Under the new law, the Safeguarding National Security Ordinance, anyone imprisoned for a national security offence cannot be granted remission unless the authorities are satisfied that it will not be contrary to the interests of national security.
If, for example, they received a nine-year sentence, they could get a one-third discount for pleading guilty. With another third off for good behaviour – based on the final sentence handed down – they might serve four years in prison. Taking time on remand into account, they could have been released soon.
Article 23 changed that for them.
No drama, but reasons for concern?
Hong Kong has experienced a relatively quiet first month since the new legislation was implemented on March 23, unlike four years ago when Beijing imposed the national security law banning secession, subversion, terrorism and collusion with foreign forces.
Article 23 filled in gaps in that law. The Safeguarding National Security Ordinance covers 39 offences divided into five categories: treason; insurrection, incitement to mutiny and disaffection, and acts with seditious intention; sabotage; external interference; and theft of state secrets and espionage.
The domestic security law was required under the city’s mini-constitution, the Basic Law, but an earlier attempt to introduce it in 2003 was abandoned following massive protests.
Some crimes under Article 23 are punishable with life imprisonment, yet the new law sparked no protests at home, and drew a relatively muted response overseas.
So far, no one has been arrested under the new law, unlike in 2020 when 15 people were detained within the first month of Beijing’s security law.
In other ways, however, there are signs that the change has had an effect.
Some Hongkongers have removed protest slogans at home or thrown away copies of Apple Daily, the tabloid that shut down and whose founder, Jimmy Lai Chee-ying, is on trial for conspiracy to print and distribute seditious publications, and collusion with foreign forces.
Some companies have taken precautionary measures on navigating the law by reviewing their operations since last year, such as carrying out employee screening and due diligence checks on suppliers.
The United States, United Kingdom, Japan, Canada, European Union and the United Nations all expressed concerns about the new law, warning that the “vague” and “broad” legislation would further erode civil liberties and potentially affect their organisations in Hong Kong.
Australia and Taiwan revised their travel advisories to warn their residents over the law.
Some in Hong Kong expressed worries that if overseas concerns were not addressed decisively, the city’s economic development could be derailed.
The Post has learned that internally, the government has not planned any large-scale publicity campaign or high-level delegations to explain the security law overseas.
Ronny Tong Ka-wah, a top government adviser, said: “No matter how hard you explain, critics from the West always accuse Hong Kong of lacking a democratic system and of using the law to suppress dissent.”
A lawyer and member of the Executive Council, a key decision-making body, he said the government knew the law could not be used frequently or it would just “fulfil Western prophecies”.
“The proof of the pudding is in the eating. The only thing the government can do is to be judicious in handling relevant cases. Prosecute only if absolutely necessary,” he said.
“The next one to two years are key. If the government needs to use this law, it means unstable elements still persist in society.”
Foreign powers in ‘wait-and-see’ mode
Western diplomats in Hong Kong, speaking on condition of anonymity, told the Post that foreign powers were in a “wait-and-see” mode before deciding their next steps.
“The most important factor is how the law is going to be applied,” a European diplomat said.
He said the nature of Article 23 – as legislation required under the Basic Law, unlike the 2020 national security law imposed by Beijing – could explain the largely muted response.
“We need to tread cautiously to avoid accusations of interference with internal affairs from Beijing,” the diplomat said.
Another European diplomat said foreign powers would be closely monitoring the progress of high-profile security trials – including those of Apple Daily founder Lai and the 47 opposition activists – to determine their next steps.
But the diplomat said any steps taken should be timed appropriately and carry weight, as too-frequent criticisms could lead to “fatigue”.
For now, the diplomat added, politicians and officials from the West were likely to refrain from visiting Hong Kong. The Post learned that a culture minister from a European country declined an invitation to a mega event in Hong Kong, choosing to avoid any controversy over the new security law.
But both diplomats said dealings were proceeding as usual for the business community, with several two-way delegations continuing as planned later this year.
“Most sizeable foreign enterprises in Hong Kong have established footholds in mainland China over the years. High emphasis on national security is nothing new for them,” one said.
But some foreign chambers of commerce in Hong Kong said they needed more assurances and explanations on how the new security law would be applied and especially where the “red line” for external interference offences lay.
‘Seeing is the best way of believing’
In the run-up to Hong Kong passing the new law, security chief Chris Tang Ping-keung and justice secretary Paul Lam Ting-kwok, who spearheaded the Article 23 legislation, took a hardline approach in rebutting criticism.
Similarly, Beijing’s foreign ministry issued strongly worded responses to foreign concerns.
More recently, however, the Hong Kong government has shifted its strategy towards a “softer, reactive” approach, according to a senior official who spoke to the Post on condition of anonymity.
“The goal is to redirect the narrative to focus more on the economy, instead of issuing further warnings [related to the law],” he said.
Behind the scenes, easy-to-understand infographics on the law were being prepared for the public, along with explanatory materials for businesses, he said.
A key message the government hoped to emphasise was that offences under Article 23 would need a high prosecution threshold and ordinary people would not run afoul of the law unless there was an intention to endanger national security.
Executive Council convenor Regina Ip Lau Suk-yee, a former security chief, had earlier recommended using “people’s diplomacy” to deal with criticism, saying a “wolf warrior” approach by city officials would not ease Western misunderstanding of Hong Kong.
Former commerce chief Frederick Ma Si-hang suggested sending high-profile government-business delegations to the US and Europe to address concerns, but that idea drew a lukewarm response.
A pro-Beijing banker recalled “embarrassing circumstances” occurring four years ago when he publicly defended the national security law.
He declined to elaborate on what happened, but said: “It was not about my reputation, but rather the bank’s international connections. This time, I have all the excuses to not get my hands wet.”
Internally, the government was also against organising visits to explain Article 23, as it was sceptical that “biased” Western politicians would be open to the perspective of Hong Kong officials.
The government insider said rather than spending heavily on large-scale publicity and rebranding campaigns, the city’s strategy of holding mega events could work better in the long run to dispel doubts about Hong Kong.
The government has earmarked HK$100 million (US$12.8 million) in the current budget to boost promotions for mega events over the next three years, such as the coming French May and Chinese Culture Festival.
“The numerous mega events not only boost tourism and local consumption, but also offer foreigners the opportunity to experience a safer Hong Kong, contrary to warnings they might have heard,” the official said.
“Seeing is the best way of believing. Let them spread good Hong Kong stories by word of mouth.”
But prominent Hong Kong communications specialist Chris Kyme was not convinced that “one-off, ad hoc” mega events were sufficient to do the job.
Recounting how a friend in the US had sent him a video clip of deserted shopping centres and asked if he was safe, Kyme said: “Hong Kong is facing a perception problem.
“What’s missing to me is a long-term strategy. What is the new tagline for Hong Kong?”
David Dodwell, executive director of the Hong Kong-APEC Trade Policy Study Group, a think tank, said negative attitudes towards Hong Kong’s position would persist for some time.
Foreign firms in Hong Kong review operations for domestic national security law
Foreign firms in Hong Kong review operations for domestic national security law
He urged the government to engage with Hongkongers who had migrated from the city in recent years, mainly to Western countries, to keep the connection.
“Universities in Western countries and many journalists will turn to them for their opinion on what’s happening in Hong Kong, in preference to trusting any commentary from a government official,” he said.
When the Beijing-imposed national security law was enacted, a number were indeed interviewed by foreign media. As the domestic security law moves into its second month, Secretary for Justice Lam told the Post in an interview it was not appropriate to compare its application with the Beijing-decreed law, pointing to the very different social atmosphere now and then.
He said the government would use the law whenever necessary or otherwise it would be a “useless piece of paper”, while dismissing suggestions that the change of prison rules were unfair to those already behind bars before the enactment of the new law.
Lam also said he was “very confident” there was still discretion for early release for prisoners who behaved themselves and did not “act in a way that causes us concern”.
That faith will be tested soon as the 47 defendants in the subversion case will return to court to hear the verdict on their cases later this year at the earliest.
