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Hong Kong Intelligence Report #122 公司條例下的公司免於基本法23條?被商界去勢的《維護國家安全條例》

Updated: Mar 20

Open-source intelligence (OSINT)


Hong Kong Intelligence Report #122 公司條例下的公司免於基本法23條?被商界去勢的《維護國家安全條例草案》
FILE PHOTO: Lady Justice in front of barbed wires and prison walls © Envato

🔻 IMPORTANT 【重要】被商界去勢的《維護國家安全條例》


《維護國家安全條例草案》(Safeguarding National Security Ordinance)中,《公司條例》下的公司免於基本法23條乃本港國安系統的最大弱點。
 In the Safeguarding National Security Ordinance Bill, the exemption of companies from Article 23 of the Basic Law under the Companies Ordinance (CO) is the greatest weakness of the national security system.

🔻 NEWS / FACTs 【事實關係】

 

▪️ 保安局在2024年3月8日已公開的《維護國家安全條例草案》上,媒體不報導的重要的一點是,繼逃犯條例修訂案之後,香港總商會及其立法會代表林健鋒(該人也是日本代理人;香港政客是買辦階級,它們同時代理中美各勢力,不分表面的所謂建制派和反對派之稱)還是對23條立法草案也成功進行了去勢。自從2018年貿易戰至今,中美和香港屬於一連串的重大社會事件之中,2019年反修例風波,2020年-2023年新冠肺炎疫情及其間發生的大型顛覆活動,即反動態清零國策的圖謀及其白紙革命,2024年撤辣(全面撤除反地產投機稅)。該商會透過遊說去勢的地方是,禁止從事危害國家安全活動的組織在特區運作-第58條禁止組織運作。與該草案諮詢文件不同,所謂政治性團體的狹窄定義並未得到改善,還是只指自稱政黨的社團和與選舉有關的團體而已。境內勢力的定義本來不具名地體現在禁止組織運作上的‘任何’組織來定義的,但是目前在立法會(出席率極低,足認多數的所謂建制派議員都害怕制裁和考慮金主們的意向和風險評估,不敢出席)審議的版本從所謂‘任何’組織中排除了公司條例下的公司一般,舊有公司條例註冊的公司以及非香港公司。誠然,這是資本(商界)的政治要求。在香港的條例群中,正如所料,所謂‘任何’一詞往往是被限制的(透過定義或判例),有例外的。這個正是審議版本上的重大弱點。譬如,早年透過港美中心建立示威者培訓系統的通識課程(壹傳媒集團並非此策劃者,策劃者之一馮國經是建制派大老)和在反修例風波期間錄音和洩露解放軍動向(國家機密資料)的VISION2047是《公司條例》下的公司身分,而非商會或社團。整個23條立法已經如此豁免了公司條例下的所謂公司了。這就會是其重大突破口,有了個大漏洞了。


 An important point not reported by the media in the Safeguarding National Security Ordinance Bill, which was already made public by the Security Bureau on March 8, 2024, is that, following the amendment to the Fugitive Offenders Ordinance, the Hong Kong General Chamber of Commerce and its representative on the Legislative Council, Jeffrey LAM (who is also an agent of Japan; the politicians in Hong Kong are the comprador class, who are acting on behalf of the Chinese and American forces at the same time, irrespective of the superficial so-called pro-establishment camp and the opposition camp) have also successfully gone to castrate on the article 23 of the Bill. It has also succeeded in de-emphasizing the situation. Since the trade war in 2018 to the present, China, the United States and Hong Kong are in the midst of a series of major social events from the anti-amendment storm in 2019, the new Corona Pneumonia pandemic in 2020-2023 and the large-scale subversive activities that took place in the meantime, i.e., the conspiracy of anti-dynamic-zero-COVID of the national policy and its A4 paper revolution, and the withdrawal of the anti-speculation tax of Hong Kong in 2024. The Chamber's lobbying efforts are aimed at 'prohibiting organizations' engaged in activities that endanger national security from operating in the SAR - Section 58 prohibits the operation of organizations. Unlike the consultation paper on the Bill, the narrow definition of political organizations has not been improved, and still refers only to societies claiming to be political parties and election-related organizations. The definition of influence from within the Mainland was originally anonymously embodied in the definition of 'any' organization for the purpose of prohibiting the operation of an organization. However, in the version currently being scrutinized by the Legislative Council (which has a very low attendance rate, and it is recognized that most so-called pro-establishment members dare not attend for fear of sanction and consideration of the intention and risk assessment of their financial backers), the so-called 'any' organization is excluded from the definition of 'any' organization, and is not included. The version being scrutinized excludes from the so-called 'any' organization, especially, companies under the Companies Ordinance in general, companies registered under the old Companies Ordinance and non-Hong Kong companies. Admittedly, this is a capitalist (business) political demand. In the group of Hong Kong ordinances, as might be expected, the term 'any' is often restricted (by definition or by case law), with exceptions. This is the major weakness of the scrutinized version. For example, the Liberal Studies course that set up the training system for protesters through the Hong Kong-America Center (Next Digital was not the mastermind, one of the masterminds, Victor Fung, is an establishment boss) and VISION2047 that recorded and leaked PLA movements (state secret information) during the anti-amendment storms are corporations under the Companies Ordinance, not chambers of commerce or societies. The entire Article 23 legislation has already exempted the so-called companies under the Companies Ordinance. This will be a major breakthrough and a big loophole.


▪️雖保安局局長不會有了直接單獨禁止所謂《公司條例》下的公司運作的職權,但行政長官會同行政會議依然可以從公司登記冊中,剔除公司(如支聯會的2021年案件)。其脈絡是,根據第32章 《公司(清盤及雜項條文)條例》360B.行政長官會同行政會議如信納一間公司正為規避《社團條例》的管制而組成即有權命令處長拒絕註冊。不過,同時也有360C. 行政長官會同行政會議有權命令將從事不良活動的公司剔除(行政長官會同行政會議如信納一間根據《公司條例》(第622章)或任何《舊有公司條例》組成及註冊的公司,假若是《社團條例》(第151章)所適用的社團,其註冊或註冊豁免本可根據該條例第5D條取消者,或是保安局局長本可根據該條例第8條禁止其運作或繼續運作者,則行政長官會同行政會議可命令公司註冊處處長將該公司自公司登記冊中剔除。  (行政長官會同行政會議如信納一間根據《公司條例》(第622章)或任何《舊有公司條例》組成及註冊的公司,假若是《社團條例》(第151章)所適用的社團,其註冊或註冊豁免本可根據該條例第5D條取消者,或是保安局局長本可根據該條例第8條禁止其運作或繼續運作者,則行政長官會同行政會議可命令公司註冊處處長將該公司自公司登記冊中剔除)。

 

本港統治階級不想把註銷公司一事在國安法制內處理,而願意在商界人員自己直接大舉參與的行政長官會同行政會議上處理,甚至在法院審判前可處理。就整體而言,本港確實不會在政治上沒有辦法註銷公司,但其政治門檻仍然高。

 

就公司或所謂‘任何’組織,全國法《港區國安法》第五節-其他處罰規定的第三十一條都明確涵蓋。因此,在顛覆國家政權,分裂國家的範疇中,本港資本無法去勢的港區國安法仍可望彌補23條立法的上述重大弱點。不過,叛國,煽動叛亂,竊取國家機密, 禁止外國的政治性組織或團體在香港特別行政區進行政治活動,禁止香港特別行政區的政治性組織或團體與外國的政治性組織或團體建立聯繫上,最後還是整個《公司條例》(第622章)變成大漏洞或大弱點了。這就是所謂商界在擺出表面的‘支持’,‘愛國愛港’姿態下已經得逞的本地國安立法上的突破口。


Although the Secretary for Security will not have the power to prohibit the operation of a company under the so-called CO, the Executive Council of Hong Kong (ExCo) can still strike a company off the register of companies (e.g. the HKASPDMC's 2021 case). The line is that under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), 360B. The Executive Council of Hong Kong (ExCo) has the power to order the Registrar to refuse to register a company if he is satisfied that the company is being formed for the purpose of circumventing the control of the Societies Ordinance. However, there is also 360C. The Executive Council of Hong Kong (ExCo) has the power to order the striking off of a company engaging in undesirable activities (the Executive Council of Hong Kong (ExCo) may order the Registrar to refuse the registration of a company if the Executive Council of Hong Kong (ExCo) is satisfied that the company is formed and registered under the Companies Ordinance (Cap. 622) or any former Companies Ordinance, and that the registration or exemption from registration could have been revoked under section 5D of the Ordinance if it was a society to which the Societies Ordinance (Cap. 151) applies or the Secretary for Security is satisfied that the company is not a society to which section 5D of the Ordinance applies or that the Registrar's exemption from registration could have been revoked under section 5D of the Ordinance). If it is a society to which the Societies Ordinance (Cap. 151) applies and the registration or exemption from registration of which could have been canceled under section 5D of that Ordinance, or the Secretary for Security could have prohibited its operation or continuance of operation under section 8 of that Ordinance, the Executive Council of Hong Kong (ExCo) may order the Registrar of Companies to strike the company off the register of companies.  (If the Executive Council of Hong Kong (ExCo) is satisfied that a company formed and registered under the Companies Ordinance (Cap. 622) or any former Companies Ordinance which, if it were a society to which the Societies Ordinance (Cap. 151) applies, would have been liable to be deregistered or exempted from registration under section 5D of that Ordinance, or the Secretary for Security would have been liable to prohibit its operation or continuance under section 8 of that Ordinance, then the Executive Council of Hong Kong (ExCo) may order the Registrar of Companies to strike the company off the register of companies. 


The ruling class in Hong Kong does not want to deal with the deregistration of companies in the context of the national security system, but rather in the context of the Executive Council of Hong Kong (ExCo), in which the business community itself is heavily involved, or even before a court trial. On the whole, it is true that Hong Kong will not be politically powerless to cancel a company, but its political threshold is still high.


In respect of a company or the so-called 'any' organization, is explicitly covered by Article 31 of Section 5 of the National Security Law of Hong Kong, a national law, which provides for other penalties. Therefore, in the area of subversion of state power and secession, the Hong Kong National Security Law, which is not accessible to the Hong Kong capital, can still be expected to make up for the above major weakness of the Article 23 legislation. However, in terms of treason, sedition, theft of state secrets, prohibition of foreign political organizations or bodies from conducting political activities in the Hong Kong Special Administrative Region, and prohibition of political organizations or bodies of the Hong Kong Special Administrative Region from establishing ties with foreign political organizations or bodies, the entire Companies Ordinance (Cap. 622) has eventually become a major loophole or weakness. This is the so-called breakthrough in the enactment of local national security legislation that the business sector has already succeeded in making under the superficial gesture of 'support' and 'love for the country and Hong Kong'.


▪️ 此外,較有趣的討論還是,《維護國家安全條例草案》中,所謂指明披露的話題。其第29條指明披露的涵義(c)在顧及有關個案的整體情況下,作出該項披露所照顧的公眾利益,明顯重於不作出該項披露所照顧的公眾利益。這個內涵本身並不含有形式邏輯矛盾,是因為公眾利益此一概念是被包含在國家安全在內的,甚至,國家是指主權,領土,和人民,而非單指特定政權。如此,國家的概念內涵含有人民,公眾,其安全理所當然地包括該管轄區內所有或最全面或最重大的公眾利益。這就是在國家安全概念內或公眾利益概念內的價值判斷,兩者之間並無分別。換言之,主要國家安全/公眾利益和次要國家安全/公眾利益,真正的國家安全/公眾利益和虛假的國家安全/公眾利益,重大國家安全/公眾利益和輕小的國家安全/公眾利益等等,變為在同一同質概念內的價值判斷。不過,還有到底由誰判定的問題存在。就歷史個案而言,這種情況正是所謂七宗罪全都出現的社會事件中。

 

最佳例子是,1953-1954年的瓜地馬拉政變,譬如:

 

當瓜地馬拉民選總統哈科沃·阿本斯(Jacobo Árbenz)被境外鄰近地區招募的僱用兵團和部分本地叛軍人士瓜地馬拉將軍卡斯蒂略·阿馬斯(Castillo Armas)裏應外合入侵進攻,甚至媒體普遍陷入反政府勢力的手裏並誇大反政府勢力的軍力以促進軍隊叛變和民心背離,這其實始終都是由根本不敵瓜地馬拉政府軍的中情局國際僱用兵團扮演角色的,即基於控制當地媒體之下具壓倒性地發動的心理戰。

 

當上當的軍官(Carlos Enrique Díaz de León)與美國和叛軍交涉,而只承諾讓瓜地馬拉民選總統退位而遭美方和反政府兵團拒絕時,他發現了對方的要求超過單純的政權更替和處決被視為共產黨領袖的人們,而是要整個國家,尤其是取消已國有化了的土地還給美企壟斷資本(United Fruit Company)獨佔(正像本港大型動亂一樣,其幕後黑手是本地運作的壟斷資本,它們向境外勢力請求介入和協助的模式是普遍。歸根結底,還是資本的利害說明其整個表現出來的運動,如反逃犯條例修訂案運動出自於懼怕因商業犯罪而被引渡到內地的本地商界,這就是為什麼香港總商會率先剔除了商業犯罪的引渡條款)。如果當時他(Carlos Diaz)向人民公開披露當時正在進行的內情消息(當然是屬機密)和呼籲全面抗戰,這就是所謂具有凌駕性公眾利益的披露。結局,與此相反,該軍官隨後在軍內進行有效抵抗前被中情局阻絕,何況披露。


具有凌駕性公眾利益的披露個案:

 

卡斯蒂略·阿馬斯(Castillo Armas)的部隊不可能打敗瓜地馬拉龐大得多的陣容,但空襲加上對敵人不可戰勝的信念(註解:被媒體戰誤導),說服了瓜地馬拉軍官迫使哈科沃·阿本斯(Jacobo Árbenz)辭職。

 

無論是國內還是國外的共產黨人都沒有來幫助他。阿本斯只要求軍官頭目、陸軍參謀長卡洛斯·迪亞茲上校(Carlos Enrique Díaz de León)保證不與卡斯蒂略·阿馬斯談判,迪亞茲和阿本斯一樣鄙視叛軍指揮官,於是欣然同意。迪亞斯沒有意識到的是,美國不會僅僅滿足於趕走阿本斯。卡斯蒂略·阿馬斯早已被培養成了即將誕生的新的政府首腦,這一點不容討價還價。

 

剛剛抵達瓜地馬拉幫助新政權起草新憲法的中情局官員恩諾·霍賓(Enno Hobbing)告訴迪亞斯,他接管政府是 "犯了一個大錯誤"。"上校,"霍賓說,"你不符合美國外交政策的要求。"

 

此時,駐瓜地馬拉美國大使佩里福伊(Peurifoy)面對迪亞斯,要求他直接與卡斯蒂略·阿馬斯交涉。與此同時,大使向該瓜地馬拉上校出示了一份長長的名單,上面列出了一些領導人的名字,要求迪亞斯在 24 小時內將他們全部槍決。

 

"但是為什麼呢?" 迪亞茲問道。
"因為他們都是共產主義者," 佩里福伊回答道。

 

雖然迪亞茲並不同情共產主義,但他還是拒絕了這兩項要求,並表示將繼續與入侵者鬥爭。駐瓜地馬拉美國大使佩里福伊憤然離開。

 

隨後,他給佛羅里達的中央情報局總部發了一封簡單的電報: "我們被背叛了。轟炸!" 幾小時內,一架中情局飛機從洪都拉斯起飛,轟炸了一個軍事基地,摧毀了政府廣播電台。卡斯蒂略·阿馬斯上校的反共主義得到了美國的信任,他很快成為瓜地馬拉的新領導人。

 

宣傳秀還沒有結束。在中央情報局的授意下,新政權的瓜地馬拉軍官帶領外國記者參觀了阿本斯的故居,讓他們親眼看到房間裡擺滿了蘇聯出版的教科書。《紐約時報》的記者保羅·肯尼迪(Paul Kennedy)被認為是強烈反對阿本斯的人,他的結論是 "這些書是被人栽贓的",因此懶得報道此事。《時代雜誌》沒有提到這些書,但卻莫名其妙地報道了暴徒洗劫了阿本斯的家,發現了 "成堆的共產主義宣傳品和四袋泥土,分別來自俄羅斯、中國、西伯利亞和蒙古。"《時代雜誌》的文章清楚地表明,它現在知道美國人在阿本斯的倒台中扮演了什麼角色(儘管肯定不是故事的全部),但對於用武力推翻民選政府是否妥當,該雜誌卻只字未提。

 

 In addition, a more interesting discussion is on the so-called specified disclosure in the Safeguarding National Security Ordinance Bill. Clause 29 of the Bill specifies that the meaning of disclosure (c) having regard to the totality of the circumstances of the case, the public interest served by the disclosure is clearly more important than the public interest served by the failure to make the disclosure. This connotation does not in itself contain a formal logical contradiction, because the concept of public interest is subsumed in the concept of national security, even though a nation refers to sovereignty, territory, and people, not just to a particular regime. As such, the concept of state includes the people, the public, and its security rightly includes all or the most comprehensive or significant public interests within the jurisdiction. This is a value judgment within the concept of national security or within the concept of public interest, and there is no difference between the two. In other words, primary national security/public interest and secondary national security/public interest, genuine national security/public interest and spurious national security/public interest, major national security/public interest and minor national security/public interest, and so on, become value judgments within the same homogeneous concept. However, there is still the question of who makes the judgment. In terms of historical cases, this is exactly the case in social events where all the so-called Seven Deadly Sins occur.


The best example is the Guatemala coup of 1953-1954. For example:


When the elected president of Guatemala, Jacobo Árbenz, was invaded and attacked by mercenary groups recruited from neighboring regions outside the country and by some local rebels, General Castillo Armas of Guatemala, and even when the media in general was caught up in the hands of the anti-government forces, and the military power of the anti-government forces was exaggerated in order to promote the mutiny of the army and the popular disaffection. The role of the CIA's international mercenaries, who were no match for Guatemala's government forces, was in fact a psychological war based on the overwhelming control of the local media.


When the military officer (Carlos Enrique Díaz de León) approached the U.S. and the rebels with a promise to abdicate only the democratically elected president of Guatemala, which was rejected by the U.S. and the rebel army, he discovered that their demands went beyond a mere change of regime and the execution of the perceived communist leaders, to the entire country, and in particular the abolition of the nationalized land and its return to the U.S. monopoly capital (the United Fruit Company), and the return of the land to its owners. (As in the case of Hong Kong's large-scale riots, the masterminds are locally operated monopoly capitals, whose pattern of asking for intervention and assistance from outside the country is common. In the final analysis, it is the interests of the capital that explains the entire manifestation of the movement, as in the case of the Anti-Fugitive Offenders Amendment Bill, from the local business community fearful of being extradited to the Mainland for commercial offenses, which is why the Hong Kong General Chamber of Commerce was the first to strike out the extradition clause for commercial offenses). If he (Carlos Diaz) had openly disclosed to the people what was going on at the time (which, of course, was classified) and called for a full-scale war, this would have been what is known as an overwhelming public interest disclosure. In the end, instead, the officer was subsequently removed by the CIA before any effective resistance could be mounted within the military, let alone disclosed.


 The Castillo Armas forces could not have defeated the much larger Guatemalan array, but the air attacks, combined with the belief in the invincibility of the enemy, persuaded Guatemalan military officers to force Arbenz to resign. No Communists, domestic or foreign, came to his aid. He asked the head of the officers, Army Chief of Staff Col. Carlos Diaz, only that he give his word not to negotiate with Castillo Armas, and Diaz, who despised the rebel commander as much as Arbenz did, readily agreed. What Diaz did not realize was that the United States would not be satisfied merely to oust Arbenz. Castillo Armas had been groomed as the new head of government, and that was not negotiable.


A CIA official, Enno Hobbing, who had just arrived in Guatemala to help draft a new constitution (sic) for the incoming regime, told Diaz that he had "made a big mistake" in taking over the government. "Colonel," said Hobbing, "you're just not convenient for the requirements of American foreign policy."

 

Presently, Peurifoy confronted Diaz with the demand that he deal directly with Castillo Armas. At the same time, the Ambassador showed the Guatemalan colonel a long list of names of some leaders, requiring that Diaz shoot them all within 24 hours.

 

"But why?" Diaz asked."Because they're communists," replied Peurifoy.

 

Although Diaz was not a communist sympathizer, he refused both requests, and indicated that the struggle against the invaders would continue. Peurifoy left, livid with anger. He then sent a simple cable to CIA headquarters in Florida: "We have been double-crossed. BOMB!" Within hours, a CIA plane took off from Honduras, bombed a military base and destroyed the government radio station. Col. Castillo Armas, whose anti-communism the United States could trust, was soon the new leader of Guatemala.

 

The propaganda show was not yet over. At the behest of the CIA, Guatemalan military officers of the new regime took foreign correspondents on a tour of Arbenz's former residence where they could see for themselves rooms filled with school textbooks published in ... yes, the Soviet Union. The New York Times correspondent, Paul Kennedy, considered to be strongly anti-Arbenz, concluded that the "books had been planted" and did not bother to report the story. Time made no mention of the books either, but somehow came upon the story that mobs had plundered Arbenz's home and found "stacks of communist propaganda and four bags of earth, one each from Russia, China, Siberia and Mongolia. " Time's article made it clear enough that it now knew of the American role in Arbenz's downfall (although certainly not the full story), but the magazine had nothing to say about the propriety of overthrowing a democratically elected government by force.

 

 

🔻 COMMENT 【評語】

 

一言以蔽之,雖港區國安法可處理所有組織,尤其是公司條例下的公司,但在即將立法的23條上,公司條例下的公司成為可禁止組織條款中的豁免對象。換言之,公司成了基本法23條,《維護國家安全條例》的豁免對象了。這就會是本港國安系統的最大弱點。

 

In a nutshell, although the Hong Kong national security law can deal with all organizations, especially companies under the Companies Ordinance, companies under the Companies Ordinance will become exempted from the prohibited organization provisions in the forthcoming legislation on Article 23. In other words, companies will be exempted from Article 23 of the Basic Law, the Safeguarding National Security Ordinance. This will be the greatest weakness of the national security system.

 

 


 

Hong Kong Intelligence Report #122 公司條例下的公司免於基本法23條?被商界去勢的《維護國家安全條例草案》

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