TNAG-1881-FCO40-2672-Relations-between-Hong-Kong-and-China-Chinese-charges-of-sub-1989 — Page 4

Ms Major

HKB

020C PAPER

RECEIVED IN REGISTRY

23 JAN1990

DESK OFFICEK

INDEX

НА

From Paul Fifoot

15 December 1989

citatched

HK Telno 4091: Subversion

c. Mr McLaren Mr Edwards

1. The text in this telegramme ("the HKSAR shall enact laws on its own to prohibit any act of treason.....and act of subversion against the Central People's Government..") is pretty near minimal if the Chinese are determined to have an express reference to 'using HK as a base for subversion". On a HK law construction, it does not add anything substantive to what was already in Article 23 or add any further requirement to my understanding of what we intend to do to give effect to that Article.

2. Our intention has been to adapt sections 9 and 10 of the HK Crimes Ordinance (copies attached) to the circumstances that obtain after 1997, in such a manner that relevant acts aimed at the PRC or CPG would be punishable as are acts provoking violence against the authorities of the SAR. Indeed certain of the acts referred to in section 9 are only relevant to the sovereign authorities. We set out the kind of offences which we envisaged in a letter to Shao Tianren of 31 October 1988, to which we have had no reaction, and I attach the relevant appendix. You will see that paragraphs 2 and 6 (A), (B) and (D) cover acts which are essentially acts of subversion and that they cover the PRC and the CPG. We did not draw Shao's attention to anything on the lines of section 9(2), which is designed to preserve the right to criticise the Government, though from our and HK's point of view, the qualifications in that sub-section would be an essential part of any provision dealing with sedition or subversion. Notwithstanding Miss Tam's report that mainland drafters did not intend to affect freedom of speech, this may well be an area of contention when the SAR law comes to be drafted.

3. But the issue may be wider than that. Again, notwithstanding Rayson Huang's report that "mainland drafters gave the assurance that they would not return laws on subversion ...simply because they differed from those of the mainland", they may well look to their own law to indicate the scope of what they expect to find in the SAR law. The PRC law on this subject is wide and imprecise. Article 90 of the Criminal Law provides that "All acts endangering the People's Republic of China committed with the goal of overthrowing the political power of the dictatorship of the proletariat and the socialist system are crimes of counterrevolution" and Article 92 that "Whoever plots to subvert the government or dismember the state is to be sentenced to life imprisonment or not less that ten years of fixed term imprisonment.

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