Article 23 and Theft of State Secrets

1
Article 23 and Theft of State Secrets

• Prof Johannes Chan
• Dean, Faculty of Law,
• The University of Hong Kong

2
The Context

• Open and transparent government
• No legal right of access to information
• The law is to restrict access and disclosure of
  official information
• Not so much of how many prosecutions have been
  taken out
• What chilling effect the law has, especially when
  the law is unclear, vague or complex
• Ambiguity enhances self-cenorship

3
Introduction The Existing Law

• Official Secrets Act 1911
• Official Secrets Ordinance 1997 which is modeled
  after the Official Secrets Act 1989
• Spying and related offences (ss 3-6)
• Unlawful disclosure of security or intelligence
  information by members of the security and
  intelligence services (s 13)
• Unlawful and damaging disclosure of prohibited
  information by a public servant or a government
  contractor (ss 14-17)

4
The Proposals

• Expand the categories of protected information to
  cover relations between the Central Authorities
  of the PRC and the HKSAR
• Create a new offence of unauthorized and damaging
  disclosure of protected information obtained
  directly or indirectly by unauthorised access

5
Elements of the new offence

• Unauthorized access to protected information
• Unauthorized access could be direct or indirect
• Unauthorized disclosure of protected information
• Damaging disclosure of protected information
• Section 18 defence

6
What is protected information?

• Security and intelligent information
• Defence information
• Information relating to international relations
• Information relating to relations between the
  Central Authorities of the PRC and the HKSAR
• Information relating to commission of offences
  and criminal investigations

7
Source or nature?

• What information is covered? Defined by source or
  substance?
• Information relating to relations between the
  Central Authorities and the HKSAR a broad or
  narrow test?
• Which organ falls within the meaning of central
  authorities? (NPC, NPCSC, State Council, all
  central government bureaus and ministries,
  President and Ministers, procutorate, National
  Political Consultative Committee, local
  delegates, HK Macao Office, China Liaison Office,
  Communist party?)

8
Damaging Disclosure

• No explanation of damaging disclosure in the
  context of information relating to the relations
  between the central authorities of the PRC and
  the HKSAR
• On international relation, disclosure is
  damaging if it endangers the interests of the
  state elsewhere
• Endanger the interests of the central authorities
  in the mainland and overseas?

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Damaging Harm Test I

• Information belonging to a category the
  disclosure of which would be likely to cause harm
  trivial information which cannot by itself
  cause harm will be covered
• Harm is likely to flow from disclosure of a
  specific document

10
Damaging Harm Test II

• In central/HKSAR relations, disclosure appears to
  be damaging if it causes damage to the area of
  government operation covered by the category.
• The only safe approach would be non-disclosure of
  almost all relevant information.

11
Damaging Harm Test III

• Lord Advocate v Scotsman Publications Ltd 1990
  1 AC 812 (necessary to show a strong likelihood
  that harm will arise and the nature of the harm
  must be specified)
• No further harm could generally be done if there
  is prior publication further undermining
  confidence in the government by further
  publication is insufficient to satisfy the harm
  test

12
Who is covered under existing law?

• Members of security and intelligence services,
  public servants, government agents and
  contractors
• They obtain the information by virtue of their
  position and make an unauthorized and damaging
  disclosure
• The narrow range of persons and means of access
  to protected information mitigates the wide scope
  of the protected information

13
Who is covered under the Proposals?

• Unauthorized access either directly or
  indirectly information no longer confines to
  those coming into the hands of public servants
  etc by reason of their position
• The provision will have a particular impact on
  the press and researchers

14
Unauthorized Access

• What is unauthorized access? Note that there is
  no legal right of access to any official
  information
• Right not to disclosure the source of information
  presumption of unauthorized access if access is
  not explained?
• What if there is prior publication?

15
Defence I

• Defence if one does not know or has no reasonable
  cause to believe that the information disclosed
  is protected information and that the disclosure
  would be damaging
• How many defences? Whether knowledge refers to
  both nature and effect or any one of them?
• Transfer of mens rea
• Objective test reasonable cause to believe
• No defence if one genuinely believes that the
  information is not protected or disclosure is not
  damaging

16
Defence II

• No public interest defence
• No prior publication defence

17
Proposals I

• Protected information should be defined by
  content and not by source
• Damaging disclosure should require proof of a
  strong likelihood of specified harm or clear and
  present danger of harm
• Once information has been made generally
  available, by whatever means, whether lawful or
  not, no further justification to prohibit
  disclosure from the public

18
Proposals II

• Introduce a defence of public interest no
  offence if the public interest in knowing the
  information outweighs the harm from disclosure
• Clearly define unauthorized access and confine it
  to the hacker situation
• Protection of national security should not be
  used as a reason to compel a journalist to reveal
  a confidential source

19
Proposals III

• Subjective mens rea be required so that it would
  be a defence if one honestly believes the
  information is not protected or its disclosure is
  in the public interest and the information is
  lawfully acquired.
• All offences should be prosecuted within 6 months
• Jury trial be required
• Difficult to have meaningful consultation without
  details White Bill should be published