The NPC Standing Committee (NPCSC) unanimously approved the Law on Safeguarding National Security in the Hong Kong Special Administrative Region [香港特别行政区维护国家安全法] (Law) on the morning of Tuesday, June 30. That afternoon, the NPCSC separately listed the Law in Annex III to the Hong Kong Basic Law so that it can be enforced in the city. The Law took effect in Hong Kong later that day, at 11 p.m., when it was made public for the first time. The NPCSC previously released (via Xinhua) an excerpted explanation of the Law, which we have summarized here. For now, we will not restate what we already covered in that prior summary, in the interest of time. Instead, here, we will focus on the criminal provisions of the Law (which have heretofore been withheld) and other significant provisions that were not previously disclosed.
Three aspects of the Law are particularly problematic: (1) its criminal provisions are worded in such a broad manner as to encompass a swath of what has so far been considered protected speech; (2) it provides for the direct application of mainland Chinese law—the notoriously restrictive Criminal Procedure Law [刑事诉讼法] no less—in Hong Kong in certain circumstances, outside the Annex III mechanism; and (3) it displaces certain core protections for the accused under Hong Kong law and grants the police sweeping investigative powers without judicial oversight.
Meaning of Certain Terms
The criminal provisions of this Law are strikingly similar to certain provisions in the mainland’s Criminal Law [刑法]—not only in terms of the substantive elements of the crimes, but also in terms of the legal terminology used. Article 64 thus instructs Hong Kong authorities to apply the following rules of conversion (terms in this Law are on the left):
- “fixed-term imprisonment” [有期徒刑]: imprisonment;
- “life imprisonment” [无期徒刑]: imprisonment for life;
- confiscation of property: confiscation of proceeds of crime;
- criminal fine: fine;
- “short-term detention” [拘役]: imprisonment, detention in a detention centre, or detention in a training centre;
- “restriction” [管制]: community service, or detention in a reformatory school; and
- revoke license or business permit: revoke registration or exemption from registration, or revoke licence.
Power of Interpretation
The Law provides that the NPCSC has the sole power of interpretation (art. 65). Unlike the Hong Kong Basic Law, it apparently does not leave the Hong Kong courts—which will be responsible for trying most of the crimes under this Law—any authority to interpret it. Nor does it indicate what the courts should do when they inevitably need to give some meaning to the myriad undefined terms in this Law. Should they go ahead and interpret it, only to risk being overruled by the NPCSC? Or should they request an interpretation by the NPCSC every time ambiguity arises? The Law fails to answer such questions that will most certainly come up in practice.
Granting the NPCSC the exclusive power of interpretation raises two other concerns. First, it would seem to weaken (if not eliminate) the protections for the accused in national security cases. Article 4 of the Law guarantees the application of International Covenant on Civil and Political Rights, but that would be meaningless if the NPCSC can just override the Covenant’s protections with its interpretations. Second, the NPCSC could potentially use its sole interpretive power to write additional laws for Hong Kong without complying with the Annex III process. Although this Law and the mainland Criminal Law share some terminology, this Law is not a self-contained criminal code. The NPCSC may well impose additional rules from the Criminal Law on Hong Kong via interpretations.
Crimes & Penalties
Chapter VI of the Law prescribes four sets of crimes—relating to, respectively, secession, subversion of State power, terrorism, and collusion with foreign forces—as well as the corresponding penalties. This Chapter also provides for the scope of the Law’s application. We discuss these provisions in detail below.
It is a crime to “organiz, plan, commit, or participate in” one of the following acts, “with a view to committing secession or undermining national unification” (art. 20, para. 1):
- separating Hong Kong or any other part of China from the People’s Republic;
- illegally altering the “legal status” [法律地位] of Hong Kong or any other part of China (e.g., achieving the independence of Hong Kong so that it is no longer a subdivision of China); or
- surrendering Hong Kong or any other part of China to a foreign country.
Neither “force” nor the “threat of force” is a necessary element of this crime (id.). A person convicted of this crime will be sentenced according to his or her role (id. para. 2):
- a “principal offender” or one who commits a “grave” offense: 10 years to life;
- an active participant: 3 to 10 years; or
- any other participant: up to 3 years.
Relatedly, it is also a crime to “incite, assist in, abet, or provide pecuniary or other financial assistance or property for” the commission of the crime described above (art. 21). Where the “circumstances are serious” (undefined), the offender will serve 5 to 10 years in prison; or up to 5 years when the “circumstances are minor” (also undefined) (id.).
Subversion of State Power
It is a crime to “organize, plan, commit, or participate in” one of the following acts, “with a view to subvert State power” by “ force, threat of force, or other unlawful means” (art. 22, para. 1):
- overthrowing or destroying China’s basic system as established by the P.R.C. Constitution;
- overthrowing China’s central authority [政权机关] or the authority of Hong Kong;
- severely interfering with, disrupting, or undermining the lawful performance of duties by China’s central authority or the authority of Hong Kong; or
- attacking or damaging the premises and facilities used by the authority of Hong Kong to perform its duties and functions, rendering it incapable of doing so normally.
A person convicted of this crime will be sentenced according to his or her role (id. para. 2):
- a “principal offender” or one who commits a “grave” offense: 10 years to life;
- an active participant: 3 to 10 years; or
- any other participant: up to 3 years.
It is also a crime to “incite, assist in, abet, or provide pecuniary or other financial assistance or property for” the commission of the crime described above (art. 23). Where the “circumstances are serious,” the offender will serve 5 to 10 years in prison; or up to 5 years when the “circumstances are minor” (id.).
The Law provides for four terrorism-related offenses, roughly criminalizing, respectively, the involvement in terrorist activities, involvement in terrorist organizations, material support to terrorism, and advocacy of terrorism.
Involvement in terrorist activities. It is a crime to “organize, plan, commit, participate in, or threaten to commit” a list of “terrorist activities,” “causing or intended to cause grave harm to the society, with a view to coercing the [central government, the Hong Kong government,] or an international organisation, or intimidating the public in order to pursue political agenda” (art. 24, para. 1). Those activities include:
- serious violence against a person or persons;
- explosion, arson, or dissemination of poisonous or radioactive substances, pathogens of infectious diseases, or other substances;
- sabotage of means of transport, transport facilities, electric power or gas facilities, or other combustible or explosible facilities;
- serious interruption or sabotage of electronic control systems for providing and managing public services such as water, electric power, gas, transport, telecommunications, and the internet; or
- other dangerous activities which seriously jeopardize public health, safety, or security.
Unlike Hong Kong’s existing terrorism ordinance, the Law provides no exemption for protests, advocacy, or similar activities protected by free speech.
Anyone who commits this crime and “causes serious bodily injury, death, or causes significant losses of public or private property” will serve 10 years to life in prison (art. 24, para. 2). Other offenders will serve 3 to 10 years (id.).
Involvement in terrorist organizations. A “terrorist organization” is defined as any organization that “commits, intends to commit, or participates, or assists in the commission of” the previous crime (art. 25, para. 2). A person who is involved in a terrorist organization will be sentenced according to his or her role (id. para. 1):
- an organizer or leader: 10 years to life, with confiscation of property;
- an active participant: 3 to 10 years, with fines; or
- any other participant: up to 3 years, with fines.
Material support to terrorism. It is a crime to provide material support—including training, weapons, information, funds, labor, explosives, and a series of other tangible and intangible support—to terrorist organizations, terrorists (undefined), or terrorist activities (art. 26, para. 1). Where the “circumstances are serious,” the offender will serve 5 to 10 years in prison, with fines or confiscation of property; or up to 5 years, with fines, when the “circumstances are minor” (id.).
Advocacy of terrorism. It is a crime to “advocate” [宣扬] (undefined) terrorism or incite the commission of a terrorist activity (art. 27). Where the “circumstances are serious,” the offender will serve 5 to 10 years in prison, with fines or confiscation of property; or up to 5 years, with fines, when the “circumstances are minor” (id.).
Collusion with Foreign or External Forces to Endanger National Security
The crimes of “collusion”—which includes conspiring with, or receiving support from, a foreign entity (whether a country, organization, or individual)—encompass two separate crimes.
First, it is a crime to “steal, spy, obtain with payment, or unlawfully provide State secrets or intelligence concerning national security” (both concepts undefined) for a foreign entity (art. 29, para. 1).
Second, it is also a crime to collude with a foreign entity to commit any of the following acts (id.):
- waging a war against China, or using or threatening to use force to “seriously undermine” China’s sovereignty, unification, and territorial integrity;
- “seriously disrupting” the formulation and implementation of laws or policies by the Hong Kong government or by the central government, which is likely to cause “serious consequences”;
- rigging or undermining an election in Hong Kong, which is likely to cause “serious consequences”;
- imposing sanctions or blockade, or engaging in other “hostile activities” against Hong Kong or China; or
- provoking by unlawful means “hatred” among Hong Kong residents towards the central government or Hong Kong government, which is likely to cause “serious consequences.”
It goes without saying that none of the quoted phrases in the list above is defined. A person convicted of either of these crimes will serve 3 to 10 years in prisons; or 10 years to life, if the offense is “grave” (id. para. 2)
The Law also makes it a crime to collude with a foreign entity to commit the crime of secession or subversion, but such conduct will be punished as either of those two crimes (art. 30).
The Law provides for additional penalties for those convicted of the crimes it prescribes. First, a corporate entity that commits a national security crime under this Law will be fined, and have its operation suspended, or have its license revoked (art. 31). Second, the Law authorizes the forfeiture of all illegal proceeds as well as the funds and tools “used or intended to be used” in the commission of a crime (art. 32). Third, convicted offenders who are not permanent residents of Hong Kong will be deported (art. 33). And fourth, a convicted offender will be permanently barred from standing for elections or holding any public office, and will be removed from any public office he or she then holds (art. 35).
Scope of Application
While the Law has no retrospective effect (art. 39), it provides for three broad bases for jurisdiction.
Territorial jurisdiction. The Law applies to any prescribed crime that occurs in Hong Kong, including on board any Hong Kong-registered aircraft or vessel (art. 36). When any part of a criminal act or its effects occurs in Hong Kong, that act is deemed to have occurred there (id.).
Nationality jurisdiction. It applies to any prescribed crime committed by a Hong Kong permanent resident (or an entity established in Hong Kong) outside Hong Kong (art. 37).
Protective jurisdiction. It also applies to any prescribed crime committed against Hong Kong from outside the city, by any person who is not a permanent resident (art. 38). There is no requirement that the act also be criminal in the jurisdiction where it takes place.
Bail (art. 42, para. 2). The Law reverses the statutory presumption in favour of bail (see Cap. 221, § 9D). It directs the judges to deny bail in national security cases unless they have “sufficient grounds” for believing that a suspect or defendant will not continue to commit acts endangering national security.
Investigative powers (art. 43). The Law allows the national security division of the Police Force to take seven additional measures when investigating national security cases—in addition to the powers the police already hold under existing law. Those measures include searching private premises and electronic devices without a warrant, and, with only the Chief Executive’s approval, intercepting the communications and conducting covert surveillance of persons “reasonably” suspected of being involved in national security crimes. Under current Hong Kong law, however, searches and covert surveillance generally require judicial approval, with only a few narrow exceptions.
Selection of judges (art. 44). The Chief Executive may designate a pool of judges to hear national security cases. They serve only one-year terms, however, and may be removed at any time if their statements or behaviors endanger national security. Contrary to what the Law’s explanation says, only incumbent judges are eligible to hear national security cases.
Jury trial (art. 46). The Law does not eliminate the right of trial by jury in national security cases. But the Secretary for Justice—i.e., the chief prosecutor—can decide to dispense with a jury trial in a particular case on some fairly broad grounds, including the involvement of “foreign factors” [涉外因素], the protection of State secrets, or the protection of the jurors’ and their family members’ personal safety. The court must comply with the Secretary’s decision and assign a panel of three judges to hear the case.
New Central Government Agency’s Authority
As previously disclosed, this Law establishes a new central government agency in Hong Kong, the Office for Safeguarding National Security [维护国家安全公署], which supposedly would have jurisdiction only over “very few” national security cases. But the Law’s full text reveals that the Office’s jurisdiction is much broader than that characterization.
Article 55 authorizes the Office to investigate a national security case in one of the following situations, after the Hong Kong government or Office itself makes such a request to the central government, and the latter approves it:
- “the case is complex due to the involvement of foreign or external forces, thus making it difficult for [Hong Kong] to exercise jurisdiction over the case”;
- “a serious situation occurs where the [Hong Kong government] is unable to effectively enforce this Law”; or
- “a major and imminent threat to national security has occurred.”
This provision contains various undefined terms—such as “complex,” “serious,” “difficult,” and “major”—that are highly subjective and malleable. In addition, the Office itself can request the central government to allow it to exercise jurisdiction, even when, say, the Hong Kong government does not believe a case is “complex” or that it has any “difficult[y]” handling it. Would the central government deny such a request—made by one of its own agencies? Probably not.
When the Office exercises jurisdiction over a case, it is in charge of investigation, thus functioning like a police department (art. 56). The case will then be prosecuted by a prosecutor’s office chosen by the Supreme People’s Procuratorate—the top prosecutor’s office on the mainland—in a court chosen by the Supreme People’s Court—the mainland’s highest court (id.). The defendant will in effect be extradited to the mainland, perhaps even without the city government’s consent.
In such a case, the mainland’s Criminal Procedure Law will apply, along with the lack of judicial independence, the absence of the right to remain silent, the possibility of incommunicado detention, and significant restriction on the right to counsel in national security cases. This Law does provide, like the Criminal Procedure Law, that a suspect may retain counsel when first interrogated or detained by the Office (art. 58). But the counsel’s assistance must be “in accordance with law” (id.), likely meaning that it is still subject to the Criminal Procedure Law’s various restrictions.
Finally, while the Office and its personnel must abide by both national and Hong Kong law (art. 50, para. 2), this Law also gives them complete immunity from the Hong Kong government’s jurisdiction and authority when they perform official duties (art. 60).
If you like this Blog, please consider subscribing to our blog posts, following us on Twitter, or liking us on Facebook—and making a donation!
Comments & Pingbacks