With the public consultation on the legislation of Article 23 of the Basic Law now underway, the most talked-about topic causing concern seems to be that which relates to State secrets.

All of a sudden, everyone seems to fear they may be caught disclosing a State secret. Some go as far as to claim that freedom of the press and speech will disappear with the introduction of a State-secret offense. 

So what are State secrets, and should you and I be concerned? 

I’m a lawyer, but let me take off my lawyer’s hat and try to explore this topic as a regular person with a bit of common sense. 

First, let us start by considering what a State secret is; or rather, what is a secret? A secret is something not many people know. So if you discover it on the internet or hear it on the grapevine, then it is no longer a secret. It is already in the public domain. You cannot commit an offense by repeating what is already known to the world, right? There is another point. A secret is a fact. Not an opinion, nor a supposition or a proposal. If someone were to tell you a secret, someone is trying to convey to you a fact, not a rumor, which may or may not be true.

Next, we are talking about State secrets. We are not talking about any secrets. So the data my think tank has may be a secret but they cannot be State secrets. 

A secret from the private sector that may qualify as a State secret must be something that is very important and obviously likely to affect the nation in a big and negative way. 

For example, a trade secret that will benefit the nation is not the kind of State secret we are talking about. A trade secret that is harmful to the nation is more likely than not something already known to the nation, but which the nation does not want disclosed for good reason; for example, so as not to let its adversaries know so that they can exploit it against the interests of the nation. 

If so, you should not disclose it unless you are sure your disclosure is authorized. The best way to be sure is to seek confirmation from the relevant government department. If the nation does not know the secret, then by disclosing it you are actually helping the nation by drawing its attention to it and you have no criminal intent to harm the nation, and you will not be guilty. Your honest belief that your conduct is beneficial to the nation is an indication that you have no criminal intent.

Generally, a State secret by definition is the nation’s secret, whether in official files or in the private sector; in other words, official data or facts. Of course, if the information looks nothing like official information and you honestly do not believe it is but it is, you have no criminal intent and you will not be guilty.

The next important thing is the unlawful obtaining and disclosure of information that constitutes a State secret. 

So if someone were to give you some information that on the face of it is a State secret because it looks like something that is official in the sense it does not look like something that you and I or a think tank or whatever private organization may have, you may ask: “Where did you get this?” 

The giver of the information may provide one of these answers: “I got it officially,” “I stole it,” or “I came by it without proper authority.” If he says he got it officially and you honestly believe him, you have no criminal intent and you are not guilty of the offense, unless you suspect he is not telling the truth but you turn a blind eye to that. If he says he stole it or obtained it without proper authority, then you should say, “I will have nothing to do with it,” and walk away and you will be safe.

If you are the one obtaining the information that on the face of it looks like official data or information that belongs to some government official or department, then you must seek out the likely department or official to confirm it is all right for you to disseminate the information. If he tells you it is all right to disclose it and you honestly believe him, you have no criminal intent and will not be guilty. If he says you have no authority, then you must leave that information alone.

Remember, the offense will only apply to you if: 1) it is State secret; 2) you knowingly obtain it without authority and still disclose it; 3) the disclosure of the information is likely to lead to national security or national interests being harmed. I would not encourage you to test the last point. Whether some information is likely to lead to national security or interests being harmed is better left to a judge to decide. By then, it may be too late. So stay away from it.