and Political Rights.
‘Uttering seditious words’ was one of several offences in the Crimes Ordinance that were based on the British concept of ‘seditious intention’.  Since 2020, these offences have been revived from slumber to prosecute social network services administrators and usersbook publishersonline media editors, and Jimmy Lai, the proprietor of Apple Daily.
Tam’s appeal against the convictions was therefore much awaited.  The ‘seditious speech’ offence has been regarded as ‘extreme’, ‘colonial’, ‘vague’ and ‘disproportionate’ [para 163]. Many common law jurisdictions have repealedinvalidated or restricted this type of offence. The United Nations Human Rights Committee has expressed serious concerns about HK’s ‘seditious intention’ offences [paras 15,16]. Moreover, the Privy Council’s advice in Vijay Maharaj v A-G of Trinidad and Tobago (October 2023) was that the principle of legality would limit ‘seditious intention’ offences with ‘a requirement that there must be an intention to incite violence or disorder’ [para 47].
The HK Court of Appeal’s unanimous judgment of 7 March 2024 dismissed Tam’s appeal. The Court reviewed HK legislative history and 1950s HK case law and held that the HK colonial legislature decided ‘consciously’ back in 1938 against including an intention to incite violence as a necessary ingredient of the statutory ‘seditious intention’ offences [paras 81, 82].  Therefore, Vijay Maharaj was not applicable. Further, the Court considered that the definition of ‘seditious intention’ was legally certain: ‘seditious intention’ had to be ‘broadly framed’ to safeguard national security in a timely and effective manner [para 121]. The ‘ordinary language’ used to delineate the offences had ‘a sufficiently and clearly formulated core’ (on which the Court expounded its own understanding) that enabled their application to be foreseeable [paras 122-126].  Furthermore, the Court held that the offences satisfied a four-step proportionality test similar to that currently used in the English courts. In the Court’s view, the delineation of the seditious intention offences did not inhibit open, frank, and full dialogue and debate on social issues. Coupled with the Secretary for Justice’s role in authorizing prosecutions, the Court concluded that the offences were ‘no more than necessary to accomplish [their] legitimate aim’ of safeguarding national security and public order [paras 138-142].
The Court of Appeal judgment is troubling. It not only omitted the critical piece of legislative history, spotted by Professor Johannes Chan, that the 1938 statutory ‘seditious intention’ offences were ‘based upon a model Ordinance compiled by direction of the [British] Secretary of State’ (which tended to explain the drafting similarities across common law jurisdictions [pp 930-931]), but also discounted both the Siracusa Principles as ‘plainly outdated’ [para 136], and the comparative jurisprudence and law reform reports presented as ‘overseas materials … quite different from [our setting]’ [para 130].
Although Tam has appealed the Court of Appeal judgment, this offers little comfort. The offences in the Crimes Ordinance have been replaced by provisions in the Safeguarding National Security Ordinance, enacted in March 2024. The new Ordinance makes clear that the new ‘seditious intention’ offences serve to safeguard Chinese national sovereignty, security and development interests, using the same ‘ordinary language’, without having to prove intention to incite another person to cause public disorder or act violently.

In the circumstances, caution is key. Take the case of a HK legislator who passed the new Ordinance. Soon after the new Ordinance was passed, he closed down his Facebook page to scrutinize the posts and upon restoring it, he appended a statement disclaiming that it was not his intention at all if anyone reading the posts felt hatred, contempt or disaffection against the system and institutions of the State, the constitutional order, the executive authorities, the legislature or the judiciary of HK. Thus, in the current legal context, political advocacy or commentary has to be fact-based and very moderate.

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