ARTICLE 19 and The Hong Kong Journalists Association
4.3
SEDITION AND TREASON
The Crimes Ordinance13 was one of six laws frozen from challenge under the Bill of Rights for one year after the Bill's enactment: the freeze was lifted on 8 June 1992. During the freeze period, the government reviewed what it saw to be the contentious provisions of the law, and its proposed amendments were approved by the Legislative Council in mid-1992.
The key problem areas for freedom of expression concern the possible scope for abuse under the offences of treasonable and seditious intention. In the provisions on treason, quite how intentionality might be construed is open to broad interpretation. Under Section 3(1)(a), "any person who forms an intention" to depose the Queen, or wage war against her, or against Britain or its dependent territories, and who demonstrates such an intention either by an overt act or by publishing or printing, commits treason. What exactly is meant by intention, and what the nature of the published material might be such that it shows treasonable intentions, is not made clear. In a system without proper checks and balances, it cannot be overlooked that such a provision could be abused as an instrument of political policy.
However, in such circumstances it is perhaps more likely the authorities would take a simpler route to prosecution. Section 9 of the Ordinance sets out the definition of seditious intention14; read together with Section 10, which creates the offence of sedition, this seems altogether more amenable to executive misuse. Here, incitement against the authority of the British or Hong Kong governments can take the form of an act, speech or publication that has an intention to bring the government into hatred or contempt, to promote ill-feeling between different classes, to raise discontent, or to counsel civil disobedience.'
As the wide language suggests, these provisions were once formidable weapons in the colonial armoury, designed as they were by the early colonial authorities specifically to deal with acts of political dissent.
The extent of the authorities' powers of search and seizure in cases of sedition or suspected sedition is also considerable. Section 13 of the Ordinance lays down the very broad conditions under which a magistrate may grant a warrant to search for and seize allegedly seditious material. These go well beyond the already controversial powers of search and seizure under Section 50(7) of the Police Force Ordinance (discussed below). Taken together with sections 9, and 10, any deliberately literal and illiberal reading of these provisions could result in the suppression of opposing or dissenting political views.
13
Crimes Ordinance (Cap 200), enacted in 1971, consolidating in Dec. 1972 provisions which appeared in 10 other ordinances. Most recently revised in 1992.
14
The Ordinance's similarly controversial Section 9(3), which set out a statutory presumption of seditious intention, was repealed by the Legislative Council in mid-1992.
15
It would not be seditious to demonstrate that the authorities had been "misled or mistaken", or that there were "errors or defects in the government".
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