Hong Kong’s National Security Law Overview by Haldanes criminal law partner, Andrew Powner
After much publicity but virtually no local consultation, late yesterday evening (30 June 2020) the Central People’s Government passed a new national security law (“NSL”) for Hong Kong on the eve of the 23rd Anniversary of Hong Kong’s handover from UK to Chinese sovereignty.
Controversy surrounds the sudden implementation of the NSL by means of promulgation into the Hong Kong Basic Law under Article 18, a legal mechanism previously known by very few. With the wide ranging scope of the NSL, some are blaming its implementation on the Chief Executive and the current administration for its inability to deal with the civil disobedience and the demands of the protesters last year; and others are blaming the implementation of the NSL on certain parties in the Legislative Council (“LegCo”) for 23 years of inability to pass a local security law (with proper scrutiny by LegCo) under Article 23 of the Basic Law, as well as blaming the more radical protesters for their unprecedented violence and vandalism that marked 6 months of major social unrest last year. In any event, the NSL “safeguarding national security in the HKSAR” has come into effect and Haldanes now provide an overview of the main issues raised.
Needless to say, it is the future implementation of the NSL (starting from today 1st July 2020) that will determine whether it is overly draconian and breaches the principle of “One Country, Two Systems”; or whether the implementation of the NSL can be enforced within the Rule of Law, despite its wide ranging provisions. Also, whether the NSL is ultimately successful in its aim of bringing Hong Kong back on track after a year of major social unrest.
During a press conference this afternoon, the Chief Executive, the Secretary for Security, and the Secretary for Justice, were grilled by various members of the press about the extent of the NSL and the concerns raised by both local and international observers.
All three senior government officials repeatedly stressed that the NSL was designed only for a small number of persons who are found to be committing the very serious offences of secession, subversion, collusion with foreign forces, or terrorism. They stated that criticism of the government or of the NSL itself, would not constitute an offence.
The Secretary for Justice stated that all cases would be dealt with according to the existing prosecution policy of the Department of Justice (“DOJ”) as well as the Police Orders concerning detention for a maximum of 48 hours. They also noted the provisions under the Basic Law and human rights are specifically protected under Articles 3 and 4 of the NSL.
Nevertheless, there are a number of contentious areas which are summarised in this memorandum.
Articles 1 to 6: General Principles
The NSL is enacted to implement the principle of “One Country, Two Systems,” and to protect the lawful rights and interests of residents of the HKSAR.
Article 2 makes specific mention of abiding by the provisions of the Basic law. Article 4 states that human rights will be respected, including freedom of speech, of the press, of publication, of assembly, of procession and demonstration, as well as the international covenants currently applied to Hong Kong.
Article 5 states that the principle of the Rule of Law shall be adhered to in dealing with the NSL, including the presumption of innocence until proven guilty. This is a good start before the main provisions are explained.
Articles 7 to 11: Duties of the Government
Under Article 9, the government should take “necessary measures” to “strengthen” public communication, guidance, supervision and regulation over matters concerning national security, including those relating to schools, social organisations, the media and the Internet. Those necessary measures are yet to be defined.
Articles 12 to 19: National Security Committee
The establishment of a new Committee for Safeguarding National Security will be under the supervision of the Central People’s Government (“CPG”). Although all of the members of the Committee are Heads of various governmental departments, there will also be a National Security Advisor designated by the CPG (Article 15). Perhaps this is inevitable given the fact that the Committee is designated to deal with the national security of Hong Kong as a Special Administrative Region (”SAR”) of China (hence, “HKSAR”), whose own state interests may be discussed as well as those of the HKSAR.
Since the Committee deals with national security related matters, any decisions made by the Committee will not be subject to judicial review or interference by any outside parties. The work of the committee will also remain confidential. On a later date, Haldanes will be reviewing the implementation of similar national security laws in other countries whose workings, although confidential, are amenable to greater public scrutiny.
Notably, the provisions of the NSL decided upon by the Committee for Safeguarding National Security of the HKSAR will be exempt from judicial review (“JR”). The JR mechanism allows the judiciary (in certain circumstances) to scrutinise the exercise of legal and administrative powers by the government, which has previously been one of the “checks and balances” in the Hong Kong legal system to ensure that the Executive are not above the law (Article 14).
In the past, organs of the government in Hong Kong have been subject to oversight by LegCo and, in particular, judicial review by the Courts. This is therefore a new development.
Articles 20 to 21: Secession
Notably, under the offence of “organising, planning, committing or participating” in separating the HKSAR from the Peoples Republic of China (“PRC”), this also includes “any other part of the PRC”. Also, Article 20 refers to “whether or not by force or threat of force”. This criminalises the act of secession with or without force being used, which would therefore seem to include peacefully advocating independence for Hong Kong.
The penalties are particularly high with life imprisonment for the main perpetrator, and between 3 to 10 years for those who participate. Those who provide financial assistance are also covered in Article 21. It is therefore no surprise that local organisations who either advocate independence or previously did so, have now disbanded.
This also relates to Article 9, in which the HKSAR will take measures to strengthen public communications, guidance and supervision, including those relating to schools, universities, social organisations, the media and the Internet. During the press conference, the Chief Executive referred to this duty of the government as a preventative measure. We can perhaps expect more internet censorship of independence related posts.
Whilst stating that merely reporting on independence or criticising the NSL would not be an offence, it could later change into a criminal offence if there was any organisation or colluding involved under Article 20. Over time, the government hopes to educate Hong Kong youth to understand the illegality of advocating independence for Hong Kong. Judging from the age of many of the protesters who were arrested, there is quite a task in hand.
It is noted under Article 20 that offenders of an offence of a “grave nature” would receive life imprisonment or a term of not less than 10 years; those who “actively participate” in the offence would be sentenced to not less than 3 years or more than 10 years; and third category of “other participants” would be sentenced to not more than 3 years, either short-term detention or restriction. This may possibly include a suspended sentence, community service, or possibly being “bound over to keep the peace” (a “bind over”) for a year or more, but the provision appears to exclude a fine for minor offences.
In relation to any persons who might be arrested today (1 July, 2020) for carrying Hong Kong independence flags during the first march / illegal assembly taking place after the NSL was passed into Hong Kong law, (which NSL provisions are virtually unknown to the public until now), there is hope that the DOJ may consider offering a “bind over” (i.e., a mechanism with no criminal charge and instead a declaration to be of good behaviour), or that the Courts would consider a period of community service as a “restriction”, rather than invoking the more serious sentencing provisions of the NSL. Again, we shall have to “wait and see”.
Articles 22 to 23: Subversion
This relates to overthrowing or undermining the PRC or the HKSAR, either by force, or threat of force, or by other unlawful means. Following the protests in and around LegCo, an additional clause 3 concerns interfering, disrupting of or undermining the performance of duties of the PRC or HKSAR. It is unclear whether this might also include lengthy filibustering to prevent the passage of bills. Also, following the more violent protests and the major criminal damage caused to LegCo, paragraph 4 concerns attacking or damaging the premises used by the HKSAR in the performance of its duties. Similar heavy sentences apply, including for those who may provide financial assistance.
Articles 24 to 28 Terrorist Activities
This is defined as terrorist activities causing or intended to cause great harm to society with a view to coercing the PRC or the HKSAR or the public to pursue a political agenda.
The list of terrorist activities is widely drafted to include serious violence; explosions or arson; dissemination of poisonous or radioactive substances; sabotage of transport or transport facilities; serious interruption or sabotage of electronic systems or public services such as water, electricity, power, gas, transport, telecommunications or the internet; or, as widely drafted, “other dangerous activities which seriously jeopardise public health, safety or security”.
This would seem to include the major disruptive activities seen during the protests last year of throwing petrol bombs (and sometimes corrosive fluid) at the Police; committing arson as well as serious and repeated criminal damage to MTR stations, setting fire to traffic tunnels, smashing traffic lights, and attempts to derail trains. Also, criminal damage to buses and other public transportation facilities. Potentially, it could include the blocking of major public roadways, which was a common tactic of some of the more radical protesters, and it might include even the doxxing (ie, publishing private information on the Internet) of police officers and government officials.
Although all of these activities are already covered within the existing criminal law, if they are undertaking for a “political agenda”, then they either would or could fall within the NSL definition of terrorism.
The Secretary for Justice during the press conference today emphasised that all such activities would be taken in context and viewed by the Department of Justice as a whole, depending on the circumstances of each offence. Clearly, there is a deterrent effect designed to stop the arson and vandalism seen on Hong Kong streets during the more violent protests.
As part of the deterrent effect, the sentences range from 3 years to life imprisonment.
Article 25 extends the offence of terrorism to allow the confiscation of property. This includes those who participate or assist in the commission of a terrorist related offence. Article 26 concerns those who support or train potential terrorists (as defined above).
Article 27 relates to those who advocate or incite terrorism, which also includes confiscation of property as well as imprisonment. Article 28 acknowledges that other provisions exist under Hong Kong law to fight terrorism, including the freezing of property.
Articles 29 to 33: Collusion with a Foreign Country or with External Elements to Endanger National Security
Like most countries, the HKSAR seeks to prosecute those who spy, obtain by payment, or unlawfully provide state secrets or intelligence concerning national security to a foreign country. However, the concern is the potentially wide definition of “state secrets or intelligence concerning national security”, which has caused some controversy with similar prosecutions in mainland China.
The offence also covers those who seek foreign interference in order to wage war against China, or use force to undermine its sovereignty, or seriously disrupting the implementation of the laws of the HKSAR; including undermining elections, imposing sanctions or other hostile activities against the HKSAR or PRC.
It is stated that the legislation is not retroactive (also in a later clause and under Article 15 of the International Covenant on Civil and Political Rights) (“ICCPR”), and hence the submissions made to US Congress in 2019 / early 2020 by various Hong Kong politicians and activists would appear not to fall under sub-section 4 concerning “imposing sanctions against the HKSAR or PRC”.
Sub-section 5 introduces a new concept of provoking by unlawful means hatred among Hong Kong residents towards the PRC, which is likely to cause serious consequences.
This rather nebulous drafting demonstrates the difficulty of trying to mesh together the strict draughtsmanship requirements of the Hong Kong common law, as against the Chinese socialist legal system in the PRC. The implementation (if any) of this particular paragraph is certainly one to watch and Haldanes will continue to do so.
It is noted that a similar provision exists in the Crimes Ordinance under section 9 dealing with “Seditious Intention”, but we are still searching for any case where this charge has been used (see Cap 200, Laws of Hong Kong), which still uses the old references in the online edition of the Laws of Hong Kong, including “Her Majesty”. Haldanes are now undertaking further research about this previously little used or unused section of the Crimes Ordinance.
It reads: “A seditious intention is an intention (a) to bring hatred or contempt or to excite disaffection against the person . . . or against the government of Hong Kong; (b) to excite . . . inhabitants of Hong Kong to attempt to procure alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; (c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong (d) to raise discontent or disaffection amongst . . subjects or inhabitants of Hong Kong; (e ) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; (f) to incite persons to violence; or (g) to counsel disobedience to the law or any lawful order.
Section 2 of the same Ordinance is important because it provides a defence that any act, speech or publication is not seditious by reason only that it intends to show that the government have been misled or mistaken in any measures; or to point out errors or defects in the government or constitution of Hong Kong or in the administration of Justice, with a view to remedying such errors or defects; or to persuade the government to attempt to procure by lawful means an alteration of any matter in Hong Kong established by law; or to point out any matters which are producing or have a tendency to produce feelings of ill will and enmity between different classes of the population.
Prosecutions under this section require a written consent of the Secretary for Justice and must be prosecuted within six months of the offence being committed. Furthermore, no one shall be convicted of the offence on the uncorroborated testimony of one witness.
Article 20 of the ICCPR also mandates against inciting war and hatred, which may provide some further assistance with a definition of “hatred”. It is noted that there is a qualification that the provocation must be “by unlawful means”, and hence the provocation itself must also be against the law.
Penalties range from life imprisonment for a “grave nature” down to 3 years. Article 33 tries to encourage whistle-blowers by offering a lighter penalty.
Article 34: Deportation
The NSL allows for deportation of non-permanent residents of Hong Kong, which may be imposed as a sole punishment, or in addition to the other punishments set out in the legislation. This includes circumstances even when the person in question is not actually prosecuted “for any reason.” Since the NSL is not subject to judicial review, or review by the Hong Kong Immigration Department, this leaves the sanction of deportation from Hong Kong as a general provision in the armoury of the NSL, even without charge.
Article 35: Public Officers
This states that any person convicted of an offence under the NSL shall be disqualified from standing as a candidate in LegCo or District Council elections, or from holding a public office. Any person already holding such a position would be removed from office. It is not clear whether this banishment would be for life or for a lesser period.
Articles 36 to 39: Extra-territorial Effect
Permanent residents of the HKSAR or companies incorporated within the region can commit the offence outside of Hong Kong, including on an aircraft or vessel.
Rather surprisingly, Article 38 states that the law even applies to persons who are not permanent residents of the region in circumstances where the offence is allegedly committed outside the region. The latter provisions would seem exceptionally difficult to enforce and perhaps are designed more as a deterrent to stop persons who advocate matters covered by the NSL from setting foot in Hong Kong.
Articles 40 to 43: Jurisdiction
One of the most controversial elements is that although the HKSAR shall have jurisdiction in most cases, there is an exception specified in Article 55, as explained below.
The written consent of the Secretary for Justice is required before proceeding with a prosecution under the NSL. Trials would be on indictment in the High Court, which would be open unless involving state secrets or public order. In such circumstances, the trials would be closed or partially closed to the public and media. Nevertheless, the judgment would be delivered in open court.
In a reversal of the presumption of bail (based on the presumption of innocence until proven guilty), in cases involving the NSL, no bail would be granted unless the Judge has sufficient grounds for believing that the defendant would not continue to breach the NSL. However, presumably those accused of lesser offences under the NSL, such as the waving of a flag, would be granted Court bail on the ground that the Judge (or Magistrate) would have sufficient grounds to believe that they will not continue to commit acts endangering national security (Article 42). Since the Secretary for Justice during the press conference today indicated that the Police would still act under the Police Force Ordinance in terms of detention for up to 48-hours, it would therefore seem logical that the Police also have a continuing right to grant police bail until such time as the suspect appears in Court, as is the current police bail procedure.
This would appear to be the case from Article 17 in which the Hong Kong Police are empowered to perform all of their other duties as necessary for enforcement of the NSL.
Similar to other government agencies, the new branch of the Police established under the NSL (Article 16) will be empowered to obtain search warrants, surrender travel documents (like the Independent Commission Against Corruption / ICAC), applying for restraint orders, and interception of communications, as well as conducting covert surveillance. Although these provisions are also available for many other serious crimes, the difference is the removal of judicial oversight in the interception of communications (and possibly the confiscation of travel documents). Instead, this would be supervised by the Chief Executive.
Another major change is that a suspect under the NSL would be required to answer questions and produce materials, in the same manner as currently required under the Securities and Futures Ordinance, Cap 571, Laws of Hong Kong (“SFO”) at section 187. However, the difference under the SFO is that the person can actually claim privilege against self-incrimination so that his answers are not used against him in a criminal trial. There may be a future test case in which a suspect tries to invoke the right to silence under Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”).
Articles 44 to 47: Appointment of Judges
The Chief Executive is given a wide range of judicial officers to hear NSL cases from Magistrates and Recorders up to Judges of the Court of Final Appeal. In this regard, the Chief Executive may consult with the Chief Justice, as well as with the Committee for Safeguarding National Security. The Chief Executive herself has stated that, from the panel of qualified Judges, she would not be choosing individual judges for particular cases, but instead would rely upon the existing procedures by leaving the matter to the Chief Justice. This would be sensible.
Rather oddly, a provision is included for removing a Judge if he or she has made any statement or behaved in any manner endangering national security. By convention, this has previously been the remit of the Chief Justice in extremely rare cases where the integrity of a Judge has come into question.
In High Court cases, the Secretary for Justice may direct that the case be heard by a panel of three judges instead of by a jury. This is a new concept for Hong Kong, although not in other jurisdictions for certain categories of offences.
Another new feature in Article 47, is that where a question arises as to whether an act concerns national security, or whether evidence concerns state secrets, then a certificate would be obtained from the Chief Executive which is binding on the Courts. This implies that there may be evidential questions concerning the nature of state secrets or national security, and until we have seen sight of a certificate and the mechanism involved, we cannot comment further. A similar mechanism exists for the Secretary of Justice to provide a certificate in certain categories of criminal offences under existing Hong Kong law before a trial can proceed.
Articles 48 to 53: National Security Office
The Central People’s Government will establish an office for safeguarding national security (the “NSO”). The tasks of the NSO include analysing developments in Hong Kong; overseeing, guiding and coordinating the HKSAR in the performance of its duties, collecting and analysing intelligence concerning national security, and handling NSL cases in accordance with the law (which includes Article 55 below).
The NSO staff concerned would abide by the laws of the HKSAR as well as the PRC (subject to Article 60 below). Article 53 states that the NSO would oversee and provide guidance on the work of the HKSAR for safeguarding national security. The extent of this guidance is undefined and remains to be seen.
Article 54: The Press
The NSO would also take measures to “strengthen the management of and services for” the departments & NGOs of foreign countries, as well as news agencies of foreign countries. Again, the extent of this management supervision and the “necessary measures” are also not yet defined. Both the local and international press anxiously await clarification.
Article 55: Jurisdiction of PRC in 3 Exceptional Cases
The most controversial aspect of the NSL is that the NSO will exercise jurisdiction over cases of endangering national security in circumstances where (i) the cases are complex due to the involvement of a foreign country or foreign elements; or (ii) there is a serious situation where the HKSAR is unable to enforce the law; or (iii) where there is a major or imminent threat to national security.
In such cases, the Supreme People’s Procuratorate shall prosecute the case under PRC law which would be heard before the Supreme People’s Court. This, of course, is a major departure from the existing judicial system which, to date, does not allow extradition to mainland China.
At present, there is no limit on the penalties to be imposed in such cases and this particular provision requires further urgent clarification concerning the circumstances when it may be invoked as well as the provisions for the right to a fair trial (included in Article 58). The Hong Kong government has tried to provide reassurance that this particular provision would only be applied in a very small number of exceptional cases falling within the more serious crimes set out in the NSL, and even then subject to the conditions (i) to (iii) above.
One proviso is that a suspect arrested under Article 55 would have an immediate right to a defence lawyer (who must abide by the strict rules concerning confidentiality), and has a right to a fair trial without undue delay (Article 58).
Articles 56 to 66: Other Important Articles
Article 60: The NSO staff are not subject to Hong Kong laws in the performance of their duties, including no right for the Hong Kong Police to search their vehicles (despite Article 48 above).
Article 62: Where there is a conflict between the local laws and those of the PRC, then the NSL shall prevail. Depending on how the NSL is implemented, this may well be a future area of contention given the rights of Hong Kong citizens set out under the Basic Law, the Bill of Rights Ordinance and under the ICCPR.
Article 65: Interpretation of the NSL is vested in the Standing Committee of the National People’s Congress (“NPC”). At first glance, this is not compatible with Article 82 of the Basic Law which leaves interpretation to the Hong Kong Courts, although that has remained subject to the possible reinterpretation by the NPC under certain circumstances; as well as the proviso concerning state security and a state of emergency under Article 18 of the Hong Kong Basic Law, which notably has not been used to promulgate or introduce the NSL, as instead the NPC has added the NSL to the list of laws in Annex III of the Hong Kong Basic Law.
Commentary & Conclusion
It will be important to see how the NSL is going to be interpreted and enforced. The analogy we would give is one of funnel. Due to lack of consultation and normal due process in passing the law, it is very widely drafted. However, the Hong Kong Police need guidelines for specific offences in order to arrest a person under the new legislation. That is the first narrowing layer of the “funnel”, and we will have to see how the police are trained in enforcing the new law.
The next layer is the Department of Justice, who are tasked to uphold the Rule of Law. The DOJ have been careful to try to only bring charges according to their established guidelines in cases where there has been sufficient evidence to justify a criminal trial. In this regard, there have been a number of acquittals as well as convictions both after the “Yellow Umbrella” movement in 2014, as well as after trials resulting from the 2019 civil unrest. Many thousands of persons arrested during the 2019 civil unrest (with some charged with rioting and other serious offences) are still on bail whilst the strength of evidence is properly examined. In upholding the Rule of Law, the DOJ also prosecuted some police officers who were convicted and jailed for assaulting protesters during the previous civil unrest incidents in 2014.
We then come to the narrow end of the “funnel” whereby legal interpretations and precedents are set down by the Judges and Magistrates. The Courts remain independent and include a right of appeal (if the case has merit) to the Court of Appeal and to the Court of Final Appeal. The Hong Kong judicial system remains a critically important safeguard.
If the separation of powers between the Executive, the Police, the DOJ and the Judiciary is properly maintained, then there would in normal circumstances be sufficient oversight to ensure a fair trial.
However, there are 3 main concerns with the NSL. Firstly, and most importantly, the so-called “exceptional cases” under Article 55 which would justify PRC jurisdiction over a limited number of cases, rather than the independent judicial process in Hong Kong.
Secondly, the concept of appointment of Judges to hear the national security-related offences by the Chief Executive. However, in this regard, the Chief Executive has given many assurances that she would appoint a panel of qualified Judges in conjunction with the Chief Justice (who are appointed by the existing Judicial Officers Recommendation Commission), as has been the convention. Nevertheless, this has yet to be seen in practice, and we also have the added complication of a National Security Advisor (Article 15) being sent by the NPC to “advise” on the implementation of the NSL legislation.
Thirdly, the NSO to be set up in Hong Kong (Article 48), whose scope and brief for interception of communications and intelligence is wide. Although we recall the presence of British MI5 agents / Special Branch in Hong Kong pre-1997, their operations were virtually unheard of and it is to be hoped that the NSO as a PRC agency will act with similar restraint. However, following the recent civil unrest and the rise of a local independence movement, how the NSO will operate in Hong Kong remains to be seen. Legitimate concerns have arisen following the highly publicised case of the booksellers in HK, as well as the arrest and detention of those advocating greater civil liberties within China. The reassurances given by government sources would appear to indicate that “One Country, Two Systems” would also be adopted in relation to the operation of the NSO, and the government strongly advocate that Hong Kong will still be granted a much higher degree of autonomy as well as maintaining its Rule of Law by stating that the NSO would be subject to the Hong Kong legal system (Article 50), even though the NSO staff members would not be obliged to do so (Article 60).
There is hope that the initial concerns over the new legislation will be similar to those experienced by many Hong Kong residents in 1997. At that time, many predicted the end of Hong Kong and its Rule of Law, however, Hong Kong continued to flourish and many of those who had taken residency abroad eventually returned to Hong Kong. The NSL legislation has rightly sparked global concern from governments and human rights organisations, but until we are able to see its actual implementation in light of the reassurances given by the government, one cannot predict with accuracy at this early stage exactly how this new legislation will be dealt with under “One Country, Two Systems”. Yet again, as in 1997, Hong Kong is breaking new ground with new legal concepts to be developed and monitored by a global audience.
Haldanes, as the largest criminal law firm in Hong Kong, will be studying the legislation and its implementation to be ready to represent our clients whenever required.
Andrew Powner, Managing Partner
1st July 2020