Legal experts tell SBS Cantonese that non-Hong Kong residents living in other countries fall under the umbrella of China's controversial national security law.
The law was unanimously passed by the Standing Committee of the National People's Congress of China in the lead-up to July 1 - the 23rd anniversary of the British handover of Hong Kong.
The legislation was signed by Hong Kong Chief Executive Carrie Lam and immediately came into effect on Tuesday.
Highlights:
- The Hong Konger community in Australia has expressed concern that the new security law can target people living outside Hong Kong
- Legal experts fear that the vague definitions of the new law would silence all critics
- They believe the Australian government is unlikely to extradite “suspects” to Hong Kong
The ‘Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region’ introduced several new offences, including secession, subversion, terrorism, and collusion with foreign forces to endanger national security, some carrying a maximum penalty of life imprisonment if convicted.
The legislative process of the new law has been highly controversial. The Hong Kong public did not see the bill until after its imposition.
China’s move was criticised in a issued by Australia, Canada, Japan, New Zealand, Switzerland and European Union nations.
‘Extraterritorial jurisdiction’ reaches all Australians
Clause 38 of the security law states that individuals who do not hold Hong Kong permanent residency are subject to the law should their behaviours outside the region breach the regulations, meaning that all Australians can be charged and arrested should they enter the city.
Local Hong Kong communities said they were appalled by the scope of the regulations, and some said they subsequently deleted old comments that they had made on social media, fearing the possible repercussions.
The Security Bureau of Hong Kong told SBS Cantonese: “Freedom of speech and expression is guaranteed in Hong Kong according to law. However, freedom of expression is not absolute. If illegal acts are involved, they are beyond the boundaries protected by the constitution and can be punished and restricted by law."
"Each case depends on its relevant circumstances, including facts, related behaviours and intentions, evidence obtained, etc., and will be handled in accordance with relevant laws," the statement continued.
Principal Lecturer at the Faculty of Law at the University of Hong Kong, Eric Tat Ming Cheung, said what made the security law unique was that it exercised "extraterritorial jurisdiction".
He believes that Australians who did not have connections in Hong Kong were less likely to be affected, but that it could be used as a political tool to gain bargaining power when tensions erupt between China and other nations.
“Huawei CFO Cathy Meng’s court case is one example. When China thinks it is suppressed by other countries, would [the Hong Kong government] take the opportunity to press charges on people from those countries who may have breached the law when they transit through Hong Kong? I can’t say [the Hong Kong government] would not.”
Mr Cheung said Hong Kongers in Australia, on the other hand, face a bigger risk if they continue to show support for Hong Kong’s pro-democracy movement.
A man is detained and searched by police during a rally against the national security law in Hong Kong. Source: EPA
He said comments, such as ones expressed by the Hong Kong community in Australia calling for Chinese officials to be sanctioned for "eroding" Hong Kong’s freedom and democracy, could result in charges of collusion with foreign forces to endanger national security.
Furthermore, he said making donations to the pro-democracy movement could also be considered an offence, while online comments with no “intention of organising, scheming or acting, inciting others to commit those acts” may not necessarily be illegal.
Mr Cheung said the new law was "very broad", which is a common method that China delivered its laws and clauses, noting that the ambiguity often causes confusion when it is interpreted under common law or western standards.
“[The Chinese government] wants to impose deterrence, to frighten people, so they will stop. Those who aren’t afraid and continue with their acts may not be prosecuted but you can’t rule out the possibility,” he said.
Mr Cheung has been teaching law at Hong Kong University since 1996, and he said the new law falls into the realm of interpretation.
“Frankly speaking, I cannot clearly and fully analyse [under what circumstance one would break the law]. It is drafted in a legal system with Chinese characteristics. And it clearly states that the Standing Committee would uphold the final interpretation.
“My analysis is based on the literal interpretation of the law and it may not be the same as how the committee understands it. It depends on China’s shifting bottom line. This is the characteristics of China’s rule of law.”
University of Sydney law professor Bing Ling said the security law aimed to stomp out all acts that organise, scheme, instigate or incite others to endanger “national security” in Hong Kong, but he believes expressing different opinions on social media is still far away from that.
He said the key lies in the definitions of these terms and the authority for final interpretation falls on the Standing Committee.
“These terms are not clearly defined. As such it creates an effect to silence the entire world,” he said.
“When a set of security law is applied in foreign countries, it will certainly affect the rights and freedom of foreign citizens. For instance, Hong Kong’s security law bans any peaceful way to encourage Hong Kong independence and self-determination. These rules would, of course, affect the freedom Australian citizens and residents get to enjoy.”
Can Australia extradite ‘suspects’ to Hong Kong?
In terms of how the law would be enforced, Mr Cheung explained that the Hong Kong government would widely collect intelligence and arrest suspects once they arrived at the border.
He believed that the Australian government was not likely to deliver these “suspects” to Hong Kong while they remain in Australia.
“The extradition process is based on a set of principles, including double criminality. If an act in question is not regarded as a crime under Australian law, then the case does not meet the requirements of extradition. Foreign governments usually would not deliver their citizens to Hong Kong to face trial.”
Prof Ling believes that the extradition treaty between Australia and Hong Kong granted "political offence exception".
He notes, most of the offences listed in the security law, other than terrorism, are political offences.
Community group, Australia-Hong Kong Link, criticised the security law as "ambiguous" and lacking objective interpretation.
“Since the CCP has already branded the pro-democracy movement as an act of secession, millions of Hongkongers are now at risk of prosecution, legitimised by the law," the group said in a statement.
Link convenor Dennis* told SBS Cantonese that the group was not deterred by the security law, affirming that since they now faced a greater risk of prosecution in Hong Kong, they were “more determined” to propel Hong Kong’s democracy movement from overseas.
AU-HK Link representatives at the Australian Parliament Magnitsky Act public hearing in Canberra. Source: Facebook
Dennis said the group would be "more vigilant in operation" and stop providing constant updates on their lobbying activities to avoid being tracked by the Hong Kong authority.
However, he worried that the protestors who fled to Australia would be prosecuted one they return to Hong Kong after their visas expired.
He called on Australia and its allies to provide “humanitarian lifeboats” to Hong Kong protestors and help them settle in the country.
The plans have infuriated Beijing, which has urged Australia to stop interfering in China's internal affairs regarding Hong Kong.
The Link last year started to lobby the Australian parliament to install a Magnitsky Act-like legislation to impose sanctions on Chinese officials for "abusing the freedom and democracy of Hong Kong".
Mr Cheung and Prof Ling ran through how the law may be used according to different scenarios.
Scenario 1: Australians show support for the anti-extradition bill demonstrations and the democracy movement in Hong Kong on social media, while inside Australia.
Cheung: Voicing out is not illegal but providing financial support may breach the security law.
Ling: Participating in activities against the Hong Kong or Chinese government like the anti-extradition bill movement could be a crime of subversion, only if it involves violence, threats to use violence or other extreme measures to overthrow the Chinese and Hong Kong governments. It is not an offence for Australian citizens to attend local peaceful demonstrations.
Scenario 2: Australians express support for Hong Kong and Taiwan independence to friends in private
Cheung: It is not illegal to discuss and support the independence of Hong Kong or Taiwan. However, it could be a breach if it involved the intention of organising, scheming or acting, inciting others to take part in these activities.
Ling: The security law includes a so-called offence of secession. Whether it is through violent or non-violent ways, for example, referendum and self-determination, individuals can be regarded as committing an offence of session if they organise, scheme, incite others to realise the independence of Hong Kong, Taiwan, Xinjiang or Tibet through secession.
Expressing opinions on social media or in schools would not constitute secession. But the problem is the law has not clearly defined the meaning of “organise, scheme, incite”.
Scenario 3: Falungong members set up booths to protest against the CCP
Cheung: The security law states that they can be prosecuted but political factors may affect law enforcement.
Ling: It does not violate Australian law. It should not violate the security law either.
Scenario 4: Australian voters talk to local MPs and call for sanctions on China for "jeopardising" Hong Kong’s autonomy
Cheung: There is a chance that their behaviour may constitute collusion with foreign or overseas agents or individuals to commit acts against the regulation.
Ling: There is an article in the security law that forbids collusion with foreign forces to interfere with Hong Kong affairs. Hence lobbying the Australian parliament or governments to impose sanctions on China or the Hong Kong government is clearly illegal.
Scenario 5: Australian media report negatively on China
Ling: Criticising the Chinese government or its policies should not constitute a crime unless the articles encourage secession or a coup against the Chinese or Hong Kong governments. The key is whether it involves incitation. If an article simply supports Hong Kong becoming independent, it is not on that level. However, if it claims that Hong Kong people should strike for independence by forming a government or military force, it is likely to be regarded as instigation.
Scenario 6: To participate in a vigil on the Tiananmen Square Massacre or anti-extradition law demonstrations
Ling: It should not be illegal because it does not involve the use of physical force, threatening or illegal activities to subvert the state power.
*Not his real name
