Crimes Ordinance Sedition versus Hong Kong’s National Security Law: different legal tools, same outcome?

Just days before the New Year, Hong Kong’s National Security Department arrested seven individuals associated with the leading media outlet Stand News. According to the government, the seven were held under the sedition provision of the Crimes Ordinance (CO). Those arrested included prominent lawyer and former legislator Margaret Ng and Cantopop star and pro-democracy activist Denise Ho. Two top editors were later charged and held without bail, and four former board members were released on bail. The seventh arrestee, a former Apple Daily executive, was already in jail on other national security charges.

The national security arrests were the first by the government since October, a pause which likely reflected the government’s desire to avoid troubling headlines in the run-up to the December Legislative Council elections. The decision to crack down on Stand News was by no means a surprise: months before, pro-Beijing news outlets had signaled that Stand News needed to be shut down. Once the elections were over, the government had a free hand to act on the clear signal from Beijing.

Still, the decision to arrest the six under the sedition provision of the Crimes Ordinance, rather than the NSL, was a bit puzzling. Why choose one over the other? The vast majority of the roughly 170 national security arrests that have taken place since July 1, 2020 have been under Hong Kong’s draconian new National Security Law, and only a handful have been for Crimes Ordinance sedition. We can’t know the government’s thinking for sure, but there are likely a few key factors at play.

First, from the government’s perspective, there is now no downside to using the Crimes Ordinance. In a far-reaching ruling in December, the Court of Final Appeal held that key NSL investigatory and due process provisions can now be used in non-NSL national security cases. (I wrote about that decision here.) As a result, the police can more easily hold individuals accused of sedition without bail, and have broader authority to search their homes, offices, and electronic devices without judicial oversight. Individuals prosecuted for sedition can be denied a jury trial, and – at least in some cases, under NSL Article 41(4) – could see their cases tried in a closed courtroom.

Second, from the government’s perspective, the sedition provision may also be a better fit. The government only needs to show an intent to “incite disaffection” with the government in order to prove sedition. Under Articles 22 and 23 of the NSL, which cover subversion, the government must show an intent to incite the “overthrowing or undermining” of the central government. To be sure, the language of the NSL is sufficiently vague and overbroad that it could be stretched to cover normal journalistic work. The government may have wanted to save the courts from the embarrassment of having to endorse the notion that journalists reporting on political events in Hong Kong are in fact engaged in an effort to “overthrow or undermine” the government. The sedition provision obviates the need for such a showing.

A couple of caveats here: thus far, the courts have not really checked the government’s use of either the NSL or other national security laws. A discussion of the government’s effort to build and “prove” a case, either under the NSL or under the CO, can suggest a degree of rigor of judicial review, and a level of legal and analytical rigor on the part of the prosecution, that simply isn’t there.

At the same time, talk of the Hong Kong government’s efforts to prove its case can imply a basic level of legal legitimacy that is also absent from the Stand News arrests. Sedition is a speech crime, and the seven Stand News arrestees were engaged in acts that should be protected by Hong Kong’s Basic Law. It will be interesting to see whether the verdicts in these and other pending sedition cases include an effort to reconcile the criminal provision in question with Article 27 of the Basic Law, which protects the right to free expression. Recent national security verdicts have generally avoided any such discussion, and I fear that the verdicts in this case will follow the same pattern.

A third likely key factor: the sedition provision is a lesser crime, and carries with it lesser penalties: those found guilty can be sentenced to up to two years in prison, as compared with up to five years for lesser crimes under the NSL. Again, if the courts are hesitant to convict journalists of crimes merely for reporting the news, the government could be signaling that it is sensitive to that concern, and looking to use the lightest possible penalties to achieve its goals. Judges are still complicit in the jailing of journalists, since they are the ones delivering guilty verdicts. But their consciences may be lighter in cases where journalists are quote-unquote only sentenced to months rather than years.

The use of the sedition provision is also part of a larger strategy by the government to diversify its national security toolkit: the Stand News arrests show that the government wants to move away from using the heavy artillery of the NSL in all cases, and instead wants to use different legal and criminal tools for different circumstances.

This diversification of the national security toolkit will be a key part of the government’s strategy in 2022: Chief Executive Carrie Lam has made clear that Basic Law Article 23 national security legislation will be a key priority for the new year. Once that legislation is completed, the government will have an entire new set of national security laws that can be used to threaten, intimidate, or jail its political opponents. It can save the NSL itself for only the most high-priority targets.

I fear that this broader array of national security tools will be even more effective: Hong Kong citizens will need to be mindful of a wider range of potential criminal penalties, and will – the government no doubt hopes – have to trim their sails accordingly. Those voicing opinions critical of the government, or attempting to form opposition political parties, or engaging in other forms of day-to-day peaceful political participation will have to keep in mind an ever-growing list of laws that the government could use to punish their exercise of basic human rights.

Last but not least, the Hong Kong government may also view the Crimes Ordinance sedition provision as less easy for the international community to criticize, given that it is a British colonial-era law, rather than – as with the NSL – an almost certainly unconstitutional law that was imposed on Hong Kong by Beijing. Washington, London, Brussels, and other governments need to prove the Hong Kong government wrong on this front: after all, a number of governments, in Asia and elsewhere, have used colonial-era laws to crack down on basic rights. Hong Kong is taking a page from a well-worn playbook, one that is all too familiar to Western governments.

In this context, U.S. Secretary of State Anthony Blinken’s statement in support of the Stand News arrestees, and in support of free expression in Hong Kong, is welcome. Sadly, it seems likely that more such statements will be needed in the months to come.