14. Seditious Intention (Sections 24 Safeguarding National Security Ordinance)

14. Seditious Intention (Sections 24 Safeguarding National Security Ordinance)

Section 24 of the Safeguarding National Security Ordinance, which replaced sections 9 and 10 of the Crimes Ordinance, makes it an offence to do any act, utters words, prints, publishes, sells, offers for sale, distributes, displays, reproduces or imports any publication that has a seditious intention.  The maximum penalty is 7 years of imprisonment.  If this offence is committed with seditious intention and in collusion with external force is punishable by up to 10 years of imprisonment.

Possessing publications that has seditious intentions without reasonable excuse can attract a term of imprisonment for up to 3 years.

A seditious intention can either be found in the act or words of a person or contained in the words of publications.  It is an intention to:

“section 23(2)(a) …to bring a Chinese citizen, Hong Kong permanent resident or a person in the HKSAR into hatred, contempt or disaffection against the following system or institution—

• the fundamental system of the state established by the Constitution of the People’s Republic of China;
• a state institution under the Constitution of the People’s Republic of China; or
• the following offices of the Central Authorities in Hong Kong—
  • the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region;
  • the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region;
  • the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region; or
  • the Hong Kong Garrison of the Chinese People’s Liberation Army;

(b) an intention to bring a Chinese citizen, Hong Kong permanent resident or a person in the HKSAR into hatred, contempt or disaffection against the constitutional order, executive, legislative or judicial authority of the HKSAR;

(c) an intention to incite any person to attempt to procure the alteration, otherwise than by lawful means, of—

1. any matter established in accordance with the law by the Central Authorities in relation to the HKSAR; or
2. any matter established in accordance with the law in the HKSAR;

(d) an intention to cause hatred or enmity amongst different classes of residents of the HKSAR or amongst residents of different regions of China;

(e) an intention to incite any other person to do a violent act in the HKSAR;

(f) an intention to incite any other person to do an act that does not comply with the law of the HKSAR or that does not obey an order issued under the law of the HKSAR."

However, under sub-section 23(3) and (4), the acts, words, or publications that are done with the following intentions are not with a seditious intention:

(a) an intention to give an opinion on the system or constitutional order mentioned in subsection section 23(2)(a) or (b), with a view to improving the system or constitutional order;

(b) an intention to point out an issue on a matter in respect of an institution or authority mentioned in subsection section 23(2)(a) or (b), with a view to giving an opinion on the improvement of the matter;

(c) an intention to persuade any person to attempt to procure the alteration, by lawful means, of—

1. any matter established in accordance with the law by the Central Authorities in relation to the HKSAR; or
2. any matter established in accordance with the law in the HKSAR;

(d) an intention to point out that hatred or enmity amongst different classes of residents of the HKSAR or amongst residents of different regions of China is produced, or that there is a tendency for such hatred or enmity to be produced, with a view to removing the hatred or enmity.

The sedition offence can be committed without any intention to incite other people to public disorder or violence.

Section 26 of the Safeguarding National Security Ordinance provides a defence to the offence of importing seditious publication if the importer can offer evidence that he did not know that the imported publication had a seditious intention at the time of the alleged offence.

The offence of sedition, under the previous sections 9 and 10 of the Crimes Ordinance, was considered by the Court of Appeal in HKSAR v. Tam Tak Chi [2024] HKCA 231.  The Court of Appeal held that criticising the government, the administration of justice; or engaging in debates about or even raising objections to government policy or decision, however strongly, vigorously or critically, do not constitute a seditious intention.

Sedition generally relates to the dissemination of words, which requires a sufficient degree of adaptive flexibility for it to be effective and responsive enough to cope with the change in technological advances, time and circumstances, such as societal evolution or political climate.  Words must be understood against the contemporaneous socio-cultural and political setting of society.  Sedition offences must be sensitive to time, issue and context in which the words are spoken.

The scope of ‘Central Authorities’

Section 23(2)(a)(iii) of the Safeguarding National Security Ordinance sets out the list of following bodies as “Central Authorities” for which the intention to bring them into “hatred, contempt or disaffection” would amount to the sedition offence: i) the Liaison Office of the Central People’s Government, ii) the Office for Safeguarding National Security, iii) the Office of the Commissioner of the People’s Republic of China, and iv) the Hong Kong Garrison of the Chinese People’s Liberation Army.”