Referendum to decide on Hong Kong independence constitutes crime of subverting the country

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5th July 2020 – (Hong Kong) The National Security Law of Hong Kong SAR has been officially implemented in Hong Kong. Professor Albert Chen Hung-yee, a member of the Basic Law Committee, said this morning (5th) that if someone planned a referendum to decide whether Hong Kong wanted independence and won the support of all countries in the world, he believes it would constitute a crime of subverting the country in violation of the national security law.

If someone donated money or resources to support the cause, the action will also involve the crime of subverting the country.

Regarding the police’s arrest of persons holding the placards with slogan “Liberate Hong Kong, revolution of our times” on 1st July, Chen believes that the National Security Law of the Hong Kong SAR does not expressly prohibit the possession of Hong Kong-independence items. The police have no right to interpret the law, and the arrest does not reflect the interpretation of the law. It still depends on whether the Department of Justice decides on the prosecution, whether there is a reasonable opportunity for a conviction based on evidence and the relevant prosecution criteria. It still has to be decided by the court in the future. He also pointed out that he believes the Standing Committee of the National People’s Congress has considered the principle of ‘one country, two systems’, and has not applied the provisions of the Mainland’s National Security Law to the National Security Law of the Hong Kong SAR.

He pointed out that in the crime of subverting the state power, the prosecution threshold for the National Security Law is relatively high. It is illegal to subvert the state power by force, threat of use of force, or other illegal means, so he wrote an article to criticise the government that it is not a crime to incite others legally without use of force to subvert state power or to change the political system of Hong Kong or the Mainland. The Hong Kong and Macau Affairs Office earlier stated that if there were fake rumours that someone was killed by the police at the Prince Edward MTR Station, it would be a crime to cause malicious hatred in the police force. Chen did not agree with the relevant statement. The provisions of the National Security Act of Hong Kong SAR do not implicate persons who spread fake news and it does not incite hatred towards central government or the SAR government.

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