Jul 2020

New criminal offences under the National Security Law and its implementation

The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“the NSL”) formally takes effect from today. This article highlights the new criminal offences and other key legal issues arising from the implementation of the NSL.

 

I. The New Criminal Offences

Under Chapter III of the NSL, a person who organises, plans, commits or participates in any of the following acts may constitute a criminal offence.

1. Secession under Article 20 by:

    • separating HK or Others from China;

    • altering the legal status of HK or Others; or

    • surrendering HK or Others to a foreign country.

2. Subversion by force or threat of force or other unlawful means under Article 22 to:

    • overthrow or undermine the basic system of China;

    • overthrow the body of central power of China or Hong Kong;

    • seriously interfere in, disrupt or undermine the performance of duties and functions of the body of central power of China or Hong Kong; or

    • attack or damage the premises and facilities used by the body of central power of China or Hong Kong.

3. Terrorist activities causing or intended to cause grave harm to the society with a view to coercing the CPG and the government of Hong Kong under Articles 24 and 25 by:

    • causing serious violence against a person or persons;

    • causing explosion, arson or dissemination of poisonous or radioactive substances, pathogens of infectious diseases or other substances;

    • sabotaging means of transport, transport facilities, electric power or gas facilities, or other combustible or explosive facilities;

    • causing serious interruption or sabotage of electronic control systems for providing and managing public services;

    • causing dangerous activities which seriously jeopardise public health, safety or security; or

    • taking charge of a terrorist organisation.

4. Collusion with a foreign country or with external elements to endanger national security under Article 29 by:

    • stealing, spying, obtaining with payment or unlawfully providing state secrets or intelligence concerning national security for a Foreign Country or Others;

    • requesting a Foreign Country or Others;

    • conspiring with a Foreign Country or Others; or

    • directly or indirectly receives instructions, control, funding or other kinds of support from a Foreign Country or Others;

to wage war against China, disrupt the formulation and implementation of laws or policies by Hong Kong or China, rig or undermine an election in Hong Kong, impose sanctions or blockade or engage in hostile activities against Hong Kong or China or to provoke by unlawful means hatred among Hong Kong residents towards China.

The four offences carry the maximum penalty of life imprisonment. Some relatively minor offences of advocating, inciting, assisting, abetting or providing pecuniary or other assistance or property for the commission by other persons of the abovementioned offences under Articles 21, 23, 26 and 27 will result in lesser punishments.

 

II. Key Legal Issues Arising from the Implementation of the NSL

Establishment of the National Security Committee of the HKSAR

By virtue of Article 12, the National Security Committee led by the Chief Executive and heads of various governmental departments will be established under the supervision of the CPG. Article 14 provides that the work of the Committee is not to be influenced by any other agencies of the HKSAR and will remain confidential. More importantly, the decisions made by the Committee will not be subject to judicial review.

Establishment of the National Security Office

The CPG will establish the National Security Office in Hong Kong to exercise such powers necessary to give effect to the NSL (Article 48). Its functions are, amongst others, to collect and analyse intelligence relating to national security and process cases involving national security offences (Article 49). Further, the work of the Office is not governed by the HKSAR nor to be obscured by any other law enforcement agencies of Hong Kong (Article 60).

Extraterritorial jurisdiction of the law

The NSL applies to permanent residents of Hong Kong and other companies and organisations established in Hong Kong, even if the offences in question are committed outside of the territory of the HKSAR (Article 37). The NSL is also applicable to non-permanent residents of Hong Kong committing offences under the NSL outside of the territory of the HKSAR (Article 38).

Police powers under the NSL

A new National Security Department will be set up within the Hong Kong Police Force (Article 16). When handling national security cases, the police are given a wide range of power of investigation under Article 43. Most notably, with the permission by the Chief Executive, the police can intercept telecommunications and conduct secret surveillance (Article 43(6)). Also, persons who are in possession of information or materials related to investigations are required to answer questions and produce such information or materials (Article 43(7)).

PRC’s jurisdiction in three exceptional cases

It is provided under Article 40 that the HKSAR has jurisdiction in most national security cases, except for the three types of exceptional cases specified in Article 55, namely: 1) where the cases are complex due to the involvement of a foreign country or foreign elements; 2) a serious situation where the HKSAR is unable to enforce the law; or 3) a major or imminent threat to national security.

Power of interpretation

The power of interpretation of the NSL is vested in the Standing Committee of the National People’s Congress (Article 65). It does not authorise the courts of Hong Kong to interpret the NSL on their own. Where there are inconsistencies between the NSL and local laws of Hong Kong, the NSL shall prevail (Article 62).

Deviation from the presumption in favour of bail

Article 42 provides that under the NSL, an accused will not be granted bail unless the judge has sufficient grounds to believe that he will not continue to carry on acts that endanger national security. This is contrary to the “presumption in favour bail” under the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) – a judge should grant bail to an accused unless there are strong reasons not to do so (for example, when there is flight risk or a chance of committing an offence while on bail). This could be seen as a deviation from this long-established common law principle in Hong Kong’s legal system, although there is also a presumption against bail in extradition cases.

Direct appointment of judges by the Chief Executive

Under Article 44, the Chief Executive is empowered to directly appoint magistrates or judges from all levels of Hong Kong Courts to handle cases involving offences endangering national security. In doing so, the Chief Executive can, but is not obliged to, seek recommendations from the Committee or the Chief Justice of the Court of Final Appeal.

This appointment mechanism under the NSL can be contrasted with the existing practice of appointing judges by way of recommendations within the judicial branch. There are criticisms that such an appointment mechanism is a derogation from Separation of Powers, a fundamental principle under “One Country, Two Systems”.

 

III. Concluding remarks

The NSL is unprecedented legislation which was enacted according to a previously little known provision in the Basic Law, drafted by the National People’s Congress and passed behind closed doors. It remains to be seen whether the NSL can potentially still uphold “One Country, Two Systems”. For a detailed analysis on particular sections of the NSL, please refer to our Managing Partner Mr. Andrew Powner’s commentary here.

For details of our Criminal Law practice, please click here.

In this article, please note that the term “HK or Others” shall mean Hong Kong or any other parts of China. The term “China” shall mean the People’s Republic of China, including the Central People’s Government (“the CPG‘). The term “Foreign Country or Others” shall mean any country other than China and HK or Others, or an institution, organisation or individual outside China and HK or Others.

We emphasise that this article does not constitute legal advice and should not be construed or relied on as such.

Written by: Andrew Powner, Partner; Vivian Ho, Trainee Solicitor; and Jacky Tsai, Trainee Solicitor