I. What is National Security Law in HKSAR?
Ever since Hong Kong’s return to China on 1st of July 1997, article 23 of the Basic Law of HKSAR (“BL”) has been awaiting to be satisfied. Article 23 of the BL stipulates that Hong Kong SAR is obligated to enact its own laws to prohibit acts of treason, secession, sedition, subversion against the Central People’s Government, theft of state secrets, and ties between Hong Kong’s political bodies with foreign political bodies.
In 2003, the Hong Kong Legislative Council tried to satisfy Article 23 but failed. Later, on 30th of June 2020, the National Security Law of HKSAR (“NSL“) was passed unanimously by the Standing Committee of National People’s Congress (“NPCSC“) after consulting the Committee for the Basic Law of the Hong Kong Special Administrative Region and the Government of the Hong Kong Special Administrative Region. The NSL was directly promulgated in HKSAR through Annex III of the Basic Law.
II. Institutions created from National Security Law in HKSAR
The National Security Committee
The National Security Committee of the HKSAR has been established.[1] It is led by the Chief Executive and heads of government departments under CPG’s supervision. The decisions made by the Committee cannot be judicially reviewed. The work of the Committee is confidential and is not influenced by other institutions of the HKSAR.
The National Security Office
The National Security Office has also been established by the CPG in Hong Kong.[2] Its functions include collecting and analysing national security information, and processing national security cases. The Office is not governed by the HKSAR and any other law enforcement agencies in Hong Kong.
The National Security Department within the Hong Kong Police Force
A new National Security Department has been set up within the Hong Kong Police Force.[3] Police are now given a wide range of power to investigate. For example, the police can intercept telecommunications and conduct secret surveillance. Those in possession of information or materials relating to investigations must answer questions from the police and provide the information or materials to the police.
III. Details of National Security Law
There are four crimes under the NSL: secession, subversion, terrorism, and collusion with foreign or external force.
Secession
Secession refers to when an individual or entity breaks away from the country. The NSL deems an individual guilty of secession if the person, with a view to commit secession or undermine national unification, organises, plans, commits, participates, incites, assists in, abets or provides financial assistance in (1) separating HKSAR or any other parts of the PRC from the PRC, (2) altering by unlawful means the legal status of the HKSAR or other part of the PRC, or (3) surrendering the HKSAR or other part of the PRC to a foreign country.[4]
Consequences of committing Secession[5]
| Various Situations | Penalty |
| A person who is a principal offender or a person who commits an offence of a grave nature | Life imprisonment or fixed-term imprisonment of no less than ten years |
| A person who actively participates in the offence | Fixed-term imprisonment of at least three years but no more than ten years |
| Other participants | Fixed-term imprisonment of not more than three years, short-term detention or restriction |
| A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence | Of a serious nature: fixed-term imprisonment of not less than five years but not more than ten years |
| A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence | Of a less serious nature: fixed-term imprisonment of not more than five years, short-term detention or restriction |
Subversion
Subversion refers to when an individual or entity overturns or undermines the power and authority of the Central Government. The NSL deems an individual guilty of subversion if the person, with a view to subverting the State power, organises, plans, commits, participates, incites, assists in, abets or provides financial assistance in (1) overthrowing or undermining the basic system of the PRC established by the PRC Constitution, (2) overthrowing the body of central power of the PRC or body of power of the HKSAR, (3) seriously interfering in, disrupting or undermining the performance of duties and functions regarding the power of the PRC law or power of the HKSAR, or (4) attacking or damaging the premises and facilities used by the HKSAR, making it incapable to perform its usual duties and functions.[6]
Consequences of committing Subversion[7]
| Various Situations | Penalty |
| A person who is a principal offender or a person who commits an offence of a grave nature | Life imprisonment or fixed-term imprisonment of no less than ten years |
| A person who actively participates in the offence | Fixed-term imprisonment of not less than three years but not more than ten years |
| Other participants | Fixed-term imprisonment of not more than three years, short-term detention or restriction. |
| A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence | Of a serious nature: fixed-term imprisonment of not less than five years but not more than ten years |
| A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence | Of a less serious nature: fixed-term imprisonment of not more than five years, short-term detention or restriction |
Terrorist Activities
Terrorist Activities refers to when an individual or entity uses violence or intimidation against people. An individual would be guilty of terrorist activities if the person, with a view to coercing the CPG and Hong Kong government to pursue a political agenda, organises, plans, commits, participates, incites, assists in, abets or provides financial assistance in (1) serious violence against a person or persons, (2) explosion, arson, or dissemination of poisonous or radioactive substance, pathogens of infectious disease or other substances, (3) sabotage of means of transportation, transport facilities, electric power or gas facilities, or other combustible or explosible facilities, (4) serious interruption or sabotage of electronic control systems for providing and managing public services, including water, electric power, gas, transport, telecommunications and the internet, or (5) other dangerous activities that seriously jeopardise public health, safety or security.[8]
Consequences of committing Terrorist Activities[9]
| Various Situations | Penalty |
| Caused serious bodily injury, death or significant loss of public or private property | Life imprisonment or fixed-term imprisonment of not less than ten years |
| Other circumstances | Fixed-term imprisonment of not less than three years but not more than ten years |
| A person who organises or takes charge of a terrorist organisation | Life imprisonment or fixed-term imprisonment of not less than ten years, subject to confiscation of property |
| Actively participates in a terrorist organisation | Fixed-term imprisonment of not less than three years but not more than ten years and shall be imposed with a criminal fine |
| Other participants | Fixed-term imprisonment of not more than three years, short-term detention or restriction, and shall be liable to a criminal fine |
| A person who provides support, assistance or facility to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses substances to prepare for the commission of a terrorist activity | Of a serious nature: Fixed-term imprisonment of not less than five years but not more than ten years, and shall be imposed with a criminal fine or subject to confiscation of property |
| A person who provides support, assistance or facility to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses substances to prepare for the commission of a terrorist activity | Other circumstances: Fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine |
| A person who advocates terrorism or incites the commission of a terrorist activity | Of a serious nature: Fixed-term imprisonment of not less than five years but not more than ten years, and shall be imposed with a criminal fine or subject to confiscation of property |
| A person who advocates terrorism or incites the commission of a terrorist activity | Other circumstances: Fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine. |
Collusion with Foreign or External Forces to Endanger National Security
An individual would be guilty of collusion with foreign forces if the person steals, obtains with payment, or unlawfully provides State secrets or intelligence concerning national security for a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China in order to (1) wage war against the PRC, or using or threatening to use force to seriously undermine the sovereignty, unification and territorial integrity of the PRC, (2) seriously disrupt the formulation and implementation of laws or policies by the Government of HKSAR or CPG, (3) rig or undermine an election in the HKSAR, (4) impose sanction or blockade, or engage in other hostile activities against the HKSAR or the PRC, or (5) provoke by unlawful means hatred among Hong Kong residents towards the CPG or HKSAR Government.[10]
Consequences of committing Collusion[11]
| Various Situations | Penalty |
| Commits the offence | Fixed-term imprisonment of not less than three years but not more than ten years |
| Commits the offence of a grave nature | Life imprisonment or fixed-term imprisonment of not less than ten years |
| A person who conspires with a foreign country or an institution, organisation, or individual outside of the PRC to commit secession or subversion | More severe penalty in accordance with the provisions therein respectively |
The Scope of Application
The NSL applies to individuals who committed the crime within HKSAR, on board a vessel or aircraft registered in the HKSAR.[12] It also applies to an incorporated or unincorporated company set up within the HKSAR, or an organisation set up within HKSAR but commits an offence under the NSL outside of HKSAR.[13] At the same time, it applies to both permanent residents and non-permanent residents of the HKSAR.[14] Therefore, the NSL can be applied extraterritorial to Hong Kong.
Additionally, the NSL is not applied retroactively in that it will only apply and punish acts committed after its enactment, rather than before its enactment.[15]
Jurisdiction
The HKSAR will generally have jurisdiction over NSL cases in Hong Kong. However, the Office for Safeguarding National Security of the CPG will have jurisdiction over NSL cases when a case concerns one of the following situations:[16]
- The case is complex due to the involvement of a foreign country or external element,
- A serious situation occurs when the HKSAR government is incapable to effectively enforce the NSL, or
- A major and imminent threat to national security happened
Furthermore, all cases involving national security within the HKSAR will all be tried before a judge and jury in court.[17] The trial will be conducted in open court, open to media, and the public, unless the trial involves state secrets or public order, in which the trial will be closed to the media and the public.[18]
Another important thing to note is that no bail will be granted to a suspect unless the judge has sufficient grounds to trust that the suspect will not commit acts endangering national security, which refers to acts capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security.[19] The NSL preference for no bail is contrary to the tradition of presumption in favour of bail in Hong Kong.
Appointment of Judges
The Chief Executive has the power to directly designate judges or magistrates from all Hong Kong courts to handle cases concerning endangering national security.[20] The criteria for designating judges are only judicial and professional qualities. Judges with foreign nationality can also be appointed.[21] The Chief Executive can choose to seek recommendation from the National Security Committee or the Chief Justice of the Court of Final Appeal.[22]
Power of Interpretation and Other
The power of interpretation of the NSL rests with the Standing Committee of the National People’s Congress (NPCSC).[23] Hong Kong courts have no power to interpret the NSL on their own. The NSL prevails over all other local laws of Hong Kong. In addition, the Hong Kong courts have no jurisdiction to constitutionally and judicially review the NSL using the Basic Law and Bill of Rights Ordinance.[24]
IV. The Future
There are three national security crimes listed under article 23 of the Basic Law that have yet to be enacted in Hong Kong, which are sedition, act of treason, and theft of state secrets. These crimes are likely to be enacted through article 23 of the Basic Law.
V. Frequently Asked Questions about NSL
Would the National Security Law change the “One Country, Two Systems” Principle?
No, the NSL does not change the “One Country, Two Systems” principle. It does not change the capitalist system and high degree of autonomy granted by the CPG to Hong Kong. The legal system in Hong Kong remains the same, in which the judicial power remains independent and the final adjudication is still exercised by the Hong Kong Judiciary.
Would people’s rights and freedom remain protected?
Yes, the rights provided under the Basic Law are still enjoyed by Hong Kong residents. The NSL only targets acts of secession, subversion, terrorist activities, and collusion with foreign or external forces to endanger national security. It is only a minority of criminals endangering national security that will be punished.
Moreover, the Hong Kong Bill of Rights Ordinance states that the exercise of the right to free speech carries duties and responsibilities. It is subject to certain restrictions, including (a) the respect of the rights and reputations of others, and (b) the protection of national security, public order, public health or public morals.[25]
Do other countries also have laws protecting national security?
Yes. It is the duty of every government to prohibit any acts that endanger their country’s national security. For example, the United States has a sophisticated system of laws and regulations protecting national security. The United States has over 20 national security laws, with its highest sentencing being death penalty. Similarly, the United Kingdom has an extensive system of national security laws and regulations. Furthermore, on January 4, 2022, the United Kingdom enforced an even more extensive national security regime. Therefore, the US and the UK would be practising double standards in undermining the PRC for its efforts in safeguarding national security. It is also important to note that the system adopted in the HKSAR is purely within the ambit of the sovereignty of the PRC, which is a matter of the country’s internal affairs ever since the resumption of the exercise of sovereignty by the PRC over Hong Kong.
*Please note that this is a general summary of the position under the Laws of Hong Kong SAR and does not constitute legal advice.
—————
[1] Article 12 of the National Security Law of HKSAR.
[2] Article 48 of the National Security Law of HKSAR.
[3] Article 16 of the National Security Law of HKSAR.
[4] Article 20 of the National Security Law of HKSAR.
[5] Article 20 and 21 of the National Security Law of HKSAR.
[6] Article 22 of the National Security Law of HKSAR.
[7] Article 22 and 23 of the National Security Law of HKSAR.
[8] Article 24 of the National Security Law of HKSAR.
[9] Article 24, 25, 26, 27, and 28 of the National Security Law of HKSAR.
[10] Article 29 of the National Security Law of HKSAR.
[11] Article 29 and 30 of the National Security Law of HKSAR.
[12] Article 36 of the National Security Law of HKSAR.
[13] Article 37 of the National Security law of HKSAR.
[14] Article 38 of the National Security Law of HKSAR.
[15] Article 39 of the National Security Law of HKSAR.
[16] Article 55 of the National Security Law of HKSAR.
[17] Article 41 of the National Security Law of HKSAR.
[18] Ibid.
[19] Article 42 of the National Security Law of HKSAR.
[20] Article 44 of the National Security Law of HKSAR.
[21] https://www.info.gov.hk/gia/general/202007/02/P2020070200414.htm.
[22] Ibid.
[23] Article 65 of National Security Law of HKSAR.
[24] Article 14 of National Security Law of HKSAR.
[25] Article 16(3) of the Hong Kong Bill of Rights Ordinance.