Official Secrets Ordinance in the context of legislation on Article 23 of the Basic Law being studied to prevent espionage

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Chris Tang Ping-keung

26th January 2022 – (Hong Kong)  Legislative Councillor Lee Chun-keung raised the issue during the Legislative Council meeting on espionage activities conducted by foreign governments in Hong Kong. He said that as China’s economy and national strength continue to grow, western countries led by the United States seek to maintain their hegemony based on a zero-sum mentality, and openly treat China as a target to fight against in various areas. The underlying cause is that the United States and western countries do not have the positive mindset to understand the concepts of peaceful coexistence such as a community with a share future for mankind, peaceful development and prospering together as advocated by our country. The politicians in the United States and western countries have deliberately ganged up under the guise of the “China Threat Theory” in an attempt to bring the world back to a Cold War-style standoff.

To achieve the goal of suppressing the development of China, the Central Intelligence Agency (CIA) of the United States has even set up a “China Mission Centre” last year to “address the global challenge posed by the People’s Republic of China” as it so claimed. It has also alleged that with China being the most important geopolitical threat faced by the United States, the CIA has to consolidate various resources and capability it possesses in its work against China, and especially recruit and train up Mandarin-speaking agents. Furthermore, the Chief of the Secret Intelligence Service (also known as MI6) of the United Kingdom has publicly mentioned that MI6 recruits clandestine agents (i.e. “spies” from the eyes of the public) from countries and organisations all over the world; is deepening its understanding of China (i.e. “infiltration” from the eyes of the public); and makes things happen that would otherwise be impossible to achieve by operating in secrecy everywhere within the worldwide surveillance web.

 It can thus be seen that spies constitute an important part in the covert operation of these organisations. Spies, as we know it, achieve the goal of gaining for their countries’ benefits or influence in geopolitics usually through means such as infiltrating important state authorities, probing intelligence and state secrets, inciting disaffection of public servants, paying and grooming agents, with a view to stirring up troubles, intensifying social conflicts, advocating anti-government beliefs or even overthrowing state powers through violence and other means. As a matter of fact, the Snowden incident which occurred earlier revealed that the United States had conducted worldwide surveillance through the Prism programme. A Hong Kong journalist reported that Snowden had shown her documents which disclosed that the United States had been hacking hundreds of computers on the Mainland and in Hong Kong. These acts of espionage present a significant threat to our national security.
 
As a special administrative region of the People’s Republic of China, Hong Kong has been implementing the principles of “one country, two systems”, “Hong Kong people administering Hong Kong” and a high degree of autonomy. Therefore, it differs from the Mainland in areas such as immigration policy, regulation of economic activities and socio-cultural environment. Making use of the unique environment of Hong Kong, certain countries have been attempting to engage in activities endangering our national security, or even to foment a “colour revolution” in Hong Kong. The serious violence since June 2019 is a vivid example of this. In fact, an organisation named Open Technology Fund, which receives grants from the U.S. Agency for Global Media as part of the United States Government, openly admitted in a Congress hearing in September 2020 that it had funded the development of secure communication technologies used by activists in Hong Kong. As reported by the Time magazine of the United States, rioters in Hong Kong used relevant technologies in encrypting their communication content. The Open Technology Fund also made several payouts to groups in Hong Kong since June 2019. Separately, there were members of organisations outside Hong Kong (including a council member of the “New Power Party” which is a “pro-independence” party in Taiwan) openly raising funds for the rioters or donating to them supplies and equipment, including helmets, gas masks and filter cartridges, etc.
 
 What makes Hong Kong people discern the truth is that in a court case concerning offences endangering national security which hearing had commenced, a person committed to trial revealed that a former overseas intelligence agent and Jimmy Lai Chee-ying, former chairman of the Board of Next Media, were the masterminds as well as the financial backers behind an anti-China group “Stand with Hong Kong Fight for Freedom”. The group had been continuously urging foreign countries to impose sanctions on Hong Kong and Mainland officials.
 
The above incidents represent only the tip of the iceberg. The Ministry of Foreign Affairs earlier published the “Fact Sheet: U.S. Interference in Hong Kong Affairs and Support for Anti-China, Destabilising Forces”, listing 102 examples which clearly reflect the malicious acts of the United States over the years in colluding with anti-China, destabilising forces to seriously endanger national security. In view of this, the HKSAR Government must handle acts and offences of an espionage nature in a targeted manner to prevent incidents endangering national security from occurring in Hong Kong again.
 
In response, Secretary for Security, Chris Tang Ping-keung said that Part II of the existing Official Secrets Ordinance provides for the regulation of “espionage”, which covers the prohibition of, among others, acts to approach, inspect, pass over, enter or be in the neighbourhood of a prohibited place; compile information that is useful to an enemy; and obtain, collect, record or publish official secrets that are useful to an enemy. Part III of the Official Secrets Ordinance also prohibits the unlawful disclosure of protected information.
 
 In addition, Article 29 of the Hong Kong National Security Law (HKNSL) also stipulates that a person who steals, spies, obtains with payment, or unlawfully provides State secrets or intelligence concerning national security for a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China shall be guilty of an offence.
 
 The long-standing position of the HKSAR Government is to combat espionage activities endangering national security in Hong Kong in accordance with the law. Specifically, given that these spies and their agents are all backed by rivals of a national level, actions must be taken to minimise the risks which they may bring about. To avoid impacting investigation work and necessary enforcement actions to be taken in future, we should not disclose further details of our actions. Tang said that he can assure Legislative Council members that the Police have all along been and will keep on collecting and analysing intelligence concerning threats to national security in a proactive manner, as well as investigating cases endangering national security rigorously in collaboration with other relevant law enforcement agencies, including conducting intelligence-led operations. Besides, the HKSAR Government will continue to enhance information sharing and operations coordination with the Office for Safeguarding National Security of the Central People’s Government in the HKSAR pursuant to the mechanism established under Article 53 of the HKNSL.
 
Although the law enforcement agencies of the HKSAR are committed to combating acts and offences of an espionage nature, as pointed out by Lee Chun-keung in his question, the relevant local legislation was enacted many years ago and cannot fully address the criminal acts of espionage and theft of state secrets at present.
    
In this regard, the government is now actively studying with the Department of Justice on enhancing the Official Secrets Ordinance in the context of legislation on Article 23 of the Basic Law, so as to better prevent acts of espionage and theft of state secrets.
 
Tang seeks to commence consultation before the end of the current term of the Government, and to introduce the Bill to the Legislative Council for scrutiny in the second half of this year.

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