Benny Tai may have committed treasonable offenses, sedition

Updated: 2018-04-09 07:24

By Song Sio-chong(HK Edition)

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An associate professor of law at a local university is supposed to know the local laws well; he can make a clear distinction between a criminal offense and the exercise of political rights. However, Benny Tai Yiu-ting appears to be confused; this affects his lectures and influences his students to follow him. But, of course, ignorance of the law is no defense (Ignorantia legis non excusat).

Tai gave a talk in a Taipei forum organized by the Taiwan separatist group "Taiwan Anti-Communist Youth Corps" on March 26. He urged various separatist groups fighting for the "independence" of Taiwan, Xinjiang, Tibet and Inner Mongolia from the People's Republic of China to form a strategic alliance. He said they should then prepare for the country to split into smaller independent nations or members of either a federal state or a confederation.

Without mentioning any details used to achieve this aim, Tai's behavior can still be seen to be illegal. This is because the Hong Kong Special Administrative Region is an inalienable part of the PRC - a unitary nation - as defined in Article 1 of the Basic Law and also in the preamble of the nation's Constitution. The SAR comes directly under the central government as stated in Article 12 of the Basic Law.

Benny Tai may have committed treasonable offenses, sedition

Tai and his supporters were obviously allowed some space to maneuver in Taiwan. This suggests that the Taiwan authorities wanted to get some political extremists from Hong Kong to do the dirty work for them. Such an illegal forum could hardly be held in the SAR even though it enjoys a high degree of autonomy and academic freedom under the "one country, two systems" principle.

In my opinion, what was said by Benny Tai and his peers at the Taipei conference could have constituted at least both or either of two following criminal offenses: The first one is a "treasonable offense" as defined in Section 3(1)(a) of Crime Ordinance, in which any person who has the intention of deposing of Her Majesty from the style, honor and royal name of the Crown of the United Kingdom or of any other of Her Majesty's dominions. After the handover in 1997, "Her Majesty" in the ordinance can be interpreted as the central government of PRC. The intention to separate the SAR from her motherland also amounts to a treasonable offense.

This section was subject to repeal by Section 2 of the Crime (Amendment) (No 2) Ordinance 1997, before the 1997 handover, under the administration of the last governor Chris Pattern, but he failed to repeal it. This provision had been preserved by the Standing Committee of the National People's Congress in its decision on Feb 23, 1997 - effective from July 1, 1997.

Treasonable offenses may be committed against a duty of allegiance by the betrayal of trust. In reference to the common law of England and other nations, the duty of allegiance should be considered to be one owned by a national toward his or her state and in all places; and also to a Chinese national to his or her motherland.

This section of offense can be activated and applied due to the statement that "such of the laws previously in Hong Kong which have been adopted as the laws of the HKSAR, as from July 1 1997, be applied subject to such modifications, adaptation, limitation or exceptions as are necessary to bring them into conformity with the status of Hong Kong after resumption by China of the exercise of sovereignty over Hong Kong as well as to be in conformity with the relevant provisions of the Basic Law" in the NPCSC's decision.

These modifications, adaptations, limitations or exceptions are necessary. This means the principle of substitution given in Annex 3 of the decision - the crime of "treasonable offense" - with proper adaptation during execution may be applied in Tai's case retrospectively.

Another thing to consider is that "sedition" is defined in Section 9 as "seditious intention" and in section 10 as "offenses" in the same Crime Ordinance. Section 9(1) composes seven items including bringing hatred or contempt or exciting disaffection against the government of Hong Kong; or attempting to procure the alteration, otherwise by lawful means, of any other matter in Hong Kong as established by law; or to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or to encourage discontent or disaffection against the inhabitants of Hong Kong; or to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; or to incite people to violence; or to encourage disobedience toward the law or to lawful order.

As to Section 10(1), it consists of four items comprising, or attempting to do, or to make any preparation to do, or conspiring with any person to do, any act with a seditious intention; or to utter any seditious words; or print, publish, sell, offer to sell, distribute, display, or reproduce any seditious publication; or import any seditious publication, unless he has no reason to believe that it is seditious.

Readers of the law may find no difficulty at all in matching any one of seven items of the former section with any one of four items in the latter section to produce the criminal offense of sedition. But some in the media have said that mere seditious intent does not suffice for sedition - as violence and disorder have to be proved.

As the last two items of Section 9(1) demand the provocation of violence and disorder in order to suffice, but this requirement may not necessarily cover the remaining five items. As a famous Latin maxim states: "The inclusion of one thing is the exclusion of another." (inclusio unius est exclusio alterius). To follow Article 84 of the Basic Law, the precedents of other common law jurisdictions may be referred to, but not blindly copied.

(HK Edition 04/09/2018 page6)