Proposals to implement Article 23 of the Basic Law - Comparison of Offences and Penalties

Comparable / Similar Offences in Other Jurisdictions Existing Offences Proposed Offences (Note 1) UK USA Singapore Canada

Treason

Kill, wound or cause bodily harm to the To repeal – no longer applicable under the Compass or imagine Kill or attempt to kill Imagine or intend the Kill or do bodily harm head of state constitutional situation of the HKSAR. the death of the King or assault the President death of or hurt to the to Her Majesty President (Cap 200 s 2 – life imprisonment) ( Act 1351 – (18 USCS §1751- (s 46 of the Criminal life imprisonment) death penalty or life (s 121A of the Penal Code – life Levy war to depose or compel the Levy war by joining force with a imprisonment) Code – death penalty imprisonment) sovereign or intimidate the legislature foreigner to overthrow or compel or Levy war against the and fine) intimidate the PRC Government King Whoever, owing Levy war against (Cap 200 s 2 - life imprisonment) allegiance to US, levies Wage war against the Canada (Life imprisonment) ( 1351 – war against them. Government life imprisonment) (s 46 of the Criminal Instigate a foreigner to invade the PRC Instigate a foreign armed force to invade (18 USCS §2381 - (s 121 of the Penal Code - life the PRC Stir any foreigner or death penalty or not Code – death penalty imprisonment) (Cap 200 s 2 - life imprisonment) stranger with force to less than 5 years or life imprisonment (Life imprisonment) invade the UK or other and/or fine) and fine) Assist an enemy at war dominions or armed forces in Assist public enemy at war Assist public enemy at war Adhere to the enemies Abet the waging of war hostilities (s 3 of the Treason giving them aid and against the (Cap 200 s 2 - life imprisonment) (Life imprisonment) Act 1848 - life comfort, giving false Government (s 46 of the Criminal imprisonment) report to promote Code – life Treasonable Offence To repeal – existing offence is not clearly success of enemy (s 121 of the Penal imprisonment) defined. Adherent to the King’s Code – death penalty - Manifest the intention to levy war or enemies, giving to (18 USCS §2381 / or life imprisonment Form an intention to do instigate invasion by overt acts. them aid and comfort 2388 – death penalty / and fine) treasonable acts and up to 20 years and / or manifest that intention (Cap 200 s 3 - life imprisonment) (Treason Act 1351 – fine) by overt act life imprisonment) (s 46 of the Criminal Inchoate and accomplice offences To codify the inchoate and accomplice Code – life offences of treason. imprisonment) ( / ss 159A and 159G of Cap 200 - life imprisonment) (Life imprisonment) (cont’d) (cont’d) (cont’d) (cont’d) - 1 - Whoever owing Express, utter or allegiance to US and Attempt to wage war Do any preparatory act declare intention to having knowledge of against the or conspire to levy war levy war or stir commission of treason, Government invasion by any overt does not disclose to (s 46 of the Criminal Comparable / Similar Offences in Other Jurisdictions Existing Offences UK USA Singapore Canada

Misprision of treason To codify the offence of misprision of treason (Knowing that treason is being planned or Proposed Offences (Note 1) committed but did not disclose this to a (7 years) proper authority within a reasonable time)

(Common law offence - 7 years and a fine)

Secession

Broadly covered by Treason - (Cap 200 s Secession Broadly covered by Offences relating to Broadly covered by Broadly covered by 2 - life imprisonment) - withdraw a part of the PRC from its levying war under advocating the levying war against the levying war against sovereignty or resist the CPG in treason overthrow of the Government Canada exercising its sovereignty over a part of government of any US China by levying war, force, threat of (Treason Act 1351 - state or territory by (s 121 of the Penal (s 46 of the Criminal force or other serious unlawful means. life imprisonment) force or violence Code – death penalty Code – life or life imprisonment imprisonment) (Life imprisonment) See also “Treasonable (18 USCS §2385 - 20 and fine) Offence” above years and / or fine) Do any preparatory act Broadly covered by inchoate and To codify the inchoate and accomplice Attempt to wage war or conspire to levy war accomplice offences of treason offences of secession against the Government (s 46 of the Criminal (Common Law / ss 159A and 159G of (Life imprisonment) Code - life Cap 200 - life imprisonment) (s 121 of the Penal imprisonment) Code – death penalty or life imprisonment and fine)

- 2 - Comparable / Similar Offences in Other Jurisdictions Existing Offences Proposed Offences (Note 1) UK USA Singapore Canada

Sedition

Incite others to commit treason Incite others to commit treason, See “Treasonable Print, publish, edit, etc Do or attempt / prepare Speak seditious words, secession or subversion Offence” above any written or printed / conspire with others publish seditious libel (Common Law – same as substantive matter advocating or to do any act which has or is a party to offence: life imprisonment) (life imprisonment) Publish seditious teaching the overthrow a seditious tendency, or seditious conspiracy. words or libel with a or destruction of the utter seditious words, US government by or deal with seditious Do or attempt / prepare / conspire with Incite others to violence or public seditious intention. (s 61 of the Criminal others to do acts with a seditious disorder that seriously endangers the Incitement to disorder force or violence publications. Code - 14 years) intention, or utter seditious words. stability of the state or the HKSAR. or violence necessary. (18 USCS §2385 - 20 (s 3-4 of Sedition Act - (Cap 200 s 10 – 2 years and $5,000 for (7 years and unlimited fine) (Common Law years and / or fine) 3 years for first first offence and 3 years for subsequent Offence - fine or offence, 5 years for offences) imprisonment at subsequent ones and / court’s discretion) or fine) Deal with seditious publication– (i.e. Knowingly or having reasonable ground publication having a seditious intention.) to suspect, and without reasonable excuse, deal with seditious publication (i.e. (Cap 200 s 10(1) - 2 years and $5,000 for publication that would be likely to incite first offence and 3 years for subsequent treason, secession or subversion.) ones. Publications to be forfeited) (7 years and $500,000. Publications to be forfeited)

Possess seditious publications Knowingly or having reasonable ground to suspect, and without reasonable (Cap 200 s 10(2) - 1 year and $2,000 for excuse, possess seditious publication first offence and 2 years for subsequent ones. Publications to be forfeited) (1 year and $50,000 for first offence and 2 years for subsequent ones. Publications to be forfeited)

Posting of seditious publications To repeal – offence covered by seditious publications. (Cap 98, s 32 - 6 months and $20,000)

- 3 - Comparable / Similar Offences in Other Jurisdictions Existing Offences Proposed Offences (Note 1) UK USA Singapore Canada

Subversion

Treason – levy war to compel the To intimidate the PRC Government by Treason - levy war to Engage in any Restrain or overawe by Intimidate Parliament sovereign to change measures or levying war, force, threat of force or compel Her Majesty to rebellion or force the President / or legislature of a intimidate the legislature. other serious unlawful means. change Her measures, insurrection against the member of Parliament province by violence or to intimidate authority of the US with the intention to (Cap 200 s 2 – life imprisonment) (life imprisonment) Parliament by overt act compel him to exercise (s 51 of the Criminal or deed. (18 USCS §2383 –10 or refrain from Code – 14 years) years and / or fine) exercise of his lawful (s 3 of the Treason powers. Treason - use force or Treason - levy war to depose the To overthrow the PRC Government or Felony Act 1848 – life Seditious Conspiracy - violence for the sovereign. disestablish the basic system of the state imprisonment) Two or more persons (s 124 of the Penal purpose of by levying war, force, threat of force or conspire to overthrow Code – 7 years and overthrowing the (Cap 200 s 2 – life imprisonment) other serious unlawful means. Treason – levy war to by force the US fine) Government of Canada depose the Queen from Government or levy or a province (life imprisonment) the crown of the UK by war against it etc. Deprive or depose the any overt art or deed President from the (s 46 of the Criminal Broadly covered by inchoate and To codify the inchoate and accomplice (18 USCS §2384 – 20 sovereignty of Code – life accomplice offences of treason offences of subversion (s 3 of the Treason years and / or fine) Singapore imprisonment) Felony Act 1848 - life (Common Law / ss 159A and 159G of (Life imprisonment) imprisonment) see also “Seditious (s 121B of the Penal Do any preparatory act Cap 200 - life imprisonment) conspiracy” above Code - life or conspire to levy war see also “Treasonable imprisonment and fine) offence” above (s 46 of the Criminal Attempt to wage war Code -– life against the imprisonment) Government

(s 121 of the Penal Code – death penalty or life imprisonment and fine)

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Theft of State Secrets

Spying Spying Spying Spying Spying Spying

(Cap 521 ss 3 and 10 - 14 years) (retain existing penalty - 14 years) (s 1 of the 1911 (18 USCS §793 and (ss 3 and 7 of the (ss 6 and 19 of the Official Secrets Act 794 - death penalty / Official Secrets Act - Security of Information and s 2 of 1920 Act - life imprisonment / 10 14 years and $20,000) Act, s 46 of the liable to penal years and / or fine) Criminal Code – life Harbouring spies and other espionage Harbouring spies and other espionage servitude between 3-14 Harbouring spies imprisonment / 10 related offences related offences years) Harbouring spies years) (s 11 of the Official (Cap 521 ss 4-8 and 10 - 2 years on (5 years on indictment, 3 years and Habouring spies (18 USCS §792 - 10 Secrets Act - 2 years Habouring spies indictment, 3 months and $25,000 on $100,000 on summary conviction) years and / or fine) and $2,000) summary conviction) (s 7 of the 1911 (s 21 of the Security of Official Secrets Act - 2 Unlawful disclosure of Unlawful disclosure Information Act – 10 Unlawful disclosure of information Unlawful disclosure of information years on indictment, 3 classified information years) obtained by virtue of official position or obtained by virtue of official position or months and / or fine (s 5 of the Official unauthorized disclosure. unauthorized disclosure or unauthorized on summary (50 USCS §783 and 18 Secrets Act - 2 years Unlawful disclosure access. conviction) USCS §798 - 10 years and $2,000) (Cap 521 ss 13-20 and 25 - 2 years and and / or fine) (ss 4, 13, 14, 16-18 of $500,000 on indictment, 6 months and (5 years and $500,000 on indictment, 3 Unlawful disclosure Failure to safeguard the Security of $50,000 on summary conviction) years and $50,000 on summary conviction) information or return Information Act – life (ss 1-6 of the Official documents imprisonment / up to Failure to safeguard protected Failure to safeguard protected information Secrets Act 1989 - 2 14 years) information or return documents. or return documents. years and / or fine on (s 5 of the Official indictment, 6 months Secrets Act – 2 years Failure to safeguard (Cap 521 ss 22 and 25 - 3 months and (Retain existing offences - 3 months and and fine on summary and fine) information or return $25,000) $25,000) conviction) documents

Failure to safeguard (s 4 of the Security of information or return Information Act – up documents to 14 years on indictment, 12 months (s 8 of the Official and / or $2,000 on Secrets Act 1989 - 3 summary conviction) months and/ or fine)

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Organized Crime against National Security

The Societies Ordinance already Organizing or supporting (e.g. being a USA empowers the Secretary for Security to member of or providing financial aids to) a prohibit the operation of a society on proscribed organization Organize any society which advocates the overthrow or destruction of any government in the US grounds of, inter alia, national security. by force or violence; become members of such society knowing its purposes. Such a society would become an unlawful (7 years and unlimited fine) society. It is then an offence to organize (18 USCS §2385 - 20 years and / or fine) or support (e.g. being a member of or providing financial aids to) an unlawful Singapore society. Managing or being a member of an unlawful society (i.e. an unregistered society. A society (Cap 151 s 8 and ss 18-23 - Up to 3 years shall be refused registration if its registration would be contrary to the national interest) and $100,000) (s 14 of the Societies Act – 5 years or 3 years and / or $3,000)

Note 1: The proposals are based on amendments to existing ordinances, such as the Crimes Ordinance, the Societies Ordinance and the Official Secrets Ordinance. It is not our intention to introduce a new ordinance on national security.

Security Bureau September 2002

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