Professor Johannes Chan SC (Hon)
In the last two years,
the sweeping offence of seditious publication that was enacted almost a hundred
years ago in the colonial times, and that has fallen into disuse for almost
half a century, was brought back to life in Hong Kong. While an archaic offence does not by itself
mean that it is bad law, it does call for intense judicial scrutiny, especially
when personal liberty is at stake, when history bears witness on how this
offence has been influenced by the prevailing political climate and been used
to stifle and suppress political dissent, and when a similar offence has been
either repealed or narrowed down in modern times in many parts of the common
law world. Sadly, such intense judicial
scrutiny is absent in Hong Kong. LaiMan-ling is one of the latest convictions of this offence.
The Fact
The facts were not in
dispute. The five defendants were
members of the Executive Council of the General Union of the Hong Kong Speech
Therapists. They faced one charge of
conspiracy to print, publish, distribute, display and/or reproduce seditious
publications, contrary to
section 10(1)(c) of the Crimes Ordinance. Between 4 June 2021 and 22 July 2021, they
published three books which form the subject of the charge. These books were targeted at young children
studying at kindergarten and junior primary school. In a
gist, the books suggested that the wolves, who were taken to be the PRC
Government and the HKSAR Government, were wicked and evil. The sheep were kind and the oppressed
group. The wolves, under their tyrannic
leader, were the aggressors trying to ruin the peaceful and happy life of the
sheep with no right to do so. Upon
reading them, the court held that the children would be led to hate and excite
their disaffection against the Central Authorities, to look down on the Chief
Executive of the HKSAR, the police, the prosecution and the court with
contempt, and not to trust the administration of justice in Hong Kong.
It
was held that each of the books was a publication having seditious
intention. All defendants were convicted
and received a custodial sentence.
Statutory
Construction: What are “discontent”, “disaffection”, “hatred” and “contempt”?
There was no dispute
that the defendants had,
inter alia, published those three books. The issues were (1) whether they knew that
the books had a seditious intention and (2) whether the defendants had a
seditious intention. “Seditious
intention” is widely defined in
section 9 of the Crimes Ordinance to mean,
inter
alia, “an intention to bring into hatred or contempt or to excite
disaffection against the Central Authorities or against the Government of Hong
Kong”; “to bring into hatred or contempt or to excite disaffection against the
administration of justice”; and “to raise discontent or disaffection amongst
the inhabitants of Hong Kong”.
The court was plainly right to hold that it was
also an element of the offence that the defendants had a seditious intention,
and
that the burden of proof was on the prosecution.
It was also right to hold that if the
publication has a seditious intention involving more than one limb of
section9(1) of the Crimes Ordinance, it is not necessary for the defendant to have a
seditious intention mirroring exactly in every respect with the publication so
long as he shares some of the seditious intention of the publication.
The court then went on
to reject the contention that a seditious intention must also include “an
intention to incite persons to violence or to create public disturbance or
disorder for the purpose of disturbing constituted authority”. It also rejected the argument that the
offence of seditious publication was an unconstitutional infringement of the
right to freedom of expression. These
two issues would be further discussed below.
At this point the
court turned to the fact and found the existence of seditious intention. A glaring omission is the failure of the
court to define what constitutes “disaffection”, “discontent”, “hatred” or “contempt”. The court correctly held that there would be
no seditious intention if one of the exceptions in
section 9(2) was
established, such as an intention to show that the Central Authorities or the
HKSAR Government was mistaken in any of their measures, or to point out errors
or defects in the government or in legislation or in the administration of
justice with a view to remedying such errors or defects. However, the court stopped there. It does not follow that there is seditious
intention if one of the exceptions in
section 9(2) has not been established. It begs the question of what constitutes seditious intention.
It is true that
the books portrayed the state/government as a wolf, and
the wolf was wicked because it has done something terrible, endangering the
peaceful life of the sheep. But is there anything wrong to say that the
state has abused its power and caused suffering to the people? This is
something we hear all the time in any civil society - people might be unhappy
with the state or aggrieved by the measures of the state. They might make all kinds of complaints; many
of such complaints might not be couched in the most civilised language or with
the civility of intellectual reasoning. Some of these complaints might be misinformed
or might simply be an outburst of emotion.
Even if these complaints are groundless and do not come within the
exceptions in section 9(2), does it mean that they incite "disaffection”, “discontent”,
“hatred” or “contempt"? The court has never addressed what
constituted disaffection etc or how these requirements are to be distinguished
from harsh or even unjustified criticisms of the state. The suggestion
that they are ordinary English words does not take the matter any further.
These words describe emotion, but why should people be punished for stirring up
such emotion, unless some harm has been proved?
As the court rightly pointed out, the sedition offence created by
sections 9 and 10 of the Crimes Ordinance is to protect national security. Thus, these terms, which form the key
elements of the seditious offence, have to be construed in light of this
context and purpose of the Ordinance. Two points could be made here. First, any criticism against the state could
not amount to “disaffection”, “discontent”, “hatred” or contempt” unless they reach
certain level of intensity. As a
criminal offence that restricts freedom of speech, it would not be unfair to
expect a high threshold or intensity before any criticism could be labelled as
"disaffection”, “discontent”, “hatred” or contempt". Diversity and
tolerance are the virtues of the common law system. The court accepted that it should not read
the books through the eyes of an extremely radical or cynical reader, but it
must consider the likely effect of the books on ordinary people and on the audience
to which the books are addressed. Given the penal nature of the criminal
provision, it may be appropriate to go further to adopt the standard of not
just an ordinary reasonable person, but a “reasonable, strong minded and
courageous person”, and not a person of “a weak and vacillating mind”. Secondly, any
criticism against the state could not amount to “disaffection”, “discontent”, “hatred”
or contempt” unless they give rise to a real risk that national security is
threatened or compromised. It is not the
emotion per se, but the harm created by such emotion that justifies criminal
sanction. The harm should not be
theoretical. Freedom of expression
includes not only speeches that are civilised and rational, but also speeches
that are politically incorrect, shocking or even offensive. Hence, the key has to be a real risk of threat
or harm to national security. As nicely
put by the Indian Supreme Court,
“The anticipated danger should not be remote, conjectural or
far-fetched. It should have proximate
and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the
public interest. In other words, the
expression should be inseparably locked up with the action contemplated like
the equivalent of a ‘spark in a powder keg’.”
In this regard,
the court made two unwarranted assumptions without any evidential basis. First, the mere allegation that the state was
wicked or unfair in treating its subject did not necessarily lead to a
conclusion that the readers of the books would feel contemptuous or
disaffectious against the state, or a mere suggestion that the immigration
arrangement between the PRC and the HKSAR Government was abused would lead the
readers to feel discontent with the new immigrants. This is an issue of threshold or
intensity. Secondly, even if the court
could make such an inference from what was written in the books, it did not
follow that national security interest was threatened or endangered. As the Supreme Court of South West Africa (Namibia)
pointed out, “Because people may hold their government in contempt does not
mean that a situation exists which constitutes a danger to the security of the
State or to the maintenance of public order. To stifle just criticism could as
likely lead to these undesirable situations”.
This is about the justification of a real risk of threat or harm to national
security, the existence of which justifies criminal sanction. Both of these premises are lacking.
In the present
case, the children may be misled, even unjustifiably, but this does not mean that
there is a real risk of threat or harm to national security. There is simply no such evidence, let alone
any sufficient analysis of the offence.
On this ground alone, the conviction could not stand.
Constitutional Challenges
This leads me
to the constitutional challenges. There
are two main aspects. First, the offence
fails the test of legal certainty.
Secondly, the offence fails to meet the requirement of
proportionality. It may be worthwhile to
point out that a constitutional challenge does not necessarily lead to a striking
out of the offence or a denial of the importance of protecting national
security. Striking out is the last
resort. More importantly, constitutional
arguments require the court to focus on the fundamental constitutional values
and to strike a better balance between protection of fundamental rights and
upholding national security by ensuring, through various techniques of
construction, that the measures to protect national security do not go beyond
what is necessary to achieve such purpose.
Legal Certainty
The court rejected the argument that the
words “disaffection”, “discontent”, “hatred” and “contempt” in section 9 are
too vague so that an ordinary person will not be able to regulate his conduct
to avoid criminal liability. Three
reasons were provided. First, these are
ordinary words with ordinary meaning, which may vary with time, place and
circumstances of the conduct in question and are best left to the trial judge
or jury.
Secondly, although these words are descriptive of a person’s subjective feelings
or emotions, some objective facts will have to exist to allow the ascertainment
of subjective feelings or emotions.
Thirdly, section 9(2) sets out some conduct which will not be regarded
as seditious; hence there are objective guidelines to allow a defendant to
delineate the area of risk. None of them
is convincing.
First, the fact that the matter is best
resolved by the trial judge or jury does not absolve the state from defining
what the prohibited act is. Section 9(2)
is helpful in identifying what does not constitute seditious intention, but as
pointed out above, the absence of a negative does not prove the existence of a
positive. Once the conduct in question
does not fall within section 9(2), it still begs the question what constitutes
“hatred”, “contempt”, “disaffection” and “discontent”. Secondly, these are
general terms. Even if some objective facts exist, the standard or intensity
required may vary from persons to persons.
The same words may be perfectly acceptable by one person but regarded as
offensive by another person. In a plural
society, there could hardly be any objective standard to determine these
subjective feelings save in the most obvious situations. Some may think the Small House Policy in
favour of the indigenous inhabitants of the New Territories is discriminatory,
socially divisive, politically corrupt and should be abolished. Some may think that homosexual behaviour is highly
offensive and should be penalized, and same-sex marriage is disgraceful. Would they incite “discontent” among the
inhabitants of Hong Kong? Some may accuse
the Government of colluding with the business sector at the expense of the poor
and the unresourceful and may call for the resignation of the Chief Executive. Some may believe that Hong Kong has become a
police state. An aggrieved litigant may
use harsh or even vulgar language to criticize a judge or the court. Would they incite hatred and contempt against
the Government or the administration of justice? Different people may have different standards
in determining what constitutes “hatred”, “contempt”, “disaffection” and
“discontent” and in assessing when words or acts transgress acceptable
limits. Reasonable persons may differ
reasonably. This is what a plural
society is about, and it would hardly be acceptable that criminal liability is
to be based on such fluid and uncertain standards.
In this regard, the court’s reasoning is
weakened by its refusal to consider the wealth of international and comparative
materials on the basis that “their political background, social condition,
culture and the availability of alternative legislations to deal with seditious
situations to safeguard their national security are different to those in the
HKSAR.” Such sweeping statement is unjustified. First, the offence in sections 9 and 10 of
the Crimes Ordinance has its origin in the common law. Secondly, a similar offence exists in statutory
form in many parts of the common law world.
Indeed, some of them bear remarkable similarities with the offence in Hong
Kong. For example, the wordings of the relevant offence in New Zealand and
Australia are almost the same as that in Hong Kong. Thirdly, the offence has been studied in
extenso by the Law Commission of at least five different jurisdictions. Even giving due allowance to the differences
in social and political circumstances, it would be a sweeping statement to
suggest that the intellectual reasoning and legal wisdom of the entire common
law world have nothing to offer to the interpretation and development of a
similar offence in Hong Kong.
After all, the common issue in almost
any jurisdiction is how to balance freedom of expression with protection of
national security. Hong Kong is not
unique in this regard
Thirdly, it is even more unconvincing when
the issue is about construction of the statutory language. The words “disaffection’, “discontent”,
“hatred” and “contempt” in similar offences elsewhere have been extensively
criticized for being too vague and uncertain.
It is difficult to see why these words are regarded as too vague and
uncertain in Canada, New Zealand, the United Kingdom, Australia, India, Namibia
and so on, but the ordinary people in Hong Kong would have no difficulty in
understanding what conduct is or is not prohibited by these words.
Proportionality
There are two aspects in the court’s
application of the proportionality test.
The first is that there was only a cursory consideration of the
existence of a rational connection between the restriction and the objective to
be achieved. The court has rightly
identified the objective as the protection of national security. The means to achieve this objective is to
punish any publication with a seditious intention. It has already been pointed out that inciting
hatred or contempt or discontent does not necessarily lead to a real risk of danger
of national security or public order.
The second aspect of the proportionality
test is that the offence should not go further than necessary to protect
national security. This requires the court to consider the social impact of the
offence, including its breadth and coverage as well as its effect on freedom of
expression and balance them against the risk to national security. As
personal liberty is at stake, it is well established that the court should
adopt a stringent scrutiny.
A few observations could be made. First, the court has made unjustified factual
assumptions. The three books in question
were published between June and July 2021.
The civil unrest in 2019 have long calmed down by then. The National Security Law, which was enacted
and came into effect on 30 June 2020, has caused dramatic social and political
changes in the community. Nonetheless,
the court held that:
“Although the
situation in the HKSAR has more or less calmed down after the promulgation of
the NSL, it is clear that these people have little change in their
attitude. They just go underground and
the seeds of unrest are still there. The
political situation appears to be calm on the surface but very volatile
underneath.”
There was simply no evidence before the
court on the social situation in June/July 2021, and even if there were an
under-current of threat, how serious the threat was and how was it assessed? These are not matters that the court was
entitled to take judicial notice. They sound like the subjective political opinion
of the judge rather than an impartial assessment of social conditions based on
objective evidence. As a result, the
balancing exercise conducted by the court was heavily tilted in favour of
preservation of law and order, with little consideration of the chilling effect
of the offence and its impact on the right to freedom of expression. Its conclusion was tainted by the court’s
pre-occupation of social unrest in the past without any relevant evidence at
the material time.
Secondly, as it did regarding the issue of
legality, the court also found the overseas statutes, case law, law commission
working paper, academic commentaries of little assistance in determining
proportionality. It has already been pointed out that this
sweeping view is unjustified. The comparative materials are helpful in at least
three aspects. First, the global trend
has largely been against sedition and in favour of free speech. Similar seditious offences had been repealed
or amended in many other jurisdictions. There are common underlying concerns
about these seditious offences. Civil
societies should afford rooms for dissents. Secondly, they illustrate the risk of how this
offence has been used, over a long period of time and in many jurisdictions, to
stifle and silent political dissent. Is
there anything to suggest that this offence would not have the same effect in
Hong Kong? Thirdly, they provide
insights on how the court has been trying to mitigate the harshness of this
offence so as to bring a proper balance between the constitutional right to
freedom of expression and the legitimate concern of protecting national
security.
This brings me to the last
observation. The breadth of the offence
is a material consideration in assessing the proportionality of the offence. In
the present case, the court rejected the argument that a seditious intention
must also include “an intention to incite persons to violence or to create
public disturbance or disorder for the purpose of disturbing constituted
authority” (“the common law intention”).
It reached this conclusion primarily by tracing the legislative history
of the offence. While some of the
reasonings of the court may be open to arguments, the court is probably right
to note that “violence is not the only means to bring down a government or
cripple its running. Spreading rumour,
hatred and disinformation is clearly a readily available and may even be a more
effective weapon without the need to incite people to violence.” However, it is in this area that comparative
materials may offer valuable insights and assistance. As the court noted, the introduction of
common law intention stemmed “from the need perceived by the judges to limit
the scope of the sedition offence so that it was only when the words uttered had
created a real risk to upset political and social order before the criminal law
would step in to intervene.” In the old days, such real risk might be
created only when violence or threat of violence was used. In modern days of rapid telecommunication
development, means other than violence or threat of violence may pose an equally
real risk to upset political and social order, but this fact alone does not
detract the force of the concern that criminal law should only intervene when
there is a real risk to upset political and social order. This reinforces the above interpretation that
a high standard of intensity is required so that there could not be any
seditious offence unless words uttered had created a real risk to upset
political and social order, and such real risk has to be demonstrated by cogent
and persuasive evidence. There is simply
no such evidence in the present case that the discontent, hatred, contempt or
disaffection has created a real risk of threat or harm to national
security. Without the requirement of
such a real risk of threat or harm to national security, there is a strong
argument that the seditious offence is disproportionate and fails to pass
muster the constitutional requirement for the protection of freedom of
expression. The offence might likely be
saved with this requirement, which illustrates the value of constitutional
arguments to provide a principled means to approach national security offences
and to allow the court to read down the scope of sweeping criminal offences so
as to achieve a better balance between fundamental rights and protection of
national security.
By affirming the breadth of the offence,
the court missed the opportunity to narrow down this anachronistic offence and
to bring it in line with the contemporary values of our legal system. Tolerance, diversity and broadmindedness are
not just constitutional values; they are also inherent in the common law
system. By failing to construe the
offence in light of its purpose and object, and by convicting the defendants in
the absence of evidence either on the prevailing social conditions or the
existence of a threat of harm to the state, let alone the requirement of proof
beyond reasonable doubt, the intense judicial scrutiny that is called for in
protecting a fundamental right cherished by both the common law and the Basic
Law is singularly lacking. Whether it is
a matter of statutory construction, want of evidence or compliance with
constitutional requirements, on any of these grounds, the convictions are
wrong.
Professor Johannes Chan SC (Hon)
In this regard, the seditious offences have been treated in the same
category of national security offences under the NSL, which means that a person
charged with these offences is unlikely to be able to obtain bail. A number of defendants charged with these
offences have been detained before trial for over a year.
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