State Secrets in the HKNSL - Zheng Tang and Xu Huang Wuhan University, Institute of International Law Academy of International Law and Global ...

State Secrets in the HKNSL
              Zheng Tang and Xu Huang
     Wuhan University, Institute of International Law
  Academy of International Law and Global Governance

1. Introduction
• Article 29 of the HKNSL
   • 第二十九条 为外国或者境外机构、组织、人员窃取、刺探、收买、非法
     提供涉及国家安全的国家秘密或者情报的……均属犯罪
     ……
     本条第一款规定涉及的境外机构、组织、人员，按共同犯罪定罪处刑。
• Three deficits: (1) the ambiguous concept, (2) the low threshold, (3)
  the lack of procedural due process
• Three impacts: (1) press freedom, (2) government transparency (3)
  business security

2. State secrets legislation in Hong Kong
and HKNSL
• Article 29 of the HKNSL
   • 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.
• Official Secrets Ordinance (OSO): Narrow and inconsistent with
  Art 23 of the Basic Law
• The Interpretation authority: NPCSC and Hong Kong courts (?)

3. State Secrets or Intelligence: Risk of
Over-classification-(1) Ambiguous definition
• Main difference between mainland China and Hong Kong
   • Mainland: source-based approach
   • OSO: class-based and prejudice-based approach
• The definition of state secrets in PRC State Secrets Law
   • Art 2: matters which relate to the national security and interests as determined
     under statutory procedures and to which access is vested in a limited scope of
     persons during a given period of time
   • Include: politics, economy, national defense, foreign affairs, military affairs,
     science and technology, social development and criminal offenses, and classified
     matters as determined by the state secrecy administrative department
• The definition of intelligence: the judicial interpretation of Article 111
  of the PRC Criminal Law by the Supreme People’s Court

3. State Secrets or Intelligence: Risk of Over-
classification-(2) classification authority
• Centralized macro-control of the classification by the National
  Administration for the Protection of State Secrets (NAPSS)
• Decentralized classification system in China, in the absence of a
  practically measurable classification standards or guidance
• Classification authority in HK? –unclear in NSL

3. State Secrets or Intelligence: Risk of Over-
classification-(3) courts’ role in classification
• HK courts may have no competence to classify state secrets in
  mainland China
• Unclear if HK courts have competence to classify or review
  classification of state secrets in HK

(2) Low Threshold
• The offender
   • Unclassified offender
   • Any foreign entities
• Damages?
   • OSO: the unlawful disclosure should be damaging, unless the offender
     is a member of the security or intelligent services
   • PRC: Art 111 Criminal Law– damages only relevant to penalty
   • NSL: not effect-based; damages may only be relevant to penalty
• Mens rea
   • Art 111 of PRC Criminal Law: the perpetrator need to know or ought
     to have known the information is classified, or relates to national
     security and interests

(3) Due Process Protection
• Challenge to due process
    • No public hearing (Art 41)
    • No jury trial (Art 46)
• Balance between national security and procedural
  justice
    • Independent and impartial tribunal
    • Rigorous, adversarial process
    • Publicly available judgments

Press Freedom
• Article 4 : “[t]he rights and freedoms, including the freedoms of speech,
  of the press, of publication, of association, of assembly, of procession
  and of demonstration … shall be protected in accordance with the law.”
• Conservative judges
• Mainland Approach:
   • Secrecy tradition
   • Regulating Press and Media: 1992 Regulations on Confidentiality in Publishing
     and the Media (CPM Regulations)
   • Regulating journalists and practitioners (Measures for the Administration of
     Information on the Occupational Conduct of News Practitioners)
   • Regulating platform （Provisions for the Administration of Internet News
     Information Services）
   • Control foreign media (Provisions on the Administration of Online Publishing
     Services; Measures for the Administration of Information on the Occupational
     Conduct of News Practitioners; etc.)

Open Government Information
• Citizens’ right to know v State secrets
• Mainland practice:
   • OGI Regulation (ranked lower than ‘SSL’)
   • Government census procedure
   • Social stability exemption
• HK
   • Code of Access to Government Information
   • May conduct the same census procedure under the NSL

Business and Economy
• State secrets or trade secrets?
   • Harm-based approach
   • Identity-based approach
   • Nature-based approach
• Rio Tinto case