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C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 000192 
 
SIPDIS 
 
DEPT FOR EAP/CM; ALSO FOR DRL 
 
E.O. 12958: DECL: 01/22/2019 
TAGS: PGOV PHUM MC
SUBJECT: MACAU ARTICLE 23 LEGISLATION: THE GOOD NEWS IS, 
IT'S IN THE HANDS OF THE COURTS 
 
REF: (A) 08 HONG KONG 2258 (B) 08 HONG KONG 2109 
 
Classified By: Consul General Joe Donovan for reasons 1.4 (b) and (d) 
 
¶1. (C) Summary and comment:  Macau Law Reform Officer 
Director Chu Lam-lam, who drafted the text of Macau's Article 
23 national security bill, walked us through existing Macau 
law to demonstrate the bill's secrecy provisions would not 
pose a risk to journalists.  She stressed that courts will 
have discretion to weigh the public interest in disclosure of 
classified information against the harm to national security. 
 Chu also maintained that "preparatory acts" can only be 
prosecuted as crimes if both the persons involved intended to 
eventually commit a crime and their preparations would 
actually allow them to do so.  If Macau judges share Chu's 
view of how existing law should apply to Article 23, the 
eventual law may not be as great a risk to human rights as 
some observers had feared.  The question is whether, in a 
system in which the language of law is deliberately general 
and precedent is not binding, the courts will decide in the 
fashion Chu describes, and how consistently they will rule 
(upcoming septel).  End summary and comment. 
 
----------------- 
Letter of the Law 
----------------- 
 
¶2. (C) On January 9, we met with Director of Macau's Law 
Reform Office Ms. Chu Lam-lam, who wrote the draft of Macau's 
Article 23 national security bill which went to the 
Legislative Assembly.  Chu began by explaining that civil law 
texts lack the exhaustive definition and detail of common law 
legislation.  For purposes of Macau law, she explained, any 
criminal law on a specific topic (in addition to Article 23 
legislation, she mentioned Macau's anti-terrorism and 
anti-money laundering laws), has as points of departure the 
Macau Criminal Code (Code Penal) and the Macau Criminal 
Procedure Code.  Thus, although the bill might not 
specifically refer to the Code Penal, if the terminology used 
for a point of law is the same, then the Code Penal (and the 
existing jurisprudence interpreting it) will guide judges in 
Article 23 cases.  In this sense, laws like Article 23, the 
anti-terrorism law, and the anti-money laundering law might 
best be understood as explanations of how the Code Penal is 
applied with respect to those particular crimes. 
 
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Secrecy 
------- 
 
¶3. (C) Regarding crimes of divulging state secrets as they 
might affect journalists, Chu said that, in addition to the 
actual fact of a disclosure, two standards must be met. 
First, the act must be intentional, and second, the act must 
harm state security. Chu argued that, unless a journalist 
knowingly and deliberately sought access to material s/he 
knew to be classified, s/he could not be charged with "prying 
into" (ci tan) state secrets.  She reiterated comments she 
made to the press that, since only the government held state 
secrets, only a government official could be charged with 
disclosure of a secret.  Chu also stated that a journalist 
could not be held liable were s/he given information which 
was not specifically marked or described as classified.  Chu 
also told us it is not legal to classify material to cover up 
a crime, although she did not cite which Macau law makes that 
point. 
 
¶4. (C) Ref A noted that the Article 23 bill language on how 
courts would seek advice from the government as to whether 
information was classified had changed from "should obtain 
certification" to "may obtain certification".  We previously 
interpreted this change as giving the court discretion to 
consider whether some unmarked material might or might not 
constitute a secret.  Chu explained to us, however, that 
should the prosecution argue that some material in the case 
was classified, the court would be obligated to seek a ruling 
from the government.  As reported previously, the revised 
Article 23 bill text requires that the information have been 
classified prior to its disclosure. 
 
¶5. (C) Chu told us very clearly that, under the terms of the 
current Article 23 bill, the Macau judge will have the sole 
discretion to decide whether the disclosure harms state 
security. 
 
¶6. (C) Comment: Article 5.1.c of the Macau Law on 
Publications (1990) bars journalists from approaching their 
sources for classified information.  This appears to track 
with Chu's explanation of the "intentionality" standard to be 
imposed under Article 23 legislation.  The question becomes 
 
HONG KONG 00000192  002 OF 002 
 
 
then, if the journalist did not specifically seek classified 
information but was given material marked classified unasked, 
does s/he have the right to publish it?  The Publications Law 
does not directly address this.  The current Article 23 bill 
seems to suggest that to publish classified information 
intentionally could be a crime. 
 
----------------------- 
Public Interest Defense 
----------------------- 
 
¶7. (C) As reported ref B, Macau's existing doctrine of public 
interest defense is in Articles 30, 31, 33 and 35 of the Code 
Penal.  Article 30 defines a concept of "legitimate or 
justified defense", which Chu and Macau University Law 
Professor Luo Weijian (ref B) argued provides a public 
interest defense for journalists disclosing classified 
information.  Article 31 justifies actions to fend off 
infringements of one's own or another's lawfully protected 
interests, providing the methods used are shown to be 
necessary to block the infringement.  Article 33 adds the 
right to avoid imminent danger, with the requirement that 
harm caused by the "defensive" action must be less than the 
harm which would be caused by inaction.  Article 35 grants an 
exception to persons not fulfilling their official duties or 
disobeying the orders of authorities in cases in which 
obedience would cause greater harm than disobedience.  It 
further allows officials the right to disobey their 
superior's orders should those orders involve committing a 
crime.  All of these points, Chu argues, would allow a judge 
the discretion to balance the public good achieved by 
disclosure of classified information against the harm caused 
to the state. 
 
¶8. (C) Comment: We have no basis to comment on how willing 
Macau judges are to consider "justified defense" for other 
crimes, and thus cannot predict whether it will be a key 
doctrine guiding Article 23 cases.  However, the language in 
Articles 31 and 33 both implies that the justifiable action 
is taken against a threat to oneself or others that is either 
imminent or in progress.  This may be a difficult standard to 
meet for an investigative journalist uncovering a political 
scandal which is neither in progress at that moment nor can 
be shown to directly threaten anyone. 
 
---------------- 
Preparatory Acts 
---------------- 
 
¶9. (C) Chu told us "preparatory acts" under Macau law are not 
the same as the common law concept of "conspiracy".  She also 
pointed out that, under Article 20 of the Code Penal, 
preparatory acts can only be a crime if specifically stated 
in the law.  Articles 297-299 of the Code Penal specifically 
criminalize only acts in preparation to use violence to 
disrupt or change the existing order in Macau, or otherwise 
cause destruction.  The language in the Article 23 bill is 
similar.  Chu said two standards would need to be met to 
declare preparatory acts to be criminal.  First, the 
perpetrator would have to have the intention of committing 
the act for which it were alleged s/he was preparing. 
Second, the preparatory actions themselves would need to 
credibly allow the perpetrator to commit the criminal act. 
 
¶10. (C) Comment:  Chu's point to us was that talking about 
something doesn't make it possible to achieve.  If this is 
the approach that the Macau judiciary will take to Article 23 
cases, much of the concern that activists calling for 
political change in either the Macau or Mainland governments 
could be charged with preparing for subversion would seem 
unfounded.  Since the definitions for the remaining crimes in 
the Article 23 bill for which preparatory acts are also 
crimes -- treason, secession, and subversion -- specify acts 
of violence, presumably meeting Chu's credibility standard 
would require actions in physical preparation to commit 
violent acts, such as seeking to purchase or gathering 
weapons. 
DONOVAN