The rule of law is the cornerstone of Hong Kong's success, and compliance with the law is the basic obligation of Hong Kong citizens.
And because encouraging law-abiding is the goal, law enforcement and prosecution work should be based on clear and definite principles for the community, so that the public can have laws to abide by.
At the same time, legal restrictions must be balanced with citizens' rights and freedoms, including freedom of speech and the press guaranteed by the Basic Law, and freedom from arbitrary or unlawful arrest and detention.
On Monday (April 11), the National Security Division of the Police Force arrested Ou Jialin, a senior media personality and professional consultant of the School of Journalism and Communication of CUHK, on suspicion of "conspiracy to publish seditious publications" under Sections 9 and 10 of the Crimes Ordinance , the incident left a lot of doubts to the society.
The line between criticism and incitement must be drawn
Au Jialin worked in TVB News for nearly 20 years, and later hosted a program at RTHK and wrote a column in a newspaper.
His radio hosting job ended in June last year, and he bid farewell to newspaper readers in January.
According to reports, the arrest was related to an article he had published or reprinted in Stand News.
However, just as Zheng Chenglong, a former member of the IPCC who once hosted a radio program with him, said, Ou Jialin's comments have always given people a sense of stability. Why is his article suspected of committing the crime of incitement?
Looking back at the arrest of a number of high-level officials of the "Stand News" at the end of December last year, "Hong Kong 01" quoted a source that the articles involving incitement included an editorial reprinted from Ou Jialin entitled "Apple" first issue: "We Belongs to Hong Kong” article.
The article criticized the serious damage to Hong Kong's judiciary, claiming that the "Hong Kong National Security Law" has replaced all laws in Hong Kong, seriously undermining Hong Kong's human rights and the rule of law.
Criticism of the government and the judiciary, even if it is not necessarily pertinent, does not amount to the crime of sedition. The question is how to distinguish between the two.
This is not the first time that such questions have arisen.
After the senior officials of Stand News were arrested, the public asked which articles constituted incitement. At that time, the police only said that depending on whether the articles had inciting intentions, they would make people hate the government and the Hong Kong judiciary. Media workers "should know what is reporting, what is biased, and what is inflammatory."
The latter artist was arrested on suspicion of inciting intent. The police cited examples including smearing the government's anti-epidemic strategy and boycotting anti-epidemic measures, which caused some citizens to wonder the difference.
Authorities are vague and society is at a loss
The offence of sedition is found in Sections 9 and 10 of the Crimes Ordinance. Acts with intent to cause hatred or contempt for the Hong Kong government, or to cause hatred, contempt or incitement to betrayal of the Hong Kong judiciary, etc. The first offender shall be imprisoned for up to two years .
The Ordinance also stipulates that if the purpose is to point out the government's mistakes in administration and prompt the authorities to make improvements through legal channels, it does not have seditious intent, and prosecution can only be initiated within six months of the crime.
It is true that incitement in the name of freedom of speech should be cracked down, but the line between criticism and incitement must be clearly defined, so as not to undermine legitimate freedom of speech by cracking down on incitement.
However, the explanations given by the government authorities are not necessarily sufficient, and the recent arrests by the police do not appear to be limited to acts within the past six months.
For example, after the arrest of the senior officials of Stand News, when the then Chief Secretary for Administration, Li Jiachao, was asked how to distinguish between news and seditious publications, he only said that "the police's actions are based on evidence and action needs and take measures they deem appropriate."
After Ou Ka-lin was arrested on Monday, the chief executive, Carrie Lam, responded, "The law must be followed, the law must be strictly enforced, and lawbreakers must be held accountable are values that our society under the rule of law has always valued, and we will act in accordance with these important values. Press freedom and speech Freedom is guaranteed by the Basic Law".
The Chief Executive and the Chief Secretary for Administration have the responsibility to instruct the relevant departments to explain more clearly to the society, even if they do not understand individual cases.
Since January, some newspapers have published statements stating that they "have no intention of inciting hatred, dissatisfaction or hostility towards the government or other communities."
Of course, such a statement does not necessarily exempt from criminal responsibility, but it fully reflects that the definition of incitement by some media is ambiguous, and they are not sure to grasp it properly.
The government has the responsibility to protect citizens' freedom of speech. The Court of Final Appeal has pointed out in the past that the government's restrictions on basic rights should not be ambiguous, and the authorities should not simply ask citizens to examine their speech by themselves to avoid breaking the law.
Balancing free speech laws to be used sparingly
Furthermore, the crime of sedition itself is not without controversy, and even the SAR government once planned to abolish it.
When the legislation of Article 23 of the Basic Law was promoted in 2003, the Bill proposed to abolish the crime of sedition under the Crimes Ordinance and introduce a new crime of sedition, stipulating that inciting others to commit treason, subversion or secession constitutes a The offence of sedition and the publication of seditious publications are also dealt with in the same way.
In the Tam Tak-chi case, which was concluded in the District Court last month, the defense challenged the constitutionality of the crime of sedition, arguing that it contradicted freedom of speech.
In his judgment, Judge Chen Guangchi pointed out that "the crimes of the Ordinance cannot be prescribed rigidly, because in many cases, with the changes in the environment, the times, or the social atmosphere, the Ordinance must keep pace with the times."
Fu Hualing, dean of the Faculty of Law at the University of Hong Kong, said that the crime of incitement "should not and will not become a normal crime." After the social atmosphere has not been politicized and returned to normal, there is no need for the authorities to use the crime of incitement.
In addition, Chen Guangchi stated in his judgment that "the crime of incitement is a crime that endangers national security under the existing laws of the SAR. Naturally, restrictions are imposed to protect national security. This is also in line with the collective interests of society to achieve social peace and order." Fu Hualing Therefore, it is considered that speech that constitutes incitement not only causes hatred, but also may directly or indirectly lead to social unrest and political instability, and points out that "comments on politics do not constitute a crime; criticism of the government does not constitute a crime. The crime of incitement does not constitute a crime. Not a punishment for the speech itself, not even a ban on some insulting or offensive speech.”
The interpretation of the district court does not rule out revisions in the higher courts in the future, and the statement that it is abnormally used and may cause unrest is only Fu Hualing's words, but in any case, the combination of the two will at least give the society a clearer interpretation.
Regardless of whether the Department of Justice and the police have the same understanding, they also have the responsibility to make it clear to the public.
Only in this way can citizens more confidently abide by the law and together strengthen the spirit of the rule of law in Hong Kong.
What Hong Kong needs is self-revolution. "Double Tenth Day" is a lesson that Hong Kong needs to learn. Put down your political glasses and listen to Ma Guan about the law.