Under Article 23 of the Basic Law, the Hong Kong SAR must enact laws on its own to prohibit certain harmful activities, including the theft of state secrets. The Consultation Paper on proposals to implement Article 23 suggests how this should be done.

Some concern has been expressed as to the impact the proposed law would have on press freedom. I would like to explain why I think that concern is unnecessary.

First, press freedom will continue to be fully guaranteed in accordance with the Basic Law and the International Covenant on Civil and Political Rights. Secondly, it is proposed that the current Hong Kong Official Secrets Ordinance should continue to govern the law in this area, and that very few changes should be made to it.

That Ordinance is based on UK legislation that was substantially liberalised in 1989. Before then, the law in both England and Hong Kong was indeed draconian. It penalised the disclosure of any information obtained by an official in the course of his or her duties, however trivial the information and irrespective of the harm likely to arise from its disclosure. It also generally made it an offence for anyone simply to receive information they knew or had reasonable cause to believe had been disclosed unlawfully.

That old law was replaced by much more liberal legislation in both the UK and Hong Kong. Instead of protecting all official information, our current Official Secrets Ordinance provides that only four categories of information are protected from unauthorized disclosure. It is no longer an offence merely to receive unauthorized communications. And simply refusing to disclose the source of information does not, and will not, constitute an offence under that Ordinance.

The four categories of information, and the kind of harm that could be caused by their unauthorized disclosure, are as follows -

• security and intelligence information - leaks concerning intelligence gathered on terrorist attacks could tip-off those responsible
• defence - disclosure of defence plans to deal with a possible outbreak of war could assist the enemy
• international relations - a disclosure concerning relations between China and another state could disrupt that relationship and result in measures being taken against Chinese interests or nationals
• the commission of offences and criminal investigations - a leakage of information concerning a suspect could help a criminal avoid arrest.

It is therefore in the public interest that the law should restrict unauthorized disclosure of such protected information, even though not all of it relates to state secrets. However, the prohibition should not be all-embracing. Some information within the four categories could be disclosed without any harmful consequences. The publication of information leaked by the police about an arrest they have made might, for example, have no adverse consequences on police work.

As a result, members of the public or the media who disclose information commit an offence only if their disclosure was without lawful authority, and

• the information came into their possession through an unlawful disclosure or entrustment,
• they knew, or had reasonable grounds to believe, that the information was protected, and had come into their possession in that way, and
• the disclosure was damaging and they knew, or had reasonable cause to believe, that it would be damaging.

The meaning of "damaging" is set out clearly in the legislation in respect of each category. For example, the unauthorized disclosure of information relating to criminal investigations is an offence if it results in the commission of an offence, helps a prisoner to escape, or impedes the prevention or detection of offences, or is likely to have such an effect.

Who decides whether information falls within one of the categories, and whether the disclosure is damaging? When the old English legislation was being reviewed, it was proposed that a government Minister could issue a conclusive certificate to the effect that the disclosure would cause serious injury to the interests of the nation. That proposal was criticised and dropped. Under both English and Hong Kong law it is now the courts that decide whether the elements of the offence have been proved.

This approach of prohibiting the damaging disclosure of limited categories of official secrets will not change under the government's proposals. The vast majority of official documents here and in the Mainland, including those relating to economic matters, will not fall within the offences relating to unlawful disclosure. The leakage and eventual publication of information concerning the gold reserves of the Bank of China would not, for example, be an offence in Hong Kong.

No new police powers are proposed in respect of official secrets. Current powers of search and seizure are subject to special safeguards if "journalistic materials" are involved. The Organized and Serious Crimes Ordinance, under which a court may require a person to provide information for the purposes of a criminal investigation, will not be extended to the investigation of official secrets offences. And if a person is suspected of committing any offence, he will continue to have the right to remain silent. His silence cannot be treated as evidence of guilt.

The only significant amendment of the current law that is proposed in this area is to create an offence of making an unauthorized and damaging disclosure of protected information obtained by unauthorized access. Such a disclosure could be just as damaging to the public interest as a disclosure resulting from a leak by a civil servant. For example, the disclosure of information concerning a police investigation, obtained by hacking into a police computer, could tip-off the suspect in the same way as a disclosure based on a police leak.

The safeguards that exist in respect of the current offence of unauthorized disclosure will apply to the new offence. Members of the media and the public would not therefore commit an offence if they did not know, and had no reasonable ground to believe

• that the information was within one of the protected categories, or
• that the information had been obtained by unauthorized access, or
• that the disclosure would be damaging.

Another change that is proposed is to adapt the text of the current legislation to reflect the change in sovereignty. Instead of protecting information concerning relations between the United Kingdom and Hong Kong, it will protect information concerning relations between the Central Authorities and the HKSAR. That protection has in fact been in place since Reunification as a result of interpretation provisions in the Reunification Ordinance. In addition, information concerning the relations between Hong Kong and China was protected before Reunification, since this involved international relations.

Some concern has been expressed about this proposed adaptation. However, it should be appreciated that -

• there will be no change in the substance of the law, which does not appear to have caused problems for press freedom
• a disclosure of such information would only be an offence if it is "damaging" in the way specified in the legislation.

For example, the premature publication by the media of an official report concerning relations between Hong Kong and Beijing that causes embarrassment but no damage would not be an offence. The restriction is there to protect the public interest from being harmed, not to simply to prohibit disclosures that are undesirable, a betrayal of trust, or an embarrassment to the government.

Some commentators have argued for a general defence that disclosure is in the public interest. That defence might apply, for example, where a whistle-blower makes an unauthorized disclosure in order to reveal an abuse of power.

The British Government considered such a defence in 1988, but rejected it for two reasons. First, a central objective of its reforms was to achieve maximum clarity in the law and in its application. A general public interest defence would make it impossible to achieve such clarity. Secondly, the intention was to apply criminal sanctions only where this was clearly required in the public interest. No person should be allowed to disclose information which he knows may, for example, lead to loss of life simply because he has a general reason of a public character for doing so.

More recently, it was argued in an English case that, under the Human Rights Act, an unauthorized disclosure could be justified if it was in the public interest. The House of Lords rejected this argument. The court held that there were sufficient safeguards in the legislation, and through the availability of judicial review, to ensure that the power to withhold authorization was not abused and that proper disclosures were not stifled. It also decided that the restriction on freedom of expression created by relevant offences was not greater than was required to achieve the legitimate object of protecting national security.

The reasoning of the House of Lords applies equally to Hong Kong's law on official secrets.

Some commentators have suggested that a person who has made an unauthorized disclosure should have a defence if the leaked information had previously been made available to the public. However, a disclosure in such circumstances could still be harmful. For example, an initial newspaper story concerning protected information might carry little weight and cause no damage. However, an unauthorized confirmation of that story by a senior official could be very damaging.

Although our law does not provide a defence of prior publication, the effect of such publication may be that a subsequent disclosure is not damaging and does not therefore amount to an offence.

I hope this clarification of the existing law relating to official secrets, and of the limited changes that are proposed, will be reassuring. There will be no roll-back of press freedom. Even though the law will protect state secrets, Mainland concepts of secrecy will not be introduced into our law. This is a striking example of the manner in which "one country, two systems" is being successfully implemented.

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