FOR IMMEDIATE RELEASE     01 August 2025  ｜Macao

From: Hong Kong Rule of Law Initiative (HKROLIN)

Dear Chief Executive Sam Hou Fai,

The Hong Kong Rule of Law Initiative (HKROLIN), an independent legal watchdog committed to upholding constitutional rights and judicial integrity under the “One Country, Two Systems” framework, expresses profound concern regarding the arrest of Mr Au Kam San on 30 July 2025 under Article 13 of Macau’s National Security Law (NSL).

As Macau’s former President of the Court of Final Appeal (1999–2024), now serving as Chief Executive, you are uniquely positioned to ensure that Macau’s law enforcement practices reflect its civil law traditions, Basic Law guarantees, and international obligations.

This arrest appears to contravene both domestic legal standards and applicable international norms. We urge your administration to review and rectify what amounts to an unlawful deprivation of liberty based on vague, extrajudicial allegations—ones resembling the problematic reintroduction of sedition charges in Hong Kong, which have no legal basis under Macau law.

Legal Grounds of Concern

1. 1. Misapplication of NSL Article 13 (Collusion with Foreign Forces)

The alleged offence—that Mr Au disseminated “false and seditious information” to an “anti-China group” with intent to disrupt the 2024 Chief Executive election—fails to meet the statutory threshold under Article 13. There is no publicly available evidence that his conduct resulted in concrete acts threatening national security. Political commentary, however critical, remains protected under Articles 27 and 68 of the Basic Law, and Article 19 of the ICCPR, which applies to Macau via the Sino-Portuguese Joint Declaration.

2. 2. “Stirring Hatred” Is Not a Criminal Offence Under Macau NSL

Macau’s NSL does not criminalize abstract concepts such as “hatred.” Article 4 prohibits incitement to secession or subversion—not disapproval or dissent. Leading legal scholars confirm that Macau’s legal system requires concrete evidence of criminal intent and outcome rather than vague notions of subjective “hatred”:

• Han Zhu, Hong Kong Law Journal, Vol. 54, Part I (2024), pp. 53–63
• 郭晶, 《“一國兩制”研究》, 第 1 期 (2009), 頁 46–52

Macau’s legal system, steeped in evidentiary rigour, requires proof of clear intent and actual harm—not subjective interpretations of emotional tone. To date, no evidence has surfaced indicating that Mr Au engaged in incitement to criminal acts. This sedition allegation is legally unfounded under Macau’s NSL.

3. 3. No Viable Charge Under the Penal Code

Macau Penal Code Articles 132 and 295 address incitement to criminal acts and threats to public order—not vague expressions of opinion. Law enforcement has not cited these provisions, nor provided evidence supporting their relevance, underscoring the absence of a legal foundation.

4. 4. Violation of Electoral Free Expression Protections

While Macau’s election law may prohibit individuals from urging voters to boycott or cast invalid ballots, there is no evidence Mr Au engaged in any such acts. Even if such allegations were made, these legal restrictions themselves may not be compatible with Macau’s obligations under the International Covenant on Civil and Political Rights (ICCPR). As clarified by the UN Human Rights Committee’s General Comment No. 34 (2011, para. 28):

“… while it may be permissible to protect voters from forms of expression that constitute intimidation or coercion, such restrictions must not impede political debate, including, for example, calls for the boycotting of a non-compulsory vote.”

In other words, even if Mr Au had promoted a boycott—there is no evidence that he did—such alleged expression should not be criminalized unless it incites violence or coercion. The current arrest thus not only lacks evidentiary support, but also appears to enforce a provision whose legality under the ICCPR is questionable.

5. 5. Breach of International Legal Obligations

As a jurisdiction bound by the ICCPR, Macau must ensure that any restrictions on expression are precise, necessary, and proportionate. The invocation of NSL Article 13 against Mr Au fails all three tests—casting serious doubt on the SAR’s commitment to legal transparency and the integrity of “One Country, Two Systems.”

Implications and Recommendations

As the first known arrest under Macau’s NSL, this case sets a precedent with far-reaching consequences. The potential cross-contamination of Hong Kong’s unique sedition-based reasoning into Macau’s distinct legal system risks undermining judicial credibility and public confidence. Your leadership—as both jurist and policymaker—carries a heightened responsibility to uphold the rule of law, particularly under Basic Law Article 19.

HKROLIN stands in solidarity with the people of Macau—Hong Kong’s constitutional peers—in resisting legal overreach and defending due process. In light of the foregoing, we respectfully urge your administration to:

• Initiate a Legal Review: Direct the Public Prosecutions Office to assess the lawfulness of Mr Au’s arrest under the NSL, Penal Code, Basic Law, and ICCPR;
• Release Mr Au Kam San: If the charges do not meet the legal threshold, we call for his immediate release;
• Disclose Legal Basis and Evidence: Ensure transparency by publishing the statutory provisions and facts relied upon;
• Safeguard Judicial Integrity: Reaffirm Macau’s constitutional and international commitments in all future NSL enforcement actions.

Closing

HKROLIN remains committed to promoting legal accountability and constitutional awareness across both SARs. We trust that your administration will take steps to resolve this matter in a manner that reflects the SAR’s legal traditions and international obligations. Please do not hesitate to contact us at info@hkrolin.org to facilitate ongoing dialogue.

Yours sincerely,

Chi-Sang Poon, PhD
Founder and Editor-in-Chief
Hong Kong Rule of Law Initiative (HKROLIN)
On behalf of HKROLIN and concerned residents of Hong Kong and Macau

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