Pilot Analysis on HK National Security Law Enacted on Jun 30 2020

Author: Shih-Shiuan Kao, Legal Researcher of Doublethink Lab

‘Lennon Tunnel’ in Aberdeen, Hong Kong — 25/09/2019, Photo by Joseph Chan. Source: Unsplash Photo.

The Congress of PRC passed the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (hereinafter “HK National Security Law”; this tentative English translation was provided by PRC state media Xinhua News) on Jun 30, and commenced at 23:00 of the same day. Since the scope of this legislation is broad and its impact would be significant, we would like to provide suggestions for Your activities related to Hong Kong regarding the enforcement of the law (see part A), based on a brief and pilot analysis of the HK National Security Law per se. (See part B, C, D)

A. Suggestions for Your Activities Related to Hong Kong Regarding the HK National Security Law

If Your organization has been in contact with or supported any participants of social movements or political activists in Hong Kong, or has reported related activities, or has issued statements that express understanding of these activities, then we recommend that:

1. Please avoid entry, transition or transference of flight in Hong Kong, or taking the flight operated by airlines registered in Hong Kong, e.g. Cathay. (See part C.-5.)
2. Consider adjustment of Your business structure in Hong Kong, to avoid harassment, law enforcement or other specific regulating measures from the officers of the specific department of police force or the HK Office of National Security of PRC. (See part B.-4.)
3. Please make sure that effective security measures have been implemented by both parties when contacting Hong Kong associates. Financial flows and logistics may be tracked and seized. (See part B.-3.)
4. If Your Officers or associates in Hong Kong are investigated, prosecuted or tried by this law, it’s highly likely that criminal procedure of PRC mainland (not Hong Kong’s) may apply, therefore substantive defense and a fair, open trial may not be feasible and intervention from outside may be highly difficult since the law impose duty of confidentiality. (See part D.)

B. Structure of the HK National Security Law

The law comprises 66 articles in 6 chapters:

1. Chapter II requires the Legislature of Hong Kong shall complete further legislation as soon as possible and perform other obligations to ensure national security; this chapter also establishes several novel organizations: “Committee for Safeguarding National Security” (hereinafter “the Committee”) that is supervised by the Beijing Authority, “Department for Safeguarding National Security” (hereinafter “specific department of police force”) under the Police Force of Hong Kong, and “specialized prosecution division” under the Department of Justice of Hong Kong. The head of the specific department of police force and the specialized prosecution division are de facto determined by the newly established Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region (hereinafter “HK Office of National Security of PRC”, see § 48). Finally, this chapter states that the expenditure of related affairs and the relevant posts are not subject to any relevant provisions of Hong Kong.
2. Chapter III describes several criminal offenses, which will be described and assessed in part C.
3. Chapter IV describes the jurisdiction and applicable regulations regarding related cases, which granted privilege of several measures (including: search and seizure, prohibition of leaving, freezing of assets, deleting certain messages online or providing assistance from certain persons or service providers, production of evidence or testimony from certain persons or (foreign) organizations and interception of communication or surveillance of suspected) to the specific department of police force. The chapter also grants the Chief Executive of Hong Kong the privilege to designate judges to handle relevant cases, and the Department of Justice may ask for a trial without a jury. Finally, when the Chief executive of Hong Kong issues a certificate that an act or related evidence involves national security and state secrets, this certificate is binding on the courts.
4. Chapter V establishes the HK Office of National Security of PRC, and describes the duties of the Office, including overseeing and guiding the Hong Kong Administration in the performance of safeguarding national security. This Office, together with the Committee and the Office of the Commissioner of the Ministry of Foreign Affair of PRC in Hong Kong, may take necessary measures to strengthen the management of foreign organizations (including governmental organs, NGO and news organizations). This chapter also states that, when a case concerning offense of this law meets certain requirements (see part D), the jurisdiction of this case may be transferred to PRC’s offices and courts, following the criminal procedure of PRC. Finally, this chapter grants privileges and immunities to the officers of the HK Office of National Security of PRC, and the Hong Kong Administration bears the duties of assistance to the Office.
5. Chapter VI states that this law prevails any provisions of local laws in Hong Kong when there are inconsistencies, describes the duty of confidentiality when handling the case, and the ultimate authority of interpretation of this law belongs to the Standing Committee of the National People’s Congress.

C. The Criminal Offenses Prescribed in HK National Security Law

The criminal offenses described in the Chapter III of the HK National Security Law include:

1. Secession and Undermining National Unification (§§ 20–21). The means to commit these offenses are NOT limited to “by force or threat of force”, i.e. peaceful means (e.g. peaceful demonstration or promotion of political ideas) to achieve goals listed in § 20 I may also be within the reach of this offense. Also, incitation, assistance or financial assistance (hereinafter “assisting behaviors”) of secessions are also criminally liable (§ 21).
2. Subversion (§§ 22–23). Although “by force or threat of force” is required by this provision, the relevant acts include “interference the performance of duties and functions of the body of the Hong Kong Administration or PRC” and “attacking or damaging the premises and facilities of the Hong Kong administration”, which may be expanded upon all demonstrations involving confrontations with the Authorities. The punishment of assisting behaviors of subversion is also included.
3. Terrorist Activities (§§ 24–28). Demonstrations involving confrontations may be punished by this offense. Also, assisting behaviors are also prohibited (§§ 26–27).
4. Collusion with Foreign Force to Endanger National Security (§§ 29–30). Including: providing state secret or intelligence to foreign forces; or being directed, controlled, funded or supported by the foreign forces, to wage war against Hong Kong or PRC, to disrupt legislation and policy implementation, interfere of local election, impose sanctions and blockages against Hong Kong and PRC, and to incite of hatred among Hong Kong residents to the Administration or PRC. All relevant foreign organizations or agents would be considered as accomplices (§ 29 III). Since Beijing Authority has tended to perceive recent social movements in Hong Kong as the result of foreign interference, all foreign organizations that are in contact with these social movements may be held liable under this provision; relevant cases may be handled as secession or subversions meeting certain criteria (see § 30 combined with § 29 III).
5. Other provisions (§§ 31–39): Long-arm jurisdictions (§ 36, 38) apply to all foreigners committing offenses described in this law against the Hong Kong Administration and PRC at ANYWHERE, therefore all foreigners can be prosecuted by the authority, and be arrested during the entry, transition or transference of flight in Hong Kong, or during the flight operated by airlines registered in Hong Kong (e.g. Cathay).

D. Provisions Concerning Jurisdictions and the de facto Deterioration of “One Country, Two System”

The § 55 in Chapter V of HK National Security Law states that, when “cases being complex due to the involvement of foreign force”, or “a serious situation that Hong Kong Administration cannot effectively enforce this law has occurred” or “a major and imminent threat to national security has occurred”, jurisdictions of relevant cases may, by the request of the Hong Kong Administration or the HK Office of National Security and following approval by the PRC government, be transferred to the Office, and the case shall be prosecuted by the mainland’s prosecutors and adjudicated by the mainland’s court, following the criminal procedure of PRC (mainland). Since social movements in Hong Kong are perceived as the result of foreign interference, and this law per se is the intervention of Beijing Authority for the failure of legislation and law enforcement by the Hong Kong Administration, this “exceptive” provision would highly likely to become the new norm, especially in cases that are highly politically aware of.

The most extreme situation of the regulation on Hong Kong by the Beijing Authority can be inferred from the combination of this provision, with § 60, § 49, § 62 and § 65: The HK Office of National Security of PRC, not the Hong Kong Administration, would become the de facto body of power that rules Hong Kong, backed by this provision that all dissidents can be arrested, investigated, and tried according to the law of mainland, thus the distinction established by the “One Country, Two System” would have been deteriorated and dysfunctional after the enactment of this law.