Safeguarding National Security Ordinance/Part 6

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Part 6
External Interference Endangering National Security and Organizations Engaging in Activities Endangering National Security

Division 1—External Interference Endangering National Security

52. External interference endangering national security

A person who—

(a) with intent to bring about an interference effect, collaborates with an external force to do an act; and

(b) uses improper means when so doing the act,

commits an offence and is liable on conviction on indictment to imprisonment for 14 years.

53. Meaning of bringing about interference effect

(1) In this Division, a reference to bringing about an interference effect is a reference to bringing about one or more of the following effects—

(a) influencing the Central People’s Government or the executive authorities of the HKSAR in—

(i) the formulation or execution of any policy or measures; or

(ii) the making or execution of any other decision,

including influencing an official of the Central People’s Government or of the executive authorities of the HKSAR, or any other officer who is authorized to perform the above function of the official, in performing that function;

(b) influencing the Legislative Council in performing functions (including influencing a member of the Legislative Council in performing functions as such a member), or interfering with any process in connection with the Legislative Council;

(c) influencing a Court in performing functions (including influencing a judicial officer in performing functions as such an officer), or interfering with the administration of justice in the HKSAR;

(d) interfering with any election or any process in connection with an election, including—

(i) influencing any other person in exercising the right to vote, or the right to stand for election, of the person enjoyed in relation to any election under the Basic Law;

(ii) interfering with the process of constituting the Election Committee under section 8 of the Chief Executive Election Ordinance (Cap. 569); and

(iii) interfering with the process under which any other person becomes a member of a District Council under the District Councils Ordinance (Cap. 547);

(e) prejudicing any one or more of the following relationships—

(i) the relationship between China and any foreign country;

(ii) the relationship between the Central Authorities and the HKSAR;

(iii) the relationship between the Central Authorities and any other region of China;

(iv) the relationship between the HKSAR and any other region of China;

(v) the relationship between the HKSAR and any foreign country.

(2) In this section—

election (選舉) means an election set out in section 4(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554).

54. Meaning of collaborating with external force

For the purposes of this Division, a person collaborates with an external force to do an act if one or more of the following circumstances exist—

(a) the person participates in an activity planned or otherwise led by an external force, and the act is an act that the person’s participation in the activity involves;

(b) the person does the act on behalf of an external force;

(c) the person does the act in cooperation with an external force;

(d) the person does the act under the control, supervision or direction of, or on request by, an external force;

(e) the person does the act with the financial contributions, or the support by other means, of an external force.

55. Meaning of using improper means

(1) For the purposes of section 52, the person mentioned in that section (subject person) uses improper means when doing the act mentioned in that section if the person falls within at least one of the descriptions in paragraphs (a), (b) and (c)—

(a) the subject person knowingly makes to a person a material misrepresentation when doing the act or any part of it;

(b) the act or any part of it is done by any one or more of the following ways—

(i) using or threatening to use violence against a person;

(ii) destroying or damaging, or threatening to destroy or damage, a person’s property;

(iii) causing financial loss to a person by other means, or threatening to cause financial loss to a person by other means;

(iv) damaging or threatening to damage a person’s reputation;

(v) causing psychological harm to, or placing undue psychological pressure on, a person;

(c) the act or any part of it constitutes an offence.

(2) For the purposes of subsection (1)(a), a material misrepresentation—

(a) may be made orally or by written representation, and may be made by other conduct; and

(b) may be express or implied.

(3) In this section, a reference to making to a person a material misrepresentation is a reference to making to the person a false or misleading representation that has the effect of preventing the person from discerning—

(a) the fact that the subject person, with intent to bring about an interference effect, does the act; or

(b) the fact that the subject person collaborates with an external force to do the act.

56. Presumption of doing acts on behalf of external force

(1) In proceedings brought against a person (defendant) for an offence under section 52, if the prosecution proves that the defendant, with intent to bring about an interference effect, did an act, the defendant is to be presumed, for the purposes of section 54(b), to have done the act on behalf of an external force as long as the prosecution further proves that—

(a) the defendant communicated with the external force in relation to the intent or a matter in connection with the intent before so doing the act; and

(b) the defendant knew or ought to have known that the act or any part of it—

(i) would result in the external force achieving its aims; or

(ii) would otherwise benefit the external force.

(2) However, the presumption under subsection (1) is rebutted by the defendant if—

(a) there is sufficient evidence to raise an issue that the defendant did not do the act on behalf of the external force; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

57. Extra-territorial effect of this Division

(1) If—

(a) any—

(i) HKSAR resident who is a Chinese citizen;

(ii) body corporate that is incorporated, formed or registered in the HKSAR; or

(iii) body of persons, whether corporate or unincorporate, that has a place of business in the HKSAR,

does any act outside the HKSAR; and

(b) the act would have constituted an offence under section 52 had it been done in the HKSAR,

the resident or body commits the offence.

(2) In this section—

HKSAR resident (特區居民) means—

(a) a Hong Kong permanent resident; or

(b) a person who is qualified to be issued with an identity card under the Registration of Persons Ordinance (Cap. 177) but has no right of abode in Hong Kong under the Immigration Ordinance (Cap. 115).

Division 2—Organizations Engaging in Activities Endangering National Security

Subdivision 1—Preliminary

58. Interpretation

In this Division—

authorized officer (獲授權人員) means a public servant appointed under section 67;

connection (聯繫), in relation to an organization that is a political body, means the following circumstances—

(a) the organization solicits or accepts financial contributions, financial sponsorships or financial support of any kind or loans, or substantive support by other means, directly or indirectly, from a political organization of an external place;

(b) the organization is affiliated directly or indirectly with a political organization of an external place;

(c) any policy of the organization is determined directly or indirectly by a political organization of an external place; or

(d) a political organization of an external place directs, controls, supervises, dictates or participates, directly or indirectly, in the decision making process of the organization;

office-bearer (幹事)—

(a) in relation to an organization, means the president, vice-president, secretary or treasurer of the organization, or a member of the committee or governing body of the organization, or a person who holds in the organization an office or position analogous to any of those mentioned above; or

(b) in relation to a prohibited organization, means a person holding any office or position in the prohibited organization other than that of an ordinary member;

organization (組織) means—

(a) a society as defined by section 2(1) of the Societies Ordinance (Cap. 151);

(b) a person listed in the Schedule to that Ordinance; or

(c) any other body, whatever its nature and regardless of whether the body is formed or established pursuant to, or is operated in accordance with, any object or aim;

political body (政治性團體) means—

(a) a political party or an organization that purports to be a political party; or

(b) an organization whose principal function or main object is to promote or prepare a candidate for an election set out in section 4(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554);

political organization of an external place (境外政治性組織) includes—

(a) a government of a foreign country or a political subdivision of the government;

(b) the authority of an external place or a political subdivision of the authority;

(c) an agent of the government or authority or an agent of the political subdivision of the government or authority; and

(d) a political party in an external place or an agent of the political party;

prohibited organization (受禁組織) means an organization in relation to which an order made under section 60(1) or (2) is in force.

59. This Division does not affect operation of Societies Ordinance

This Division does not affect the operation of the Societies Ordinance (Cap. 151).

Subdivision 2—Prohibition of Operation of Organizations Engaging in Activities Endangering National Security in HKSAR

60. Prohibition of operation of organizations

(1) If the Secretary for Security reasonably believes that it is necessary for safeguarding national security to prohibit the operation or continued operation of an organization specified in subsection (3) in the HKSAR, the Secretary for Security may, by order published in the Gazette, prohibit the operation or continued operation of the organization in the HKSAR.

(2) If an organization specified in subsection (3)(a) (local organization) is a political body and has a connection with a political organization of an external place, the Secretary for Security may, by order published in the Gazette, prohibit the operation or continued operation of the local organization in the HKSAR.

(3) The organization specified for subsections (1) and (2) is—

(a) an organization that is organized and established in the HKSAR or has its headquarters or chief place of business in the HKSAR, but does not include—

(i) a company registered under the Companies Ordinance (Cap. 622) (CO);

(ii) a company registered under the former Companies Ordinance (as defined by section 2(1) of the CO); or

(iii) a non-Hong Kong company as defined by section 2(1) of the CO (non-Hong Kong company); or

(b) an organization that is organized and established outside the HKSAR and has its headquarters or chief place of business outside the HKSAR (but excluding a non-Hong Kong company), to which one or more of the following circumstances apply—

(i) the organization conducts any activity in the HKSAR;

(ii) any person in the HKSAR acts as an office-bearer or member of the organization or professes or claims to be an office-bearer or member of the organization;

(iii) any person in the HKSAR manages or assists in the management of the organization;

(iv) any person in the HKSAR conducts any activity in the HKSAR on behalf of, or in cooperation with, or under the control, supervision or direction of, the organization;

(v) the organization incites, induces or invites any person in the HKSAR to become a member of, or manage or assist in the management of, the organization;

(vi) any person in the HKSAR pays money or gives aid of other kinds to or for the purposes of the organization;

(vii) the organization solicits or accepts financial contributions, loans, or financial sponsorships of any kind, or aid of other kinds, directly or indirectly from any person in the HKSAR;

(viii) the organization provides financial contributions, loans, or financial sponsorships of any kind, or aid of other kinds, directly or indirectly to any person in the HKSAR.

(4) The Secretary for Security must not make an order under subsection (1) or (2) without first affording the organization an opportunity to be heard or to make written representations as the organization considers appropriate as to why such an order should not be made.

(5) Subsection (4) does not apply if the Secretary for Security reasonably believes that affording the organization an opportunity to be heard or to make written representations would not be practicable in the circumstances of that case.

(6) An order made under subsection (1) or (2) must as soon as practicable be—

(a) served on the organization;

(b) published in a Chinese language newspaper and an English language newspaper in general circulation in the HKSAR designated by the Secretary for Security;

(c) published in the Gazette; and

(d) published on an internet website designated by the Secretary for Security.

(7) An order made under subsection (1) or (2)—

(a) takes effect on publication in the Gazette; or

(b) if specified to take effect on a subsequent date—takes effect on the specified date.

61. Matters following prohibition of operation of local organizations

(1) If the operation or continued operation in the HKSAR of any organization specified in section 60(3)(a) is prohibited under section 60 (local prohibited organization), the organization is dissolved on the taking effect of the order prohibiting the operation or continued operation of the organization under section 60(7).

(2) After the dissolution of a local prohibited organization, the liability (if any) of every office-bearer and member of the organization continues and may be enforced as if the organization had not been dissolved.

(3) If, immediately before the taking effect of an order prohibiting the operation or continued operation of a local prohibited organization under section 60(7), the organization is registered (however described, and carried out in whatever manner) under a specified Ordinance, subsections (4) and (5) apply to the organization.

(4) If the organization is dissolved under subsection (1), the registration mentioned in subsection (3) is cancelled, and the specified authority must—

(a) if a register (however described) is required to be kept in relation to the registration under the specified Ordinance—update the register in view of the cancellation of the registration; and

(b) publish a notice of the cancellation of the registration in the Gazette.

(5) Where the organization is dissolved under subsection (1)—

(a) if there is any provision in the specified Ordinance that applies after the dissolution of the organization under the specified Ordinance—the provision applies as if the organization were dissolved under the specified Ordinance; and

(b) if there is any provision that applies to the winding up of the organization, or any other provision that has the same effect, in the specified Ordinance—the provision applies to the organization.

(6) Subsection (7) applies to a local prohibited organization if—

(a) the organization is not an organization mentioned in subsection (3); or

(b) the organization is an organization mentioned in subsection (3), but there is neither a provision that applies to the winding up of the organization nor any other provision that has the same effect in the specified Ordinance.

(7) Where a local prohibited organization is dissolved under subsection (1), sections 360E, 360F, 360G, 360H, 360I, 360J, 360K, 360L and 360M of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) apply, with necessary modifications, to the organization as if the organization were a company that had been struck off the Companies Register, and had been dissolved, under section 360C of that Ordinance.

(8) In this section—

specified authority (指明當局), in relation to a registration mentioned in subsection (3), means—

(a) if a person is required to keep a register (however described) in relation to the registration under the specified Ordinance—the person; or

(b) in any other case—the Secretary for Security;

specified Ordinance (指明條例) means an Ordinance other than the Companies Ordinance (Cap. 622) and the former Companies Ordinance as defined by section 2(1) of the Companies Ordinance (Cap. 622).

Subdivision 3—Offences in connection with Prohibited Organizations

62. Prohibition of participation in activities of prohibited organizations

(1) A person who, after the operation or continued operation of an organization in the HKSAR is prohibited under section 60—

(a) is or acts as an office-bearer of the organization, or professes or claims to be an officer-bearer of the organization; or

(b) manages or assists in the management of the organization,

commits an offence and is liable on conviction on indictment to a fine of $1,000,000 and imprisonment for 14 years.

(2) A person who, after the operation or continued operation of an organization in the HKSAR is prohibited under section 60—

(a) is or acts as a member of the organization, or professes or claims to be a member of the organization;

(b) conducts any activity on behalf of, or in cooperation with, or under the control, supervision or direction of, the organization;

(c) participates in a meeting of the organization; or

(d) pays money or gives aid of other kinds to or for the purposes of the organization,

commits an offence and is liable on conviction on indictment to a fine of $250,000 and imprisonment for 10 years.

(3) The following act does not constitute an offence under subsection (1) or (2)—

(a) doing an act with the prior written permission of the Secretary for Security;

(b) participating in any proceedings, whether in one’s own capacity or as a representative of an organization that is a party to the proceedings;

(c) seeking, providing or accepting any legal services, or making or receiving any payment for the services; or

(d) doing any act that is incidental to the act referred to in paragraph (b) or (c).

(4) It is a defence for a person charged with an offence under subsection (1) or (2) to establish that, at the time of the alleged offence, the person did not know and had no reasonable grounds to believe that the operation or continued operation of the organization in the HKSAR was prohibited under section 60.

(5) Without affecting subsection (4)—

(a) it is a defence for a person charged with an offence under subsection (1), for being or acting as an office-bearer of a prohibited organization, to establish that the person has taken all reasonable steps and exercised due diligence to terminate the status as such an office-bearer; or

(b) it is a defence for a person who is charged with an offence under subsection (2), for being or acting as a member of a prohibited organization, to establish that the person has taken all reasonable steps and exercised due diligence to terminate the membership.

(6) A person is taken to have established a matter that needs to be established for a defence under subsection (4) or (5) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

63. Allowing meetings of prohibited organizations to be held on premises

A person who knowingly allows a meeting of a prohibited organization, or of members of a prohibited organization, to be held in or on any place or premises belonging to or occupied by the person, or over which the person has control, commits an offence and is liable on conviction on indictment to a fine of $250,000 and to imprisonment for 7 years.

64. Inciting etc. others to become members of prohibited organizations

A person who incites, induces or invites any other person to become a member of or assist in the management of a prohibited organization, or uses any violence, threat or intimidation towards any other person in order to induce that other person to become a member of or to assist in the management of a prohibited organization, commits an offence and is liable on conviction on indictment to a fine of $250,000 and to imprisonment for 7 years.

65. Procuring subscription or aid for prohibited organizations

A person who procures or attempts to procure from any other person any subscription or aid for the purposes of a prohibited organization commits an offence and is liable on conviction on indictment to a fine of $250,000 and to imprisonment for 7 years.

66. Shadow organizations of prohibited organizations

(1) In section 62(1)(a) and (b) and (2)(a), (b), (c) and (d), a reference to the organization includes a shadow organization of the organization.

(2) In sections 63, 64 and 65, a reference to a prohibited organization includes a shadow organization of a prohibited organization.

(3) For the purposes of this section, if an organization (Organization A) holds itself out to be another organization (Organization B), Organization A is a shadow organization of Organization B.

Subdivision 4—Miscellaneous Provisions

67. Authorized officers

The Secretary for Security may appoint a public servant in writing to be an authorized officer for the purposes of this Division.

68. Information to be provided by organizations

(1) An authorized officer may, by written notice, require any organization to provide in writing information that is reasonably necessary for the Secretary for Security to perform a function of the Secretary for Security under section 60.

(2) The notice under subsection (1) must be served on—

(a) the organization; or

(b) any office-bearer of the organization or any person who manages or assists in the management of the organization in the HKSAR.

(3) The information required to be provided under subsection (1) may include the income, the source of income and the expenditure of the organization.

(4) The notice under subsection (1) must specify the time within which (being not less than 7 days) the information must be provided.

(5) The authorized officer may, on application made to the officer and on good reason being shown, grant an extension of time at the officer’s discretion.

69. Persons responsible for providing information

(1) The obligations imposed on any organization under section 68 are binding on every office-bearer of the organization, and on every person managing or assisting in the management of the organization in the HKSAR, who has been served with the notice under that section.

(2) If an organization fails to comply with the whole or part of a notice served under section 68, each of the persons mentioned in subsection (1) is liable on summary conviction to a fine at level 4 unless the person establishes to the satisfaction of the court that the person has exercised due diligence and has failed to comply with the notice for reasons beyond the person’s control.

(3) If any information provided to the Secretary for Security in compliance with a notice served under section 68 is false, incorrect, or incomplete in a material particular, the person who has provided the information is liable on summary conviction to a fine at level 4 unless the person establishes to the satisfaction of the court that the person had good reason to believe that the information was true, correct and complete.

70. Power to inspect non-domestic premises

For the purpose of enabling the Secretary for Security to perform a function of the Secretary for Security under section 60, if a police officer of the rank of Superintendent or above reasonably believes that any non-domestic premises are kept or used by an organization or any of its members as a place for conducting any meeting or activity or a place of business, the police officer (or a police officer authorized by that officer) may, at the time during which the meeting or activity is conducted, at the time during which the business is carried on, or at any other reasonable time, enter and inspect the non-domestic premises.

71. Power to search places in specific circumstances

(1) If a magistrate is satisfied by information on oath by an authorized officer that there are reasonable grounds to suspect that any specified evidence is in a place, the magistrate may issue a warrant.

(2) The warrant may authorize an authorized officer and any other person specified in the warrant to take all or any of the following actions—

(a) to enter and search the place;

(b) to seize, remove or impound anything that appears to that officer or that other person to be specified evidence;

(c) to remove by force a person or thing obstructing that officer or that other person from exercising a power conferred on that officer or that other person by this section;

(d) to detain a person found in the place until the place has been searched.

(3) If—

(a) a police officer of the rank of Superintendent or above has reasonable grounds to suspect that any specified evidence is in a place; and

(b) the delay necessary to obtain a warrant is likely to result in the loss or destruction of evidence or for any other reason it would not be reasonably practicable to obtain such a warrant,

the police officer (or a police officer authorized by that officer) may exercise any of the powers referred to in subsection (2) in respect of the place without a warrant issued under subsection (1).

(4) In this section—

place (地方) means any place, and includes—

(a) any vehicle, vessel, aircraft, hovercraft or other conveyance;

(b) any tent or structure (whether or not movable or offshore); and

(c) any electronic equipment;

specified evidence (指明證據) means anything that is or contains, or that is likely to be or contain, evidence necessary for the Secretary for Security to perform a function of the Secretary for Security under section 60.

72. Forfeiture

Any books, accounts, writings, banners, insignia or other movable property belonging to any prohibited organization must, on order of a magistrate, be forfeited and given to the Secretary for Security for disposal in the manner that the Secretary for Security considers appropriate.

73. Service of notices etc.

A notice or order that must be served on a person or organization under this Division is, in the absence of evidence to the contrary, deemed to be so served if—

(a) for an individual, the notice or order is—

(i) delivered to the individual;

(ii) left at the individual’s last known address for service, or at the individual’s last known place of residence or business;

(iii) sent by post to the individual at the individual’s last known address for service, or at the individual’s last known postal address, whether or not the address is in the HKSAR;

(iv) sent by electronic mail transmission, fax transmission or other similar method to the individual at the individual’s last known address for service, or at the individual’s last known postal address, or at the individual’s last known place of residence or business, whether or not the address or place is in the HKSAR; or

(v) published through the Internet or a similar electronic network for the purpose of bringing the matter that the notice or order concerns to the attention of the individual;

(b) for an organization, the notice or order is—

(i) given to or served on an office-bearer of the organization, or a person managing or assisting in the management of the organization;

(ii) left at the organization’s last known address for service, or at its last known address;

(iii) sent by post to the organization at its last known address for service, or at its last known postal address, whether or not the address is in the HKSAR;

(iv) sent by electronic mail transmission, fax transmission or other similar method to the organization at its last known address for service, or at its last known postal address, or at its last known address, whether or not the address is in the HKSAR; or

(v) published through the Internet or a similar electronic network for the purpose of bringing the matter that the notice or order concerns to the attention of an office-bearer of the organization, or a person managing or assisting in the management of the organization.