Further Comments on the National Security (Legislative Provisions) Bill:

The proposed definition of "subversion"

 

Albert H. Y. Chen

Faculty of Law, University of Hong Kong

 

 

1.     One of the most important and interesting technical legal issues raised by the proposed definitions of subversion and secession in the Bill is what exactly is the actus reus of each of the offences. In this regard, it is important to note the following:

 

(a)    The Document is not proposing that it is an offence (of subversion) to engage in war, or to use "force or serious criminal means that seriously endangers the stability of the PRC", for the purpose of disestablishing the basic system of the PRC, overthrowing the Central People's Government (CPG) or intimidating the CPG (hereinafter called "Rule 1"). Instead, it is proposing to make it an offence (of subversion) to "disestablish the basic system of the PRC as established by the Constitution of the PRC; overthrow the CPG; or intimidate the CPG" by using "force or serious criminal means that seriously endangers the stability of the PRC or by engaging in war" (hereinafter called "Rule 2").

 

(b)   The Document is not proposing that it is an offence (of secession) to engage in war, or to use "force or serious criminal means that seriously endangers the territorial integrity of the PRC", for the purpose of withdrawing any part of the PRC from its sovereignty (hereinafter called "Rule 3"). Instead, it is proposing to make it an offence (of subversion) to "withdraw any part of the PRC from its sovereignty" by "using force or serious criminal means that seriously endangers the territorial integrity of the PRC; or engaging in war" (hereinafter called "Rule 4").

 

2.     It should be stressed that there is a significant difference between Rules 1 and 2, and between Rules 3 and 4. Rules 1 and 3 contain significantly lower threshold requirements for subversion and secession (i.e. make it much easier for the offences to be committed). Consider the following example. Suppose people in a demonstration in Hong Kong against one-party rule in China set fire to vehicles and shops ("causing serious damage to property" is one of the "serious criminal means" as defined in the Bill[1]) while shouting the slogan "down with the Chinese Communist Party". This would probably amount to the offence of subversion under Rule 1, but is less likely to amount to subversion under Rule 2. The issue raised by this example is what exactly is the actus reus of subversion. The structure of the problem is similar in the case of secession.       

 

3.     Rules 2 and 4, rather than Rules 1 and 3, have been adopted in the Bill. The actus reus required by Rules 2 and 4 is more onerous (for the prosecution to establish) than the actus reus required by Rules 1 and 3. Thus under Rule 2, the actus reus is not just engaging in war or using "force or serious criminal means that seriously endangers the stability of the PRC". It is necessary to consider whether such acts really have the effect of (a) "disestablishing the basic system of the PRC", (b) "overthrowing the CPG", or (c) "intimidating the CPG". As far as (b) is concerned, it may be pointed out that the offence is committed only if the offender has actually succeeded in overthrowing the Chinese government, in which case there would be no government left to prosecute him. Similar considerations may apply to limb (a) of subversion as well as the offence of secession, which is committed only if the offender has actually succeeded in withdrawing a part of the PRC from its sovereignty. Thus in practice it seems unlikely that any one will actually be charged with limbs (a) or (b) of the subversion offence or with secession. It is more likely that the inchoate offences relating to subversion and secession, such as conspiracy and attempt, will have greater significance in practice. For example, where an accused is charged with attempt to commit subversion, the court will apply the common law "doctrine of proximity" in assessing his actus reus. The doctrine of proximity distinguishes between an act which remotely leads towards the commission of a crime and an act which is more immediately connected with the commission of the crime, even where both acts are committed with an intention to commit the crime ultimately. In the example given, the court will determine whether the acts committed by the accused (involving war, or force or serious criminal means that seriously endangers the stability of the PRC) are sufficiently proximate to the realisation of the ultimate objective of (a) disestablishing the basic system of the PRC, (b) overthrowing the CPG or (c) intimidating the CPG.

 

4.     It is submitted that the most problematic aspect of the Bill as far as the law of treason, subversion and secession is concerned is limb (c) of the proposed definition of subversion --- "intimidating the CPG". Whether the offence of subversion can be established on the basis of limb (c) depends not only on (i) what concrete acts have been done by the accused (in terms of war, force or serious criminal means), and (ii) his intention to intimidate the CPG, but also on (iii) whether the CPG has been intimidated.[2] How can it be established as a matter of objective fact that the CPG has been intimidated? This, then, is the crux of the problem. The problem also arises where the accused is charged with attempting to commit subversion on the basis of limb (c). The question there is whether the acts of the accused are sufficiently proximate to the realisation of the objective of intimidating the CPG.

 

5.     It is submitted that limb (c) of the subversion offence is too vague and indeterminate, and fails to satisfy the requirement of clarity and precision in the criminal law. Given that subversion is basically a "political offence", clarity and precision are particularly important here. It is not a sufficient answer to say that as the word "intimidate" already appears in the existing law of treason, there is no reason why it should not be employed in the definition of subversion. In the law of treason, the word "intimidate" is not used to define the actus reus of the offence; it is only used in the context of the mens rea. The relevant provision in the existing law is section 2(1)(c) of the Crimes Ordinance, under which treason is committed if the accused "lev[ies] war against Her Majesty" (i) "with the intent to depose Her Majesty" or (ii) "in order by force or constraint to compel Her Majesty to change Her measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, Parliament or the legislature of any British territory" (emphasis supplied).[3] In this provision, the actus reus of the offence is "levying war", and one limb of the mens rea is "to intimidate Parliament". Using the concept of "intimidation" as part of the mens rea of treason is one thing; using it as part of the actus reus of subversion is another.

 

6.     I would propose that limb (c) of the proposed offence of subversion be deleted. Limbs (a) and (b) are sufficient for the purpose of constituting the offence.

 

 

 

 

Professor Albert H.Y. Chen

Faculty of Law

University of Hong Kong

 

8 April 2003