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Too Soon to Concede the Future: The Implementation of The National Security Law for Hong Kong--An HRIC White Paper

October 16, 2020

CONTENTS

Executive Summary

1. Introduction

2. Implementation of the National Security Law to Date

  • Despite targeting of peaceful exercise of fundamental rights, yet still—people persist
  • The Law creates an architecture of direct and indirect Central Government supervision, monitoring, and control of national security in Hong Kong—and jurisdictional tensions

3. Implementation Challenges: Taking Rights Seriously

  • Centering an international human rights framework
  • The NSL and international human rights—on the books and in practice
  • Ongoing structural, policy, and rights-related enforcement issues

4. Openings and Recommendations: “Landing the Plane”

  • Recommendations for further engagement by diverse stakeholders
  • Conclusion: What’s at Stake

Annexes

A. Updated HRIC annotated bilingual chart of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region with highlights of translation issues and suggested translation changes

B. Hong Kong’s national security entities and background on key appointed personnel

  1. The Committee for Safeguarding National Security (CSNS)
  2. The Office for Safeguarding National Security (OSNS)
  3. The Department for Safeguarding National Security of the Hong Kong Police Force (DSNS)
  4. The Specialised National Security Crimes Prosecution Division of the Department of Justice (SPD)

C. Related Resources

  1. Key government documents
  2. Hong Kong Bar Association statements
  3. Statements by international human rights experts
  4. Explainers and timelines
  5. Books and book chapters
  6. Websites and blogs

 

EXECUTIVE SUMMARY


On June 30, 2020, culminating a legislative process marked by unprecedented haste, secrecy, and a complete lack of public consultation, the Standing Committee of the National People’s Congress (NPCSC) unanimously passed the sweeping Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law or NSL). The NSL prohibits acts of secession, subversion, terrorism, and collusion with foreign forces and creates a set of new implementing entities, all effectively under the control of the Central People’s Government (CPG).

Like the pilot of a plane who has rushed to take off without fully checking fuel or completing other essential preparations, the CPG has prioritized perceived existential security threats at the risk of failing to address the inevitable and complex legal, structural, and governance challenges the Law has created.

The immediate and serious impacts are being widely- and deeply-felt in Hong Kong, most visible among them are censorship and self-censorship in the public sphere and in education (“soft-brainwashing that will affect an entire generation,” as one Hong Kong legal scholar observes), accompanied by government rhetoric that faithfully follows the script by the CPG.

But we believe it is too soon to concede the future of Hong Kong.

Against the troubling rights erosion made possible by the NSL and the political abandonment by the Hong Kong SAR government of its people are: the institutional and normative safeguards inherent in Hong Kong’s judicial and legal system, and the safeguards provided by international human rights instruments, including treaties, covenants, declarations, guidelines, recommendations, and principles. Many UN independent human rights have invoked these safeguards in their published guidelines and communications to the Beijing government reminding it of its obligation to respect and guarantee the rights of the Hong Kong people.

Indeed, the NSL itself also requires the Hong Kong SAR to “respect and guarantee human rights,” including those “under the Basic Law … and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong” (Art. 4), and to adhere to the rule of law (Art. 5).

To address these tensions and to ensure that the implementation of the NSL does not impermissibly restrict or undermine rights protected under HKSAR, national, and international law, international human rights standards and norms must serve as the foundation for monitoring, assessing impact, developing effective safeguards, informing needed legislative reforms, and ensuring a safe and enabling environment for civil society.

In addition to the important international efforts to address the rights problems posed by the NSL, including public statements, national legislation, and the creation of safe harbors and other options for individuals who must or choose to leave Hong Kong, the international community must develop concrete approaches to support the diverse sectors of Hong Kong society, in particular the young people as they grapple with a severely restricted climate. They need solidarity and concrete and spirit support from the international community as they continue to struggle to shape the future(s) of Hong Kong.

Summary of Recommendations

Recommendations for the central and HKSAR governments

  • Issue a corrected and legally authoritative English translation of the NSL
  • Strengthen cooperation with UN human rights mechanisms through concrete steps
    • Issue standing invitations to visit to the High Commissioner for Human Rights and special procedures.
    • Take concrete steps to implement outstanding recommendations of UN treaty bodies and experts, including the UN Committee on the Rights of the Child’s recommendation that the Hong Kong government reform relevant local laws and raise the minimum age of criminal responsibility to an internationally acceptable level.
  • Convene inclusive and diverse public consultation and input into the HKSAR’s responses to The Human Rights Committee List of Issues
    The Committee specifically identified issues related to laws on national security, anti-sedition and anti-terrorism and requested clarification of state of emergency and laws on national security, anti-sedition, and anti-terrorism, including information regarding:
    • the relationship between the Covenant and the National Security Law adopted on June 30, 2020;
    • measures in place or envisaged to ensure that the application and enforcement of the Law are not contrary to the provisions of the Covenant;
    • procedural and legislative measures envisaged to enforce NSL Articles 56 and 57;
    • the scope of the NSL application, including its extraterritorial application;
    • the meaning of the phrase “collusion with a foreign country or with external elements to endanger national security” provided for in NSL Article 29;
    • the powers and immunities given under the NSL to the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and the accountability mechanisms overseeing these bodies; and
    • information on any amendments made or envisaged to the laws of Hong Kong, China, in accordance with the National Security Law.
  • Accept technical assistance offered by UN experts including on matters in relation to national security, criminal, and counter-terrorism legislation
  • The People’s Republic of China should Ratify the ICCPR

Recommendation for legislators, courts and policymakers

  • Take on the dual-edged sword of vagueness

    Vague provisions in the NSL present the risk of the exercise of arbitrary discretion and restrictions on rights, but they should also be treated as an opportunity to define, clarify, and cabin the exercise of discretion and decision-making by the different actors. The specific issues raised by the Human Rights Committee in its List of Issues is a constructive clear agenda for legal reforms and amendment exercises, as well as focus for ongoing academic research and analyses to inform these legislative efforts.

 


Note: Where applicable, quotations from the National Security Law reflect HRIC’s suggested alternate translation rather than the existing “official” English translation. (See Annex A: Updated HRIC annotated bilingual chart of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region with highlights of translation issues and suggested translation changes.)

 

1.  Introduction


Authorized by the Decision of the National People’s Congress (NPC) of the People’s Republic of China (PRC) on May 28, 2020,[1] the Standing Committee of the National People’s Congress (NPCSC) drafted and then on June 30, 2020 unanimously passed the sweeping Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law or NSL).[2] Passed with an “unprecedented level of secrecy and haste[3] without any transparency and public consultation, the NSL prohibits acts of secession, subversion, terrorism, and collusion with foreign forces[4] and creates a set of new implementing entities, all effectively under the control of the Central People’s Government (CPG).

The controversial law went into effect at 11:00 p.m. that night, when it was gazetted by the Hong Kong Special Administrative Region (HKSAR) government, marking the first time the people of Hong Kong saw the text. The NSL was promulgated against the background of widespread condemnation from the international community and fears among the Hong Kong people that it would violate the “one country, two systems” principle, the “high degree of autonomy” enshrined in Hong Kong’s constitution, the Basic Law, and, perhaps most importantly, the fundamental rights and freedoms for Hong Kong’s people that China is obligated to protect under international law and treaties, and the rule of law in Hong Kong.

Despite the law’s expansive scope and immediate and widely-felt impact so far, we believe there is still space for constructively pressing back against the encroachments on fundamental rights and the erosion of Hong Kong’s autonomy and the independence of its institutions. This legal brief:

  • reviews the implementation of the National Security Law since its promulgation;
  • provides an overview of the key entities established by the law and highlights related governance and accountability concerns;
  • outlines an international human rights framework as a foundation for monitoring, assessing, and promoting compliance by the central and HKSAR governments; and
  • offers concrete suggestions for further engagement by diverse stakeholders.

We also present in Annex A, an updated annotated bilingual chart of the NSL (we issued the original annotated chart on July 5). Although an English version was released by Xinhua News Agency on July 1, 2020, which was then gazetted by the HKSAR government on July 3—that “official” English translation is not a legally authoritative version. The lack of a legally authoritative English version of the NSL presents a fundamental obstacle to meaningfully understanding the law for non-Chinese speaking/fluent lawyers, judges, journalists, and Hong Kong residents, as well as for the universe of foreign persons, organizations, and others outside the territory of China who are potentially impacted by the NSL.

In the updated chart, we have reviewed the existing English translation against the Chinese source text and noted errors and omissions and inserted suggested replacement translation which we consider to be more accurate. We hope our updated annotation will serve as a useful tool for any English reader who would like or need to read the National Security Law closely and accurately. We welcome comments and suggestions. (Please send your comments to communications@hrichina.org, with “NSL translation” in the subject line.)

2.  Implementation of the National Security Law to Date


Despite the ongoing assault on rights, and complex structural and conceptual tensions and conflicts embedded in the NSL, the pronouncement of the “death” of Hong Kong and the rule of law remains a premature conclusion. In addition to the survival of the institutional and normative safeguards inherent in Hong Kong’s judicial and legal systems, the people of Hong Kong have remained resilient against all odds. And it remains the obligation of the central and HKSAR governments to ensure that international human rights standards are effectively and meaningfully implemented both formally and in actual practice by the key actors empowered to carry out key roles set out in the NSL. The NSL, together with the global impacts of the COVID-19 pandemic, has also shifted the geopolitical landscape, resulting in greater political will for collective action to address the threats posed to the rights and freedoms protected by international law.

Significantly, and as repeatedly pointed out by the CPG and HKSAR authorities, the NSL also specifically includes provisions that require the HKSAR to “respect and guarantee human rights,” including “freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law . . . and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong” (Art. 4), and to adhere to the rule of law (Art. 5). The Hong Kong Bill of Rights Ordinance (Cap. 383)[5] incorporates the ICCPR into Hong Kong domestic law.[6]

Despite targeting of peaceful exercise of fundamental rights, yet still—people persist

The chief target of the NSL was made immediately clear after its passage on June 30. On the following day, July 1, the day of the annual pro-democracy march in Hong Kong, which the police had banned for the first time since 1997 (citing public health risks amid the coronavirus pandemic), thousands who took to the streets defying the ban encountered a new police warning flag, “the purple flag,” which announced:

This is a police warning. You are displaying flags or banners/chanting slogans, or conducting yourselves with an intent such as secession or subversion, which may constitute offences under the ‘HKSAR National Security Law.’ You may be arrested or prosecuted.[7]

Of the 370 people arrested by the police that day, ten were arrested under the NSL, on suspicion of secession for displaying or possessing signs or other items with political slogans.[8] Within the chilled local climate, any expression or opinion that does not toe the officially mandated line now risks criminal prosecution or at the very least, threats, harassment, and warnings.[9] Yet, the CPG and HKSAR authorities have repeatedly insisted that the NSL would target “only a small number of people.” Leaving aside the issue that violations of rights are violations of rights no matter how many people are targeted, the NSL’s main impact so far is not criminal prosecutions but a climate of self-censorship and fear (both in Hong Kong as well as abroad) that the law has created with the threat of criminal sanctions and actions by the authorities.

With alarming speed in the months since July, and often invoking the necessity of COVID-19 health measures, the central and HKSAR governments have, largely through proclamation, moved to curtail or disavow many of the rights and institutional safeguards that have made Hong Kong a free society with a rule of law. The authorities have:

  • banned the singing of the Hong Kong protest anthem, “Glory to Hong Kong”;
  • suspended elections of the Legislative Council (LegCo) by one year;
  • targeted independent media, including the arrest of media tycoon and democracy supporter Jimmy Lai, and narrowed the definition of “media representatives”[10] and access to government press briefings;[11]
  • pulled books from public libraries, particularly books by pro-democracy figures;[12] and
  • accused teachers of “inappropriately” addressing an expanding list of prohibited sensitive topics, including June Fourth, the social protest movement in 2019, localism, and self-determination.

These ongoing actions by the authorities have directly impacted the peaceful exercise of rights, including freedom of expression, the right to peaceful assembly, the right to participate, access to information, and the independence of the media, and academic freedom. The Hong Kong Bar Association (HKBA) has also raised serious doubts about the legal and evidential basis of the Hong Kong government’s decision, citing public health risks, to postpone the LegCo election by one year instead of a shorter period, and without consulting civil society. Their statement highlights that “international human rights experts have repeatedly warned that governments must not use COVID-19 as a pretext to suppress human rights.”[13] Pro-democracy figures, including LegCo member Ted Hui,[14] Joshua Wong, Agnes Chow, and others also report being followed by unidentified persons and vehicles.

Yet despite these restrictions and intimidation, Hong Kong people continue to sing “Glory to Hong Kong,” including at recent gatherings.[15] Pro-democracy lawmakers engaged a public consultation exercise on whether they should continue to serve in the government extended LegCo term.[16] After the police denied a permit for a march, hundreds of people still assembled on October 1, National Day of the PRC, and this following a warning the day before by Luo Huining, Director of the Liaison Office of the Central People's Government in Hong Kong (LOCPG), that patriotism is a duty, not a choice. [17]

Regarding the widely-feared exercise of CPG authorities assuming jurisdiction, the first group of individuals detained outside Hong Kong since the NSL came into effect was not charged under the NSL, but under mainland criminal offences. After detaining 12 Hong Kong individuals aboard a speedboat in Chinese waters attempting to flee to Taiwan on August 23,[18] the Chinese authorities held them, aged 16 to 33, for more than a month until officially arresting them on September 30: ten under suspicion of making illegal border crossings, and two of helping others to escape Hong Kong.[19] That Chinese authorities stopped short of invoking Article 55 jurisdiction may reflect a recognition of the complex legal, procedural, and institutional issues such jurisdiction will inevitably present and that they are not yet prepared to address.

The Law creates an architecture of direct and indirect Central Government supervision, monitoring, and control of national security in Hong Kong—and jurisdictional tensions

In addition to the overt assault on fundamental rights and freedoms, the people of Hong Kong are also facing comprehensive social control under a Beijing-installed national security architecture established under the NSL. The NSL establishes four new government entities in Hong Kong and a corresponding new structure of oversight and accountability that allow Beijing to assert direct and indirect control over all national security matters—from policy to investigation to prosecution and adjudication—in Hong Kong. Shrouded in secrecy, the work of these entities ranges from formulating national security policies for Hong Kong to intelligence-gathering to case investigation to prosecution.

Overview of entities, functions, and structure

The four entities are (see Annex B for an overview of the background of appointed personnel of these four entities):

  • The Committee for Safeguarding National Security (CSNS) (Arts. 12-15, 43)

    The CSNS, with “primary responsibility for safeguarding national security” in Hong Kong (Art. 12), is essentially the executive and policy arm of Beijing’s national security enterprise in Hong Kong. The Committee is chaired by Hong Kong Chief Executive Carrie Lam and composed of top-level HKSAR government officials (Art. 13). Its National Security Advisor, “designated by the Central People’s Government” (Art. 15), is Luo Huining, Director of the Liaison Office of the Central People's Government in Hong Kong (LOCPG), Beijing’s top official in Hong Kong.
     

  • The Office for Safeguarding National Security (OSNS) (Arts. 48-60)

    The OSNS, staffed entirely by personnel sent from Beijing (Art. 48, para. 2) and directly funded by the CPG (Art. 51), is the entity with the most expansive on-the-ground roles, including in the following areas:
     

    • operation and coordination: collecting intelligence and handling cases (Art. 49), and coordinating actions and information sharing among all Hong Kong national security authorities (Art. 53, para. 2)
    • oversight: overseeing, in conjunction with the CSNS, Hong Kong’s national security work (Art. 53, para. 1)
    • policy: providing input into major strategies and policies (Art. 49 (1))
    • cooperation with key Beijing representative bodies in Hong Kong: works with the LOCPG, Office of the Commissioner Office of Commissioner of the Ministry of Foreign Affairs in Hong Kong, and the HK Garrison of the People’s Liberation Army (Art. 52)

The OSNS is also a part of a tripartite authority—along with the Office of the Commissioner of the MFA in Hong Kong and the Hong Kong SAR government—empowered to “take necessary measures to strengthen the management” of all foreign government missions, INGOs, and foreign NGOs and news operations in Hong Kong (Art. 54).

Perhaps the most controversial function of the OSNS is its power to assert jurisdiction over cases under three circumstances: a “complex” case involving “a foreign country or overseas forces,” “a serious situation” where the HKSAR government is unable to enforce the NSL, and “a situation of actual major and imminent threat to national security” (Art. 55).

When the OSNS asserts jurisdiction over a case, PRC criminal procedure law and other related national laws shall apply to the procedural matters, and the case will be prosecuted by a prosecuting body designated by the Supreme People’s Procuratorate and tried by a court designated by the Supreme People’s Court (Art. 56).

  • The Department for Safeguarding National Security of the Hong Kong Police Force (DSNS) (Arts. 16, 17)

Led by and staffed with Hong Kong Police Force (HKPF) personnel, the DSNS is tasked with both national security-related law enforcement duties centered on criminal investigation and intelligence-gathering and “anti-interference investigation” (Art. 17). It is mandated to undertake tasks “assigned” by the CSNS (Art. 17 (5)) and accept its supervision (Art. 43, para. 2). The head of DSNS is appointed by the Chief Executive after seeking “the opinion” of the OSNS (Art. 16, para. 2).

The NSL also authorizes the DSNS to “recruit qualified specialists and technical personnel” from outside Hong Kong for assistance (Art. 16, para. 3), opening up room for PRC agents to undertake law enforcement duties.

  • The Specialised National Security Crimes Prosecution Division of the Department of Justice (SPD) (Art. 18)

The SPD is “responsible for the prosecution of offences endangering national security and other related legal work,” with prosecutors appointed by the Secretary of Justice “after obtaining the consent” of the CSNS. The head of the SPD is appointed by the Chief Executive after seeking “the opinion” of the OSNS.

Concerns presented by the command, oversight, and accountability structure

Beijing-led authorities with direct and indirect control over all national security matters in Hong Kong undermine Hong Kong’s constitutionally guaranteed “high degree of autonomy”

  • The CSNS and OSNS—the top two national security authorities in Hong Kong, which jointly oversee, guide, and support all the national security work in Hong Kong—answer directly to Beijing:
  • CSNS is “under the supervision of and accountable to the Central People’s Government.” (Art. 12)
  • OSNS staff are “subject to the supervision of the national supervisory authorities.” (Art. 50)
  • The OSNS has the power to shape both the DSNS and the SPD, since the Law requires the Chief Executive to seek OSNS’s opinion before appointing the respective heads.
  • Required to perform tasks assigned by the CSNS and accept its supervision, the DSNS answers not to the HKPF but to the CSNS.

The NSL provisions putting the CSNS and OSNS above Hong Kong law raise related questions

The OSNS is entirely staffed by mainland agents sent to Hong Kong who are empowered to assert jurisdiction over cases for handling by the mainland Chinese judicial system. Various provisions of the Law also raise concerns regarding whether the new entities and their staff are subject to Hong Kong law or jurisdiction in light of unclear and conflicting provisions. Article 50 states that the staff of the OSNS are subject to the supervision of national supervisory bodies and shall “abide by the laws of the HKSAR as well as national laws.” (Emphasis added.)

However, the NSL also states that “. . . acts performed in the course of duty [by the OSNS] shall not be subject to the jurisdiction” of the HKSAR (Art. 60, para 1); and a holder of an OSNS identification document and articles used by the holder “shall not be subject to inspection, search or detention” by Hong Kong law enforcement officers (Art. 60, para. 2). But what are the parameters of “course of duty”? If the holders of OSNS identification documents and articles, including vehicles used, are not subject to inspection, search or detention, what are the safeguards for ensuring that the OSNS “does not infringe on the lawful rights and interests of any individual or organization” as required by Article 50?

The CSNS’s work is also not subject to interference by any “institution, organization or individual” in the HKSAR or public disclosure; and its decisions “shall not be subject to judicial review” (Art. 14, para. 2). What are the safeguards for ensuring that the CSNS’s work is incompliance with the Basic Law and other HKSAR laws? Although the CSNS is technically established by the HKSAR government, it is also directly under the supervision of and accountable to the CPG (Art. 12). Article 22 of the Basic Law prohibits interference in the affairs of HKSAR by departments of the CPG and states that all offices set up by departments of the CPG “shall abide by the laws of the Region.”[20] Can it be argued that the OSNS is a de facto “department” of the CPG and therefore its staff are subject to Hong Kong law?

 

3.  Implementation Challenges: Taking Rights Seriously


Centering an international human rights framework

As our description above of the implementing entities created under the NSL highlights, the Law contains within itself the inevitable tensions between a Leninist legal system that constitutionalizes the dominance of a one-party state,[21] and Hong Kong’s legal system with its developed common law jurisprudence and independent judiciary. These structural and ideological tensions are exacerbated by the Law’s vague and overbroad definitions of national security crimes, expansive extraterritorial jurisdiction, and lack of clarity on its appropriate application and on its relationship to other HKSAR and national laws and relevant international law.

Like the pilot of a plane who has rushed to take off without fully checking fuel or completing other essential preparations, the CPG has prioritized perceived existential security threats at the risk of failing to address the inevitable and complex legal, structural, and governance challenges the Law has created. To address these tensions and to ensure that the implementation of the NSL does not impermissibly restrict or undermine rights protected under HKSAR, national, and international law, international human rights standards and norms must serve as the foundation for monitoring, assessing impact, developing effective safeguards, informing needed legislative reforms, and ensuring a safe and enabling environment for civil society.[22]

Human rights standards and norms are set out in international human rights instruments which consist of treaties, covenants, declarations, guidelines, recommendations, and principles. This well-developed and evolving body of standards and norms is applied by states, civil society, and United Nations independent experts and human rights mechanisms to monitor, assess, and promote compliance by governments. Core documents include the Universal Declaration of Human Rights (UDHR),[23] the International Covenant on Civil and Political Rights (ICCPR),[24] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[25] International human rights principles also clearly state that a “free, open, safe and secure Internet” as well as the access it gives to information are critical forindividuals to make well-informed decisions and to mobilize people to call for justice, equality, accountability and better respect for human rights.”[26] (Emphasis added.) The Vienna Declaration and Programme of Action[27] reaffirmed that rights are “universal” (emphasis added), and that “democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.”

As the world grapples with the most serious global pandemic since the last century, international experts and UN human rights bodies[28] have especially highlighted the importance of respect for human rights across the spectrum, including economic, social, and cultural rights, and civil and political rights, as fundamental to the success of public health response and recovery from the pandemic. The UN General Assembly has emphasized that “States need to ensure that all human rights are respected, protected and fulfilled while combating the pandemic and that their responses to the COVID-19 pandemic respect and are in full compliance with their obligations under international law, including international humanitarian law and international human rights law, while emphasizing that all human rights are universal, indivisible, interrelated, interdependent, and mutually reinforcing.”[29]

Michelle Bachelet, UN High Commissioner for Human Rights, also recently warned: With COVID-19, a fast-moving and global health crisis has collided with many slower, and more entrenched, political, social and economic crises around the world. Those multiple underlying fractures, which have made us more vulnerable to this virus – and create entry points for its harms – result primarily from political processes that exclude people’s voices, as well as gaps in human rights protection.”[30] (Emphasis added.)

The NSL and international human rightson the books and in practice

Two key rights-related NSL provisions[31] are relevant and significant for their inclusion in a national law:

Article 4:
“The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.”

Article 5:
“The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under the law.”

“A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in the legal process that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be guaranteed. No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings.” (Emphases added.)

Both provisions technically read as incorporating international standards and referencing protected rights that also include international standards for permissible limitations on rights.

Article 29 of the UDHR states that any restrictions on these rights and freedoms are subject “only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”[32] (Emphases added.)

However, international human rights treaty obligations of states include undertaking legislative or other measures to give effect to the rights recognized, including the right to an effective remedy and to have claims determined by competent, judicial, administrative, or legislative authorities.[33] So, in order to comply with international standards and obligations, the central and HKSAR governments must ensure not only rights protections on paper, but also take effective measures to respect and protect those rights guarantees. On its face and in practice as implemented, the NSL must comply with applicable international standards, including the principles of legality, necessity, and proportionality that govern the permissibility of any reasonable restrictions on rights as well as with the HKSAR’s international obligations. The provisions of any security law must also adhere to international standards and norms on national security legislation, including the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.[34]

Yet, faced with domestic and international criticisms of the impact of the NSL on rights and rule of law in Hong Kong, CPG and HKSAR authorities invariably counter that “every country has national security laws” and accuse critics of double standards, politicizing human rights, and interference with domestic affairs.[35] These assertions echo the central government’s official narrative advanced internationally in its exercise of huayuquan (discourse power), in particular, as part of a campaign to challenge universal values and principles to marginalize the accountability of states.[36]

And the authorities point to Article 4 of the NSL to assert that human rights are respected and protected, and to Article 5 as reassurance that the rule of law will be adhered to. The naked citing of black letter law without more concrete implementation measures conflates formal law on the books with actual implementation progress, and does not meaningfully address whether the Law’s substantive provisions and their implementation comply in practice with international human rights standards and the obligations of the central and the HKSAR governments under national, local, and international law.

The Basic Law of the HKSAR[37] and the Hong Kong Bill of Rights Ordinance (BORO), (Cap. 383)[38] domestically enact the ICCPR as applied to Hong Kong. While the People’s Republic of China signed the ICCPR on October 5, 1998, and has not yet ratified the treaty (despite repeated statements of its intention to do so),[39] it is obligated under international law to not take any actions that would defeat the object and purpose of the treaty.[40] However, the incorporation of the ICCPR in Article 4 of the NSL, a national law (as applied to Hong Kong SAR), means that mainland prosecutors and judges designated to handle Article 55 cases, in accordance with mainland criminal procedure law, would also need to apply ICCPR standards. This also leaves open questions regarding the role of the developed body of common law and Hong Kong jurisprudence on rights.

While this poses complex jurisprudential challenges, the incorporation of the ICCPR in the NSL, may signal a potentially significant opportunity to expand international human rights law training for mainland judges and prosecutors to promote effective implementation of the NSL in conformity with international standards and the obligations of the central and HKSAR governments.

Ongoing structural, policy, and rights-related enforcement issues

Seven UN special procedures mandate-holders specifically recognize the positive inclusion of the ICCPR and ICESCR in the NSL. In a recent legal communication to China, they also outline their concerns with the technical provisions of the law and highlight vague and overbroad provisions and the lack of transparency and accountability of the new NSL security entities. They urge the central government to review and reconsider the NSL to ensure China’s compliance with international human rights obligations in respect of Hong Kong under the UDHR, ICCPR, the 1984 Sino-British Joint Declaration, and the Basic Law.[41]

As international human rights standards establish and UN experts underscore, the most effective approach to responding to national security risks, including terrorist threats[42] is to address the root causes and fully respect and protect human rights. During its periodic reviews of the HKSAR government’s implementation of ICCPR obligations, the UN Human Rights Committee has consistently raised its concerns regarding the lack of meaningful progress in ensuring genuine universal suffrage and the right to participate in public affairs and to stand and run for election.[43]

In the lead up to the passage of the NSL, the introduction of an extradition bill by the Hong Kong administration in 2019[44] that would have exposed Hong Kong people to a mainland legal system lacking an independent judiciary and robust due process protections triggered mass social protests.[45] The intransigent refusal of the administration to address these concerns and the subsequent actions of the HKPF expanded the initial demand to withdraw the extradition bill to include broader demands for democratic reforms and police accountability for its excessive use of force.[46] The mass mobilizations of increasingly diverse sectors of Hong Kong society to support the five demands[47] of the 2019 protests and calls for independence by some groups apparently exacerbated the fears of Beijing of the threats that Hong Kong posed to its two national security imperatives—maintaining territorial integrity and the political leadership and ideological dominance of the Communist Party of China. The NSL clearly reflects these security concerns and targets actions perceived to bring about those national security threats.

In this context, we outline select ongoing structural, policy, and rights-related enforcement issues below:

Requirements of and allowance for secrecy undermine transparency, accountability, and good governance

As recognized by domestic and international law, there are legitimate reasons for protecting confidentiality of information or procedures in certain cases, for example, in court proceedings involving juveniles under Hong Kong law, or to protect personal information, trade or commercial secrets (Art. 63). However, NSL provisions requiring safeguarding of secrets raise specific concerns related to due process, transparency of NSL implementation, and accountability of the key actors.

  • Under Article 47, the HKSAR courts must obtain a binding certificate from the Chief Executive certifying whether the alleged criminal act involves national security or whether the evidence involves state secrets.
  • The new entities described above are directly supervised by and report to the CPG in the absence of any safeguards or measures for protection of rights, and are shielded from review of their actions by courts or by any independent authority.[48]
  • The heads of the DOJ’s Special National Security Crimes Prosecution Division (Art. 18), HKPF’s Department for Safeguarding National Security (Art. 16)[49] are required to swear to abide by the law and safeguard secrets.
  • Article 41 states that the media and the public shall be prohibited from attending all or part of a trial involving state secrets or public order.
  • Under Article 63, law enforcement and judicial authorities and their staff, and defense counsel or legal representatives are required to keep confidential state secrets (in addition to trade or personal information) which they come to know during the process of handling the cases.

The frontline of enforcement is carried out by the HKPF exercising unrestricted and arbitrary discretion.

In addition to courts deciding NSL cases that remain within the jurisdiction of Hong Kong courts (i.e., other than Article 55 cases), the HKPF is the key frontline actor in the enforcement of the NSL.

Article 43 of the NSL authorizes the Chief Executive of the HKSAR, in conjunction with the Committee for Safeguarding National Security of the HKSAR, to make relevant implementation rules for the purpose of applying the measures under Article 43.[50] The Implementation Rules (IR43), issued July 6 and effective on July 7, set out in detail the procedural requirements, conditions for approval and so forth when implementing those measures to ensure that the officers are achieving the objectives of the law while complying with the NSL requirements to respect and protect rights in accordance with law.

However, in light of the Law’s requirement to safeguard secrets and the centralized chain of command headed by the CPG, IR43 appears to only serve to enable and legalize the HKPF’s exercise of arbitrary discretion, as highlighted by an ongoing pattern of police conduct in repression of peaceful exercise of rights.[51] IR43 also references a number of other local HKSAR laws.[52]  Aside from very different promulgation contexts, these other Hong Kong laws referenced need rigorous examination as they serve different legislative objectives, target different problems, and their implementation provisions appear in some cases to conflict with NSL provisions, e.g., the rank of police officer required for approvals of certain actions and measures, and clarity regarding how the cited laws related to the overall NSL.

Protection of rights of young people[53]

Young people are the key to Hong Kong’s future. Failure as a society to effectively engage and protect them constructively will contribute to the further demoralization of a generation of young people—those who leave and those who stay—a factor that will negatively impact the future of Hong Kong. As was powerfully demonstrated during the Occupy Central Movement and the 2019 social protests, young people were at both frontlines as well as the general participants and supporters of the protest demands. They are also quietly still struggling to find ways to continue working to protect and defend Hong Kong’s values and way of life.

Beginning with the first day following the promulgation of the National Security Law[54] and continuing to the present, many young people, some as young as 12, were arrested, harassed, intimidated, and subjected to physical violence at the hands of the police. On July 29, four former members of Studentlocalism[55], aged 16-21, were arrested on suspicion of secession.[56] On August 23, 12 were arrested at sea, aged 16-33, and have been deprived access to lawyers.[57] On August 31, among the at least 12 individuals arrested was a 17-year-old boy who police said claimed to be a reporter.[58] During the arrests on September 5, a 12-year-old girl was seen in a viral video being pinned down by a riot police officer using his knee in an effort to subdue her.[59] She and her brother were later fined for violating social-distancing rules.

The implementation to date of the NSL raises serious concerns regarding compliance with international standards on juveniles, rights of the child, and minors in detention. In its Concluding observations on the combined third and fourth periodic reports of China, the Committee on the Rights of the Child raised several concerns including the lack of general legislation providing for the best interests of the child, and the need to appropriately integrate and consistently apply this standard in all legislative, administrative, and judicial proceedings. The Committee also recommended that the HKSAR raise the minimum age of criminal responsibility to an internationally acceptable level. [60]

4.  Openings and Recommendations: “Landing the Plane”


The May 2020 NPC Decision[61] authorized the NPCSC to rush through a national security law to address what Beijing perceived as two national security threats that Hong Kong poses to China: threat to China’s territorial integrity posed by emerging secessionist advocacy; and the use of Hong Kong as a base to endanger China’s national security, defined broadly as using Hong Kong to carry out infiltration and sabotage activities against the mainland.[62] With over 100 days since the passage of the NSL on June 30, it is questionable whether these threats have been addressed effectively or if implementation of the NSL is in compliance with international standards. Yet, CPG and HKSAR officials claim that stability and public order have been restored to Hong Kong. But repression and chilling of peaceful exercise of rights and intimidation of all sectors of society cannot be mistaken for stability and public order.

Despite the draconian actions of the HKPF and hardline public order rhetoric, the good news is that there is still space that Hong Kong people are leveraging to press back against the rights-restricting impacts of the implementation of the NSL. In addition to ongoing creative individual gestures of resistance, such as reading the Apple Daily newspaper (viewed by the authorities as an opposition paper) in public and expressions of support for individuals arrested, important discussion and debates are also being convened. Hong Kong lawyers and academics, in particular, have responded to the NSL by focusing technically on the law and applicable international human rights standards, developing practical analyses on the implementation of the NSL that will contribute to robust legal defense of future cases.

Several universities, institutions of higher learning, and independent think tanks have also conducted various webinars and workshops on a wide range of topics relevant to the NSL, such as academic freedom, freedom of press, policy engagement strategies, international diplomacy, and comparative analyses, for example, with Singapore’s Internal Security Act. In the spirit of contributing constructively to addressing the human rights challenges, we identify some recommendations aimed at various stakeholders.

Recommendations for further engagement by diverse stakeholders

In addition to the important international efforts to address the rights problems posed by the NSL, including public statements, national legislation, and the creation of safe harbors and other options for individuals who must leave or choose to leave Hong Kong, the international community must develop concrete approaches to support the diverse sectors of Hong Kong society, including young people’s efforts to grapple with the rights restrictions under the NSL.

Recommendations for the central and HKSAR governments

  • Issue a corrected and legally authoritative English translation of the NSL, please

The NSL still does not have a legally authoritative English language version. For non-Chinese reading Hong Kong residents, members of the bar, or anyone who can be impacted by the Law’s assertion of its comprehensive and broad scope, including extraterritorial reach, the first priority is to understand accurately what the Law prescribes. The central and HKSAR authorities should issue a corrected English translation of the Law and designate it as a legally authoritative version.

  • Strengthen cooperation with UN human rights mechanisms through concrete steps
  • Issue standing invitations to visit to the High Commissioner for Human Rights and special procedures

Invitations for missions as well as standing invitations have long been requested by the UN High Commissioner of Human Rights and independent UN special procedures mandate-holders, a constructive engagement step supported by many member states and civil society. China should allow “immediate, meaningful and unfettered access” of UN independent observers and special procedures mandates-holders.[63] In the absence of the appointment of a fully independent oversight mechanism, there should at least be a process of independent monitoring and engagement. Additionally, the central and HKSAR governments need to actively engage with the relevant UN treaty bodies and organs at all levels.[64] In doing so, one of the most pressing tasks is to address the multifold legal and compliance concerns raised by the UN independent experts in their joint communication of September 1.[65]

  • Take concrete steps to implement outstanding recommendations of UN treaty bodies and experts

UN treaty bodies have urged the central government, as a state party to all the major human rights treaties,[66] and the HKSAR government to implement recommendations in relation to the promotion and protection of various human rights.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty juvenile justice system is to uphold the rights and safety and promote the physical and mental well-being of juveniles.[67] The age of criminality in the Hong Kong legal system is ten.[68] The UN Committee on the Rights of the Child recommended that the Hong Kong government reform relevant local laws and r.[69]

The Hong Kong government should review and reform relevant local laws and implement this recommendation.

  • Convene inclusive and diverse public consultation and input into the HKSAR’s responses to the Human Rights Committee List of Issues

The UN Human Rights Committee issued its List of Issues in relation to the next Committee review of the HKSAR’s progress in implementing the ICCPR as set forth in the HKSAR’s fourth periodic report. To ensure that the responses prepared by the HKSAR reflect the concerns and input of Hong Kong civil society, the HKSAR government should take steps to not only ensure but maximize inclusive and diverse public participation and input.

The Human Rights Committee specifically identified issues related to laws on national security, anti-sedition, and anti-terrorism, and requested clarification of the state of emergency and laws on national security, anti-sedition, and anti-terrorism[70] including information regarding:

  • the relationship between the Covenant and the National Security Law adopted on June 30, 2020;
  • measures in place or envisaged to ensure that the application and enforcement of the Law are not contrary to the provisions of the Covenant;
  • procedural and legislative measures envisaged to enforce NSL Articles 56 and 57;
  • the scope of the NSL application, including its extraterritorial application;
  • the meaning of the phrase “collusion with a foreign country or with external elements to endanger national security” provided for in NSL Article 29;
  • the powers and immunities given under the NSL to the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and the accountability mechanisms overseeing these bodies; and
  • information on any amendments made or envisaged to the laws of Hong Kong, China, in accordance with the National Security Law.
  • Accept technical assistance offered by UN experts

Since 2019, various UN special procedures have issued statements of concern regarding the rights situation in Hong Kong, including most recently on September 1, 2020. They have also advanced offers and/or suggestions on technical advice and assistance including on matters in relation to national security, criminal, and counter-terrorism legislation. Notably, all the recommended measures in relation to technical advice and assistance include the appointment of a fully independent reviewer or at least putting in place a process of independent review and revision.[71] The UN High Commissioner for Human Rights has also underscored one of her priorities is to provide technical assistance to states.

  • The People’s Republic of China should ratify the ICCPR

In light of the incorporation of the ICCPR in the NSL, a national law, China should formally ratify the ICCPR.

Ratification of the ICCPR is one of the key recommendations advanced in human rights dialogues, by human rights mechanisms, special procedures, and by civil society groups.on the enjoyment of all human rights by older persons, Ms. Rosa Kornfeld-Matte, reiterated after her country visit to China, that China is encouraged to ratify all human rights treaties to which it is not yet party to, especially the ICCPR. This echoes the sentiment of many other independent experts who have written on China or visited China on various human rights issues.[73]

Recommendation for legislators, courts and policymakers

  • Take on the dual-edged sword of vagueness

As has been extensively focused upon by legal experts and commentators, the NSL suffers from overbroad or vaguely-defined crimes, and lacks clarity regarding the interface between the NSL, other HKSAR laws, and other national laws. Vague provisions in the NSL present the risk of the exercise of arbitrary discretion and restrictions on rights, but they should also be treated as an opportunity to define, clarify, and cabin the exercise of discretion and decision-making by the different actors.

Many academics recognize the steep normative and structural challenges that the NSL’s vagueness poses to the effective promotion and protection of human rights. At the same time, they also continue to engage the difficult but necessary task of identifying possible space for reforming or amending the law, as well as judicial interpretation and other tools to address the serious risks of arbitrary and discriminatory exercise of discretion and decision-making, especially by the frontline enforcement actor, the HKPF, and to limit the overbroad or conflicting provisions, including the application of common law jurisprudence.

In this regard, the specific issues raised by the Human Rights Committee in its List of Issues would be a constructive clear agenda for legal reforms and amendment exercises, as well as a focus for ongoing academic research and analyses to inform these legislative efforts.

Conclusion: What’s at Stake

It is now just a few months since the passing of the NSL. To put any predictions about the future of Hong Kong in context, we need to recall the seismic changes that have occurred in the mainland, Hong Kong, and the world just over the past several years. Domestically, there has been an intensified centralization of state and Party power under Xi Jinping and expanded comprehensive social and ideological control over all sectors in Chinese society. Globally, China has intensified its efforts to remake the existing international normative order; two major economic powers have been engaged in a trade war with consequences of global magnitude; and the entire world is gripped by the COVID-19 pandemic and a climate crisis that no one can escape from, while facing threats posed by the rise of authoritarianism, nationalism, and xenophobic populism. Few in the beginning of this decade—or back in 1997—could have predicted where we are now.

Throughout this period, Hong Kong people have seen the intensification of social problems, including economic inequality, an affordable housing crisis, environment sustainability, and now sharp policy debates regarding Hong Kong’s youth and education policy. Still, despite steady encroachment by Beijing on Hong Kong’s autonomy, Hong Kong has remained the only place in China with a diverse independent civil society that organized and participated in massive public assemblies and annual rallies, including to commemorate June Fourth—until this year.

What is at stake ultimately for Hong Kong people is a rights-respecting future in a Hong Kong governed by the rule of law, which also has significant impacts on mainland China. As Professor Johannes Chan suggests, the best contribution Hong Kong can make to the social, economic, and political development of China is to retain Hong Kong’s differences and uphold its core values.[74] There is now another 27 years left of the projected fifty-year period during which Hong Kong’s autonomy, core values, and way of life should be protected under the 1984 Joint Declaration and the Basic Law. Who can predict what the future holds?

Beyond the headlines proclaiming Hong Kong’s demise and the end of the rule of law and so forth, Hong Kong people may be demoralized as the NSL implementation rolls out, but they have not given up. With shifting national interest fault-lines and a global health pandemic delivering a wakeup call for the international community, there are encouraging signs of greater political will to collectively address the human rights challenges on the mainland and in Hong Kong.

In addition to the important international efforts to address the rights problems posed by the NSL, including public statements, national legislation, and the creation of safe harbors and other options for individuals who must or choose to leave Hong Kong, the international community must develop concrete approaches to support the diverse sectors of Hong Kong society, in particular the young people as they grapple with a severely restricted climate. They need solidarity and concrete and spirit support from the international community as they continue to struggle to shape the future(s) of Hong Kong.

It is indeed too soon to concede that future.

 

[1] The Decision authorizes the NPC Standing Committee (NPCSC) to draft the legislation, to be added directly into Annex III of the Basic Law—which contains a list of national laws relating to defense and foreign affairs that are applicable to Hong Kong. In effect, the Decision prescribes a legislative process that will bypass the HKSAR’s own legislative process. 全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定 (Quanguo renmindaibiao dahui guanyu jianli jianquan xianggang tebie xingzhengqu weihu guojia anquan de falv zhidu he zhixing jizhi de jueding, Decision of the National People’s Congress on establishing and completing the Hong Kong Special Administrative Region’s legal system and implementing mechanisms for protecting national security), 13th National People’s Congress of the People’s Republic of China, 3rd Session (May 28, 2020). Available at: http://www.xinhuanet.com/politics/2020-05/28/c_1126046490.htm.

[2] Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (2020). Available at: https://www.elegislation.gov.hk/hk/A406.

[3] Hualing Fu, “National Security Law: Challenges and Prospects,” in Johannes Chan and C.L. Lim, eds., Law of the Hong Kong Constitution, 3rd edition, Sweet & Maxwell Asia Ltd, forthcoming in 2021.

[4] For the key offences, there is no requirement of violence or use of force, which distinguishes the NSL from both Macau’s National Security Law and Hong Kong’s 2003 Draft National Security Bill, which required use of force and major unlawful means. Hualing Fu, “National Security Law: Challenges and Prospects,” in Johannes Chan and C.L. Lim, eds., Law of the Hong Kong Constitution, 3rd edition, Sweet & Maxwell Asia Ltd, forthcoming in 2021.

[5] Hong Kong Bill of Rights Ordinance (Cap. 383) (1991): EN, CH.

[6] The Hong Kong Bill of Rights Ordinance was enacted in June 1991, prior to hand-over, but remains effective post 1997.

[7] South China Morning Post Video, “New purple flag warning protesters about breaking national security law used by Hong Kong police.” July 1, 2020. Available at: https://www.scmp.com/video/hong-kong/3091340/new-purple-flag-warning-protesters-about-breaking-national-security-law.

[8] See databases maintained by Kong Tsung-gan tracking the total number of protesters arrested and prosecuted since August 2019, with the names and brief information of those arrested. Updated frequently. Available at: Arrests and trials of Hong Kong protesters.

[9] On July 3, the spokesperson for the High Commissioner for Human Rights stated: “[w]e are alarmed that arrests are already made under the [NSL] . . . when there is not full information and understanding of the scope of the offences." Among the concerns expressed are the vague and overly broad definition of the offenses which “may lead to discriminatory or arbitrary interpretation and enforcement”; and the “collusion” offense which “may lead to a restriction of civic space and of the possibility for civil society actors to exercise their right to participate in public affairs.” United Nations Human Rights Office of the High Commissioner, Press briefing note on China / Hong Kong SAR by Spokesperson for the UN High Commissioner for Human Rights on the National Security Law Rupert Colville, July 3, 2020. Available at: ENCH.

[10] Channel News Asia, “Hong Kong press body says new police media rules could limit scrutiny.” September 24, 2020. Available at: https://www.channelnewsasia.com/news/asia/hong-kong-press-body-says-new-police-media-rules-could-limit-scrutiny-13141422.

[11] Leung, Christy, and Cheung, Tony, “Hong Kong police limit access to press briefings to news outlets recognised by government, sparking concern and criticism from media groups.” South China Morning Post, September 22, 2020. Available at: https://www.scmp.com/news/hong-kong/law-and-crime/article/3102527/who-qualifies-media-hong-kong-police-revising,. In response to the increasingly restrictive environment, foreign media and business have also moved some of their operations out of Hong Kong, e.g., the NYT moved its digital news section to Seoul, South Korean tech firm Naver Corp moved its servers in Hong Kong to Singapore to protect user data. Mercator Institute for China Studies, “Transforming Hong Kong: 100 days of the National Security Law.” October 7, 2020.

[12] Westbrook, Laura, “National security law: Hong Kong libraries pull books by some localist and democracy activists for review.” South China Morning Post, July 4, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3091842/national-security-law-hong-libraries-pull-books-some.

[14] Ted Hui was struck by a car in Kennedy Town, Hong Kong, on August 14, 2020 by the same vehicle that had been following him for days. According to Hui, when the police arrived they did not search the vehicle or ask the driver to step out. The Hong Kong police force said that the men were journalists and that the driver passed a breath test, though it was not confirmed which media outlet the journalists are from. Grundy, Tom, “Video: Hong Kong democrat Ted Hui tackled by police after confronting vehicle he said was following him.” Hong Kong Free Press, August 15, 2020. Available at: https://hongkongfp.com/2020/08/15/video-hong-kong-democrat-ted-hui-tackled-by-police-after-confronting-vehicle-he-said-was-following-him/.. A widely circulated video on social media shows the police failing to search the vehicle or speak with the driver, but instead clearing the crowd gathering so that the vehicle could drive away.

[15] Teenage boy played popular protest tunes on a recorder at a crowded intersection as some demonstrators sang along. Ramzy, Austin, Yu, Elaine, and May, Tiffany, “On China’s National Day, Hong Kong Police Quash Protests.” The New York Times. October 1, 2020. Available at: https://www.nytimes.com/2020/10/01/world/asia/hong-kong-protests-china.html; Ho, Kelly, “Protest anthem ‘Glory to Hong Kong’ will survive despite tough new security law and ban in schools, composer says.” Hong Kong Free Press, September 19, 2020. Available at: https://hongkongfp.com/2020/09/19/protest-anthem-glory-to-hong-kong-will-survive-despite-tough-new-security-law-and-ban-in-schools-composer-says/; Mullany, Gerry, “Hong Kong Bans Protest Song and Other Political Expression at Schools.” The New York Times, July 8, 2020. Available at: https://www.nytimes.com/2020/07/08/world/asia/hong-kong-students-protests-china.html. Sadly, Oliver Ma, who was arrested twice for singing protest anthem on street, has stopped performing. Coconuts Hong Kong.,“Arrested twice and facing a dubious weapons charge, ‘Glory to Hong Kong’ busker says he’s stopped performing.” Coconuts Hong Kong, September 10, 2020. Available at: https://coconuts.co/hongkong/news/arrested-twice-weapons-charge-glory-hong-kong-busker-oliver-ma-stopped-performing/.

[16] When Carrie Lam postponed the LegCo election due to COVID-19 and Beijing extended the current LegCo term for a year, pro-democracy lawmakers were divided as to whether they should stay on to serve another term. Raymond Chan and Eddie Chu announced they would not serve out their extended terms, Tanya Chan quit politics for personal reasons, and the remaining 19 out of 22 democratic lawmakers decided to remain in the legislature. Cheung, Tony, Wong, Natalie, and Chung, Kimmy, “Hong Kong leader delays legislative elections, asks Beijing to resolve legal questions, citing coronavirus pandemic dangers.” South China Morning Post, July 31, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3095461/hong-kong-legislative-council-elections-be-postponed; Cheung, Tony, Cheung, Gary, and Chung, Kimmy, “Beijing extends Hong Kong’s Legislative Council term by ‘at least one year’ but kicks ball back to Carrie Lam to decide how disqualified lawmakers can continue their duties.” South China Morning Post, August 11, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3096895/chinas-top-legislative-body-passes-resolution-extending; Wong, Natalie, and Cheung, Tony, “Most of Hong Kong’s opposition lawmakers to serve out extended term in Legislative Council, after supporters narrowly back move in poll.” South China Morning Post, September 29, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3103434/hong-kong-opposition-poll-shows-supporters-narrowly-back.

[17] “As a Chinese person, being a patriot is never by choice. It is an obligation and it is the correct way.” Wong, Rachel, “Beijing’s Liaison Office Chief Luo Huining says security legislation ended unrest in Hong Kong,” Hong Kong Free Press, September 30, 2020. Available at: https://hongkongfp.com/2020/09/30/beijings-liaison-office-chief-luo-huining-says-security-legislation-has-ended-unrest/.

[18] Chung, Kimmy and Leung, Christy, “National security law: arrested Hong Kong activist among group caught by China’s coastguard while fleeing to Taiwan, sources confirm.” South China Morning Post, August 23, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3099094/national-security-law-arrested-hong-kong-activist-among.

[19] Wen, Gang, “Arrest of 12 HK fugitives approved by mainland authorities,” China Daily, October 4, 2020. Available at: https://www.chinadaily.com.cn/a/202010/04/WS5f79b276a31024ad0ba7d2b3.html. They have all been denied access to lawyers of their choice and family visits. Feng, Gao, and Man, Sing, “Hong Kong Detainees in China Denied Meetings With Defense Lawyers,” Radio Free Asia, September 7, 2020. Available at: https://www.rfa.org/english/news/china/hongkong-protest-09072020154801.html; Wong, Rachel, “Rights lawyer says China may have appointed ‘state lawyers’ to Hongkonger arrested whilst fleeing by boat,” Hong Kong Free Press, September 9, 2020. Available at: https://hongkongfp.com/2020/09/09/rights-lawyer-says-china-may-have-appointed-state-lawyers-to-hongkonger-arrested-whilst-fleeing-by-boat/. On October 9, media reports citing leaked document and flight records of Hong Kong’s Government Flying Service (GFS) suggest Hong Kong police’s involvement in the group’s capture.

[20] Article 22 of the Basic Law states that “[n]o department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.”

[21] For critical analyses of impact or the relationship of mainland criminal law and procedure law to the NSL HKSAR, see series of articles posted by long-time Chinese law expert, Professor Cohen, available at: Jerome A. Cohen’s blog.

[22] “International human rights law requires States and other duty bearers to create and support a safe and enabling environment that allows civil society to exercise fully the rights and freedoms that are indispensable for them to fulfil their essential role of bringing the voices of all parts of society to the table.” See: Para. 57 of the Report of the United Nations High Commissioner for Human Rights, “Procedures and practices in respect of civil society engagement with international and regional organizations,” April 18, 2018. Available at: https://undocs.org/A/HRC/38/18

[23] The Universal Declaration of Human Rights (UDHR) (1948). Available at: https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

[24] The ICCPR was adopted by the General Assembly in 1966 and entered into force in March 1976. Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[25] The ICESCR was adopted by the General Assembly in 1966 and entered into force in January 1976. Available at: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

[26] “The same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with article 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights.” Human Rights Council, “The Promotion, Protection and Enjoyment of Human Rights on the Internet” (A/HRC/38/L.10). July 2, 2018., Available at: http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_38_L10.docx. See also UN Human Rights Council, “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue,” (A/HRC/17/27).May 16, 2011. Available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G11/132/01/PDF/G1113201.pdf.

[27] Adopted by consensus at the World Conference, endorsed by the forty-eighth session of the General Assembly (resolution 48/121, of 1993). Available at: https://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf.

[28] Chairpersons, Ten UN Treaty Bodies, “UN Human Rights Treaty Bodies call for human rights approach in fighting COVID-19,” March 24, 2020. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E. The UN Human Rights Committee also issued a statement reminding states parties to the ICCPR that any derogations from the rights protected must be in compliance with their treaty obligations and with standards on derogations. See UN Human Rights Committee, “Statement on derogations from the Covenant in connection with the COVID-19 pandemic,” April 24, 2020, by clicking “Committee adopts statement on derogations from the Covenant in connection with the COVID-19 pandemic, 24 April 2020”. Available at: https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx.

[29] The omnibus Resolution was adopted by the General Assembly on September 11, 2020. Preamble of the General Assembly resolution A/74/L.92, “Comprehensive and coordinated response to the coronavirus disease (COVID-19) pandemic,” September 10, 2020. Available at: https://undocs.org/A/74/L.92. See also Statement by UN Special Procedures holder: “While we recognize the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind States that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory… The use of emergency powers must be publicly declared and should be notified to the relevant treaty bodies when fundamental rights including movement, family life and assembly are being significantly limited…Moreover, emergency declarations based on the Covid-19 outbreak should not be used as a basis to target particular groups, minorities, or individuals. It should not function as a cover for repressive action under the guise of protecting health nor should it be used to silence the work of human rights defenders. (Emphasis added). Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722&LangID=E March 16, 2020.

[30] Statement during Item 2 of the 45th session of the Human Rights Council on September 14, 2020. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26226.

[31] HRIC translations of NSL provisions are cited. Please see Appendix A for full annotations.

[32] The term “necessary in a democratic society” is explicitly cited in ICCPR in Article 14 (Right to a free trial), Article 22 (Freedom of Association), and Article 21 (Freedom of Assembly). Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. Although it is not explicitly mentioned in ICCPR Article 17 (Right to Privacy), the Special Rapporteur on the Right to Privacy has cogently argued that the same standard applies and any interference with the right to privacy must also be consistent with “the principles of legality, necessity and proportionality”, reflecting the terms used in the jurisprudence of the Human Rights Committee. See: Para. 17 of the Report of the Special Rapporteur on the Right to Privacy, (A/HRC/40/63)., October 16, 2019. Available at: https://undocs.org/A/HRC/40/63.

[33] See, e.g., Article 2, ICCPR (2), (3)(a)-(c). Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[34] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. (November, 1996). Available at: https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf.

[35] See for example PRC representative Geng Gai, at the Human Rights Council:“[n]ational security legislation is a common practice in all countries including those countries that accuse China. Isn’t it China’s right to legislate our own national security in its own land?” Statement during General Debate under Item 4, UN Human Rights Council 45th session, Geneva, September 28, 2020. See 35:40-35:50, available at http://webtv.un.org/meetings-events/human-rights-council/watch/item4-general-debate-contd-22nd-meeting-45th-regular-session-human-rights-council/6195218409001#player; Hong Kong Chief Executive Carrie Lam said in a video message to the UN Human Rights Council on June 30, 2020: “[f]or those foreign governments or politicians raising objection to the legislation, one could only lament the double standards they are adopting. All those countries which have pointed their fingers at China have their own national security legislation in place. We could think of no valid reason why China alone should be inhibited from enacting a national security legislation to protect every corner of its territory and all of its nationals.” Video message of Hong Kong Chief Executive Carrie Lam to UN Human Rights Council, June 30, 2020. See 00:28-00:55, available at https://www.scmp.com/video/china/3091249/carrie-lam-defends-national-security-law-speech-united-nations.

[36] See e.g., Nadege Rolland, "China’s Vision for a New World Order”, The National Bureau of Asian Research, January 2020. Available at: https://www.nbr.org/wp-content/uploads/pdfs/publications/sr83_chinasvision_jan2020.pdf. “The Chinese leadership’s efforts to increase China’s discourse power should not be dismissed or misconstrued as mere propaganda or empty slogans. Rather, they should be seen as evidence of the leadership’s determination to alter the norms that underpin existing institutions and put in place the building blocks of a new international system coveted by the Chinese Communist Party… The Chinese leadership’s critique of the existing international order reveals its unswerving objection to the values on which this order has been built.” (Emphasis added).

[37] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the Third Session of the Seventh National People’s Congress (April 4, 1990), Available at: https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf.

[38] Hong Kong Bill of Rights Ordinance (Cap. 383) (1991): EN, CH. https://www.elegislation.gov.hk/hk/cap383.

[39] In response to recommendations by UN member states, treaty bodies, and civil society groups, to ratify the ICCPR, including during all three of its UPRs, China has consistently responded that it will do so when the domestic conditions for its ratification are present. Available at: https://www.upr-info.org/en/review/China.

[40] Vienna Convention on the Law of Treaties, Art. 18(a): “[o]bligation not to defeat the object and Purpose of a treaty prior to its entry into force. A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty…until it shall have made its intention clear not to become a party to the treaty.”(Emphasis added).

[41] Seven UN experts’ communication to China urging review and reconsideration of National Security Law to comply with international law, September 1, 2020, Available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487; See also Human Rights in China, “UN Legal Experts Urge China to Review, Reconsider National Security Law to Comply with Its International Obligations,” September 6, 2020. Available at: https://www.hrichina.org/en/press-work/hric-law-bulletin/un-legal-experts-urge-china-review-reconsider-national-security-law.

[42] “… States should ensure that counter-terrorism legislation is limited to criminalizing terrorism conduct which is properly and precisely defined on the basis of the provisions of international counterterrorism instruments and is strictly guided by the principles of legality, necessity and proportionality. National legislation should be guided by the acts defined in the Suppression Conventions, the definition found in Security Council resolution 1566 (2004) and also by the Declaration on Measures to Eliminate International Terrorism and the Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism, which were approved by the General Assembly. The Security Council’s definition of a terrorist act requires intentionality to cause death or serious bodily harm and the act must be committed to provoke a state of terror. The model definition of terrorism advanced by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism provides clear guidance to States on appropriate conduct to be proscribed as best practice: the model definition’s three-pronged set of elements for the regulation of terrorism acts and its cumulative approach more broadly, function as a safety threshold to ensure that it is only conduct of a terrorist nature that is identified as terrorist conduct.” (Emphases added). Seven UN experts’ communication to China urging review and reconsideration of National Security Law to comply with international law, September 1, 2020. Available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487.

[43] Starting on September 26 and lasting 79 days until the police cleared all the sites by December 15, 2014, the Occupy Central movement—led by students and actively supported by the original OCLP leaders—grew into the largest-scale sustained citizen protest in Hong Kong history, drawing over 100,000 people at its height. This peaceful protest, later also called the Umbrella Movement for the signature yellow umbrellas protestors used to protect themselves from tear gas and other attacks by the police, drew wide attention and support from people around the world. South China Morning Post, “TIMELINE: How Occupy Central’s democracy push turned into an Umbrella Revolution.” October 9, 2014. Available at: https://www.scmp.com/news/hong-kong/article/1612900/timeline-how-occupy-centrals-democracy-push-turned-umbrella; BBC News, “Hong Kong protests: What is the ‘Umbrella Movement’?” September 28, 2019. Available at: https://www.bbc.co.uk/newsround/49862757.

[44] Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, was formally withdrawn by the government in October 2019. Available at: https://www.legco.gov.hk/yr18-19/english/bills/b201903291.pdf. See also, HKSAR government press release “CE announces withdrawal of Fugitive Offenders Bill among "four actions" to help society move forward.” September 4, 2019. Available at: https://www.info.gov.hk/gia/general/201909/04/P2019090400704.htm#:~:text=The%20Chief%20Executive%2C%20Mrs%20Carrie,withdraw%22%20the%20Fugitive%20Offenders%20Bill.&text=%22First%2C%20the%20Fugitive%20Offenders%20Bill,to%20fully%20allay%20public%20concerns.

[45] See a timeline of selected key protests and events in the Hong Kong protest movement from February 2018 to February 2020 compiled by writer, educator, and activist Kong Tsung-gan. Kong Tsung-gan, Medium. March 11, 2020. Available at: https://medium.com/@KongTsungGan/a-timeline-of-the-hong-kong-protests-1d13422ce006. See also two excellent books by Kong Tsung-gan, Umbrella: A Political Tale from Hong Kong,Pema Press, September 12, 2017; and As long as there is resistance there is hope: Essays on the Hong Kong freedom struggle on the post-Umbrella Movement era, 2014–2018,Pema Press, March 18, 2019.

[46] The widely discredited “fact-finding study” by the Independent Complaints Council (IPCC) (2020) aimed to provide a broader picture of the incidents related to the police use of force that generated large number of complaints. The 900 plus page report concluded there was no systemic problem with policy but room for improvement. Lum, Alvin, and Lok-kei, Sum, “Hong Kong protests: no systemic problem with policing, but room to improve, watchdog concludes”, South China Morning Post, May 15, 2020. Available at: https://www.scmp.com/news/hong-kong/law-and-crime/article/3084550/hong-k.... See also, Research Office, Legislative Council Secretariat, “Information Note: Policy on police use of force in public order events in selected places, IN14/19-20.” Available at: https://www.legco.gov.hk/research-publications/english/1920in14-policy-on-police-use-of-force-in-public-order-events-in-selected-places-20200713-e.pdf.

[47] The five demands: withdrawal of the extradition bill, an investigation into alleged police brutality and misconduct, the release of all the arrested, a retraction of the official characterisation of the protests as "riots", and the resignation of Carrie Lam as HKSAR Chief Executive.

[48] “Information relating to the work of the Committee [CSNS] shall not be subject to disclosure. Decisions made by the Committee shall not be subject to judicial review.” (Art. 15)

[49] “When assuming office, the head of the department for safeguarding national security of the Hong Kong Police Force shall . . . swear to abide by the law and to safeguard secrets.” (Art. 16, para. 2)

[50] Implementation Rules for Article 43 of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region , gazette July 6, effective July 7, 2020. Available at: https://www.info.gov.hk/gia/general/202007/06/P2020070600784.htm.

[51] As a prominent Chinese legal scholar also notes, “[h]istorically . . . a unified intelligence, security and police power was regarded as the trademark of totalitarian policing, often associated with the Gestapo or the KGB,” and expresses concern that such “fusion”… “presents a significant danger to Hong Kong’s rule of law-based criminal justice system.” Hualing Fu, “National Security Law: Challenges and Prospects,” in Johannes Chan and C.L. Lim, eds., Law of the Hong Kong Constitution, 3rd edition, Sweet & Maxwell Asia Ltd, forthcoming in 2021.

[52] The Firearms and Ammunition Ordinance (Cap. 238) (1981): EN, CH; Import and Export Ordinance (Cap. 60) (1972): EN, CH; Prevention of Bribery Ordinance (Cap. 201) (1971): EN, CH; Organized and Serious Crimes Ordinance (Cap. 455) (1994): EN, CH; and Societies Ordinance (Cap. 151) (1949): EN, CH.

[53] Under Hong Kong’s Juvenile Offenders Ordinance, a “child” is defined as anyone aged 13 or younger. A “young person” is aged 14 and 15, and anyone 16 years old and above is no longer considered a juvenile offender, and are tried in court same as adults. Young persons are entitled to same rights as adults when being detained by police, although there are a few differences. A child or young person should not be arrested or interviewed at school, and they must be accompanied by a parent or guardian when being detained or interviewed by police. Under Section 11 of the Juvenile Offenders Ordinance Ordinance, children aged between 10 to 13 cannot be sentenced to imprisonment. Young persons aged between 14 and 15 inclusive, cannot be sentenced to imprisonment if they can be “suitably dealt with in any other way”. Juvenile Offenders Ordinance (Cap. 226); EN, CH. See also: Lee, Joshua, "Can children be arrested and sentenced in court? A breakdown of how Hong Kong law deals with juvenile offenders.” South China Morning Post, May 3, 2018. Available at: https://www.scmp.com/yp/discover/lifestyle/features/article/3071859/can-children-be-arrested-and-sentenced-court.

[54] A 15-year-old student was arrested for carrying a “Hong Kong Independence” flag and is being investigated for secession under the national security law. On the same day, a 17-year-old student was allegedly found with one intact petrol bomb and two broken ones and two others, aged 16 and 17, were arrested for criminal damage. Lau, Chris, and Lo, Clifford, “National security law: at least five people under investigation for secession offences after Hong Kong protest, sources say.” South China Morning Post, July 2, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3091559/national-security-law-three-hong-kong-customs-officers.

[55] Kang-chung, Ng, “Who are Studentlocalism and are they a national security threat for Hong Kong?” South China Morning Post, July 31, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3095412/who-are-studentlocalism-and-are-they-really-national.

[56] Chan, Erin, “Police still holding four activists under new law.” The Standard, July 31, 2020. Available at: https://www.thestandard.com.hk/section-news/section/11/221458/Police-still-holding-four-activists-under-new-law.

[57] Aljazeera, “Hong Kong’s Lam says 12 arrested at sea ‘not democracy activists.’” September 14, 2020. Available at: https://www.aljazeera.com/news/2020/9/15/hong-kongs-lam-says-12-arrested-at-sea-not-democracy-activists; Ramzy, Austin, and Yu, Elaine, “Families of Hong Kong Activists Arrested at Sea Plead for Access to Lawyers.” The New York Times, September 12, 2020. Available at: https://www.nytimes.com/2020/09/12/world/asia/hong-kong-activists-china.html.

[58] Channel News Asia, “At least 12 arrested after protest in Mong Kok.” August 31, 2020. Available at: https://www.channelnewsasia.com/news/asia/hong-kong-police-arrested-protest-mong-kok-13069450.

[59] Siu, Phila, and Ho-him, Chan, “Hong Kong protests: at least 289 arrested as scattered groups heed online calls to rally on postponed election day.” South China Morning Post, September 6, 2020. Available at: https://www.scmp.com/news/hong-kong/politics/article/3100426/hong-kong-protests-small-groups-heed-online-calls-rally.

[60] Committee on the Rights of the Child, “Final Concluding Observations and recommendations, adopted by the Committee at its sixty-fourth session (16 September–4 October 2013): CRC/C/CHN/CO/3-4.” October 29, 2013. The Committee also invited the State party to submit its fifth and sixth periodic reports in one combined report by 31 March 2019.

[61] NPC Observer, “2020 NPC Session: NPC´s Decision on National Security in Hong Kong Explained (Updated),” May 28, 2020. Available at: https://npcobserver.com/2020/05/22/2020-npc-session-npcs-imminent-decision-on-national-security-in-hong-kong-explained/.

[62] Hualing Fu, “China’s Imperatives for National Security Legislation,” in Cora Chan and Fiona de Londras, eds., China's National Security: Endangering Hong Kong's Rule of Law?, Hart Publishing, March 2020.

[63] See also joint statement delivered by German Ambassador Christoph Heusgen on October 6, 2020, on behalf of 39 countries in the General Assembly Third Committee General Debate, expressing grave concerns about the human rights situation in Xinjiang and recent developments in Hong Kong. The joint statement called on China to uphold autonomy, rights and freedoms in Hong Kong, and to respect the independence of the Hong Kong judiciary and to allow “immediate, meaningful and unfettered” access to Xinjiang for independent observers including the UN High Commission for Human Rights and her Office, and relevant special procedure mandate holders to urgently implement CERD’s eight recommendations related to Xinjiang, including by refraining from the arbitrary detention of Uyghurs and members of other minorities. See: Permanent Mission of the Federal Republic of Germany to the United Nations, “Statement by Ambassador Christoph Heusgen on behalf of 39 Countries in the Third Committee General Debate.” October 6, 2020. Available at: https://new-york-un.diplo.de/un-en/news-corner/201006-heusgen-china/2402648.

[64] The UN High Commissioner of the Human Rights, Michelle Bachelet, has reportedly been encouraging Hong Kong authorities to monitor closely the enforcement of the National Security Law and to take necessary steps to review it. See Reuters, “U.N. rights chief discussing visit to Xinjiang with China.” September 14, 2020. Available at: https://www.reuters.com/article/us-un-rights-china-idUSKBN2651D6.

[65] Seven UN experts’ communication to China urging review and reconsideration of National Security Law to comply with international law, September 1, 2020. Available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487.

[66] As pointed out in this brief, while China has not yet ratified the ICCPR which it signed on October 5, 1998, as a signatory, it has an obligation under the Vienna Convention on the Law of Treaties, Art 18(a), to refrain from acts which would defeat the object and purpose of the treaty.

[67] A juvenile is defined as every person under the age of 18, the age limit below which it should not be permitted to deprive a child of his or her liberty should be determined by law. Imprisonment should be used as a last resort. United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by General Assembly resolution 45/113 of 14 December 1990. Available at: https://www.un.org/ruleoflaw/blog/document/united-nations-rules-for-the-protection-of-juveniles-deprived-of-their-liberty/. Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by General Assembly resolution 45/113 of 14 December 1990. Available at: https://www.un.org/ruleoflaw/blog/document/united-nations-rules-for-the-protection-of-juveniles-deprived-of-their-liberty/.

[68] The Hong Kong Criminal Procedure Ordinance states that courts cannot sentence a young person from age 16 to 20 to imprisonment unless “the court is of opinion that no other method of dealing with such person is appropriate.” This does not apply to “excepted offences,” which include serious crimes like manslaughter, robbery, and indecent assault.

Criminal Procedure Ordinance (Cap. 221) (1899), available at: EN; CH.

[69] Committee on the Rights of the Child, “Final Concluding Observations and recommendations, adopted by the Committee at its sixty-fourth session (16 September–4 October 2013): CRC/C/CHN/CO/3-4.” October 29, 2013. The Committee also invited the State party to submit its fifth and sixth periodic reports in one combined report by 31 March 2019.

[70] UN Human Rights Committee, “List of issues in relation to the fourth periodic report of Hong Kong, China (Advance unedited version): CCPR/C/CHN-HKG/Q/4”, August 6, 2020. Available at: https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/HKG/CCPR_C_CHN-HKG_Q_4_42807_E.pdf.

[71] See for example: Recommendation for the “appointment of a fully independent reviewer of the application, operation, and compliance of the law with international human rights obligations as a recommended best practice by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms. We remain open and willing to provide technical advice and assistance to the establishment and operation of such a body.” (Page 11, UN Special Procedures Joint Statement to China dated September 1); Recommendation “to tighten and ensure that the definition of terrorism contained in national law is appropriately narrow and tailored, and that use of counterterrorism law and practice is in conformity with international human rights standards, and strictly contained to those specifically violent acts that constitute terrorism under international law. We offer technical assistance to this purpose and affirm our goal to engage positively with your Government.” (Page 18, UN Special Procedures Joint Statement to China dated November 1, 2019) ( Emphases added.) Seven UN experts’ communication to China urging review and reconsideration of National Security Law to comply with international law, September 1, 2020. Available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25487.

[72] See China’s 2013 UPR. Human Rights in China, “UN Treaty Bodies and China”. Available at: https://www.hrichina.org/en/un-treaty-bodies-and-china.

[73] UN General Assembly, “Report of the Independent Expert on the enjoyment of all human rights by older persons: A/HRC/45/14/Add.1,” UN Human Rights Council 45th session, August 7, 2020. Available at: https://undocs.org/A/HRC/45/14/Add.1.

[74] Johannes Chan, “Maintaining Institutional Strength: the Court, the Act of State and the Rule of Law.” In Cora Chan and Fiona de Londras, eds., China's National Security: Endangering Hong Kong's Rule of Law?, Hart Publishing, March 2020.

 

Annex A: Updated HRIC annotated bilingual chart of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region with highlights of translation issues and suggested translation changes

Key to notations and changes

  • Grey highlight and bolding have been applied to the terms with translation issues.
  • In Column 2 of the chart (the English translation column), strikethrough has been applied to word(s) in the original official translation for which HRIC suggests alternate translation. HRIC’s suggested alternate translations along with Chinese source text appear inside square brackets.
  • Word(s) added by HRIC are indicated by an asterisk (*) preceding the added word(s) inside square brackets.
  • All emphases (in italics) in the English translation have been added by HRIC.
  • A typographical error in Article 24 of the Chinese source text is indicated: [].

 

HRIC’s suggested translation changes highlight the importance of the accuracy of the text of a law. Technical language accuracy is critical to the accurate understanding of the scope of prohibited activities and the criminal liability. Under international standards and under common law interpretation norms, rights-restricting laws, should be construed narrowly and in the least restrictive manner possible, so as to enable the appropriate exercise of rights. In addition, our suggested language revision is aimed at conveying more accurately the ideological and political tone in several key provisions of the Chinese text, which is not reflected in the official English translation—as a key objective of the NSL, a Chinese law, is to assert control over perceived threats to the ideological and political dominance of the Communist Party of China over Hong Kong.

Below are some examples of HRIC’s suggested translation changes—with strikethrough on the original translation we suggest replacing, followed by our suggested translation change and Chinese source text inside square brackets—that illustrate the issues of scope and ideological and political overtone:

  • From Article 1: “. . . preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements [overseas forces 境外勢力] to endanger national security . . . .”

    Note: “External elements” can be read as a neutral term, but the Chinese phrase 境外勢力—“overseas forces”—is global in nature and connotes hostility. It is a phrase that is commonly used by the Chinese authorities to refer to foreign governments and civil society organizations critical of China.

  • From Article 5, para. 2: “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings [the legal process 訴訟] that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected [guaranteed 保障].”

    Note: The official English translation of 訴訟 as “judicial proceedings” is a narrow rendering of the source text, whereas the Chinese term is more expansive and should be translated as “the legal process” to convey more accurately that rights are not limited to court proceedings.

  • Article 6: “It is the common responsibility of all the people of China, including the people of Hong Kong [compatriots 同胞], to safeguard the sovereignty, unification and territorial integrity of the People’ s Republic of China.”

    Note: The official English translation, “the people of Hong Kong,” omitted the lineage and jurisdictional claim and the ideological overtone in the source text, 同胞, “compatriots.” The literal meaning of 同胞 is “those born of the same parents.” “Compatriots” is a term commonly used by the United Front Work Department of the Communist Party of China to refer to people in Hong Kong, Macau, and Taiwan.

  • From Article 21: “A person who incites, assists in, abets [counsels 教唆] or provides pecuniary or other financial assistance or pecuniary property for the commission by other persons of the offence under Article 20 of this Law shall be guilty of an offence.”

    Note: The English word “abet” means “encourage, support, aide, or approve” a wrongdoing; the original Chinese term, 教唆, means “counsel, urge, advise” and is broader than the more narrow act of abetting a prohibited act.

HRIC welcomes comments and suggestions. Please send by email to communications@hrichina.org, with “NSL translation” in the subject line.

 

中華人民共和國香港特別行政區維護國家安全法

The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region

 

发布机构: 全国人民代表大会常务委员会
发布日期:2020 年6月30日
生效日期:2020 年6月30日 

中国人权于2020年10月14日登陆该网页

Promulgating entity: Standing Committee of the National People’s Congress
Date of promulgation: June 30, 2020
Date of legal effect: June 30, 2020

HRIC visited this page on October 14, 2020

 

目錄

第一章        總則

第二章     香港特別行政區維護國家安全的職責和機構
第一節     職責
第二節     機構

第三章     罪行和處罰
第一節     分裂國家罪
第二節     顛覆國家政權罪
第三節     恐怖活動罪
第四節     勾結外國或者境外勢力危害國家安全罪
第五節     其他處罰規定
第六節     效力範圍

第四章     案件管轄、法律適用和程序

第五章     中央人民政府駐香港特別行政區維護國家安全機構

第六章     附則

Contents

Chapter I      General Principles

Chapter II     The Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security
Part 1     Duties
Part 2     Government Bodies 

Chapter III   Offences and Penalties
Part 1     Secession
Part 2     Subversion
Part 3     Terrorist Activities
Part 4     Collusion with a Foreign Country or with External Elements [overseas forces 境外勢力] to Endanger National Security
Part 5     Other Provisions on Penalty
Part 6     Scope of Application

Chapter IV   Jurisdiction, Applicable Law and Procedure

Chapter V    Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region 

Chapter VI   Supplementary Provisions

HRIC summary/annotation

Editors’ note: The summary below follows, where applicable, HRIC’s suggested translation change(s) rather than the published official translation.

第一章       總則

Chapter I
General Principles

 

第一條

為堅定不移並全面準確貫徹“一國兩制”、“港人治港”、高度自治的方針,維護國家安全,防範、制止和懲治與香港特別行政區有關的分裂國家、顛覆國家政權、組織實施恐怖活動和勾結外國或者境外勢力危害國家安全等犯罪,保持香港特別行政區的繁榮和穩定,保障香港特別行政區居民的合法權益,根據中華人民共和國憲法、中華人民共和國香港特別行政區基本法和全國人民代表大會關於建立健全香港特別行政區維護國家安全的法律制度和執行機制的決定,制定本法。

Article 1

This Law is enacted, in accordance with the Constitution of the People’s Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, and the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region, for the purpose of[1]:

  • ensuring the resolute, full and faithful [correct 準確] implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;
  • safeguarding national security;
  • preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements [overseas forces 境外勢力] to endanger national security in relation to the Hong Kong Special Administrative Region;
  • maintaining prosperity and stability of the Hong Kong Special Administrative Region; and
  • protecting [guaranteeing 保障] the lawful rights and interests of the residents of the Hong Kong Special Administrative Region.

Authority for the Law: PRC Constitution, HKSAR Basic Law, and NPCSC Decision.

 

Legislative purposes:

  • implementation of One Country, Two Systems under which people of Hong Kong administer Hong Kong with a high degree of autonomy;
  • safeguarding national security;
  • preventing, suppressing, and imposing punishment for secession, subversion, organisation, and perpetration of terrorist activities, and collusion with a foreign country or overseas forces;
  • maintaining prosperity and stability of HKSAR; and
  • protecting lawful rights and interests of HKSAR residents.

第二條

關於香港特別行政區法律地位的香港特別行政區基本法第一條*和第十二條規定是香港特別行政區基本法的根本性條款。香港特別行政區任何機構、組織和個人行使權利和自由,不得違背香港特別行政區基本法第一條和第十二條的規定。

Article 2

The provisions in Articles 1 and 12 of the Basic Law of the Hong Kong Special Administrative Region on the legal status of the Hong Kong Special Administrative Region are the fundamental provisions in the Basic Law. No institution, organisation or individual in the Region shall contravene these provisions in exercising their rights and freedoms.

No contravening of fundamental Basic Law Articles: Art. 1 (HKSAR is inalienable part of PRC) and Art. 12 (HKSAR shall enjoy a high degree of autonomy directly under the Central People's Government (CPG)).

第三條

中央人民政府對香港特別行政區有關的國家安全事務負有根本責任。

Article 3

The Central People’ s Government has an overarching [a fundamental 根本] responsibility for national security affairs relating to the Hong Kong Special Administrative Region.

Responsibilities and duties of CPG and HKSAR govt:

  • CPG has fundamental responsibility for national security affairs.
  • HKSAR govt has constitutional duty to safeguard national security.
  • Executive, legislative, and judicial organs of HKSAR shall effectively prevent, suppress, and impose punishment.

香港特別行政區負有維護國家安全的憲制責任,應當履行維護國家安全的職責

It is the [constitutional 憲制] duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty [duties and responsibilities 職責] accordingly.

香港特別行政區行政機關立法機關、司法機關應當依據本法和其他有關法律規定有效防範、制止和懲治危害國家安全的行為和活動。

The executive authorities, legislature and judiciary [legislative, and judicial organs 立法機關、司法機關] of the Region shall effectively prevent, suppress [prohibit 制止] and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.

第四條

香港特別行政區維護國家安全應當尊重和保障人權,依法保護香港特別行政區居民根據香港特別行政區基本法和《公民權利和政治權利國際公約》、《經濟、社會與文化權利的國際公約》適用於香港的有關規定享有的包括言論、新聞、出版的自由,結社、集會、遊行、示威的自由在內的權利和自由。

Article 4

Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region. [In safeguarding national security, the Hong Kong Special Administrative Region shall respect and guarantee human rights 香港特別行政區維護國家安全應當尊重和保障人權]. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.

Human rights and freedoms shall be respected and protected, including those under Basic Law, ICCPR, and ICESCR:

  • freedoms of speech, the press, publication, association, assembly, procession, and demonstration.

第五條

防範、制止和懲治危害國家安全犯罪,應當堅持法治原則。法律規定為犯罪行為的,依照法律定罪處刑;法律沒有規定為犯罪行為的,不得定罪處刑。

Article 5

The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under the law.

Rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security.

任何人未經司法機關判罪之前均假定無罪。保障犯罪嫌疑人、被告人和其他訴訟參與人依法享有的辯護權和其他訴訟權利。任何人已經司法程序被最終確定有罪或者宣告無罪的,不得就同一行為再予審判或者懲罰。

A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings [the legal process 訴訟] that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected [guaranteed 保障]. No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings.

Presumption of innocence until convicted.

Defence rights of criminal suspects/defendants shall be guaranteed.

No double jeopardy.

第六條

維護國家主權、統一和領土完整是包括香港同胞在內的全中國人民的共同義務。

Article 6

It is the common responsibility of all the people of China, including the people of Hong Kong [compatriots 同胞], to safeguard the sovereignty, unification and territorial integrity of the People’ s Republic of China.

Safeguarding sovereignty, unification, and territorial integrity of PRC is common responsibility of people of China, including of Hong Kong compatriots.

Scope of prohibition: behavior and activities by any institution, organisation, or individual in HKSAR. 

Written confirmation or loyalty oath to uphold Basic Law is required for standing for election or assuming office.

在香港特別行政區的任何機構、組織和個人都應當遵守本法和香港特別行政區有關維護國家安全的其他法律,不得從事危害國家安全的行為和活動。

Any institution, organisation or individual in the Hong Kong Special Administrative Region shall abide by this Law and the laws of the Region in relation to the safeguarding of national security, and shall not engage in any act or activity which endangers national security.

香港特別行政區居民在參選或者就任公職時應當依法簽署文件確認或者宣誓擁護中華人民共和國香港特別行政區基本法,效忠中華人民共和國香港特別行政區。

A resident of the Region who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China in accordance with the law.

第二章  香港特別行政區維護國家安全的職責和機構

Chapter II
The Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security

 

第一節  職責

Part 1 Duties

 

第七條

香港特別行政區應當儘早完成香港特別行政區基本法規定的維護國家安全立法,完善相關法律。

Article 7

The Hong Kong Special Administrative Region shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region and shall refine [improve 完善] relevant laws.

HKSAR shall complete national security legislation and improve relevant laws.

第八條

香港特別行政區執法、司法機關應當切實執行本法和香港特別行政區現行法律有關防範、制止和懲治危害國家安全行為和活動的規定,有效維護國家安全。

Article 8

In order to safeguard national security effectively, the law enforcement and judicial authorities of the Hong Kong Special Administrative Region shall fully enforce this Law and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security.

HK law enforcement and judicial authorities shall fully enforce this Law and related HKSAR national security laws.

第九條

香港特別行政區應當加強維護國家安全和防範恐怖活動的工作。對學校、社會團體、媒體、網絡等涉及國家安全的事宜,香港特別行政區政府應當採取必要措施,加強宣傳、指導、監督和管理

Article 9

The Hong Kong Special Administrative Region shall strengthen its work on safeguarding national security and prevention of terrorist activities. The Government of the Hong Kong Special Administrative Region shall take necessary measures to strengthen public communication, guidance, supervision and regulation [management 管理] over matters concerning national security, including those relating to schools, universities, social organisations, the media, and the internet.

HKSAR shall:

  • strengthen work on safeguarding national security and prevention of terrorist activities;
  • strengthen public communication guidance, supervision and management over national security matters in relation to schools, universities, social organizations, the media, and the Internet.

NOTE: The Chinese source text states “schools” but not “universities.”

第十條

香港特別行政區應當通過學校、社會團體、媒體、網絡等開展國家安全教育,提高香港特別行政區居民的國家安全意識和守法意識。

Article 10

The Hong Kong Special Administrative Region shall promote [carry out 開展] national security education in schools and universities and through social organisations, the media, the internet and other means to raise the awareness of Hong Kong residents of national security and of the obligation to abide by the law.

HKSAR shall carry out national security education in schools, universities, social organizations, and media, and on the Internet to raise awareness of national security and obligations.

NOTE: The Chinese source text states “schools” but not “universities.”

第十一條

香港特別行政區行政長官應當就香港特別行政區維護國家安全事務向中央人民政府負責,並就香港特別行政區履行維護國家安全職責的情況提交年度報告。

Article 11

The Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People’ s Government for affairs relating to safeguarding national security in the Hong Kong Special Administrative Region and shall submit an annual report on the performance of duties [*and responsibilities 職責] of the Region in safeguarding national security.

HKSAR Chief Executive (CE) shall be accountable to CPG and submit an annual report and report on specific matters as requested.

如中央人民政府提出要求,行政長官應當就維護國家安全特定事項及時提交報告。

The Chief Executive shall, at the request of the Central People’s Government, submit in a timely manner a report on specific matters relating to safeguarding national security.

 

第二節   機構

Part 2 Government Bodies

 

第十二條

香港特別行政區設立維護國家安全委員會,負責香港特別行政區維護國家安全事務,承擔維護國家安全的主要責任,並接受中央人民政府的監督和問責。

Article 12

The Hong Kong Special Administrative Region shall establish the Committee for Safeguarding National Security. The Committee shall be responsible for affairs relating to and assume primary responsibility for safeguarding national security in the Region. It shall be under the supervision of and accountable to the Central People’ s Government.

HKSAR shall establish Committee for Safeguarding National Security (CSNS), with primary responsibility for safeguarding national security, under supervision of and accountable to CPG.

第十三條

香港特別行政區維護國家安全委員會由行政長官擔任主席,成員包括政務司長、財政司長、律政司長、保安局局長、警務處處長、本法第十六條規定的警務處維護國家安全部門的負責人、入境事務處處長、海關關長和行政長官辦公室主任。

Article 13

The Chief Executive shall be the chairperson of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region. The other members of the Committee shall be [include 包括] the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive’ s Office.

CSNS chair: CE
CSNS members:

  • Chief Secretary for Administration
  • Financial Secretary
  • Secretary for Justice
  • Secretary for Security
  • Commissioner of Police
  • Head of Dept for safeguarding national security of the HKPF established under Art. 16
  • Director of Immigration
  • Commissioner of Customs and Excise
  • Director of CE Office

香港特別行政區維護國家安全委員會下設秘書處,由秘書長領導。秘書長由行政長官提名,報中央人民政府任命。

A secretariat headed by a Secretary-General shall be established under the Committee. The Secretary-General shall be appointed by the Central People’s Government upon nomination by the Chief Executive.

Head of CSNS Secretariat: Secretary-General appointed by CPG, nominated by CE.

第十四條

香港特別行政區維護國家安全委員會的職責為:

Article 14

The duties and functions [responsibilities 職責] of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be:

 

  1. 分析研判香港特別行政區維護國家安全形勢規劃有關工作,制定香港特別行政區維護國家安全政策;
  2. 推進香港特別行政區維護國家安全的法律制度和執行機制建設
  3. 協調香港特別行政區維護國家安全的重點工作和重大行動
  1. analysing and assessing developments [situations 形勢] in relation to safeguarding national security in the Hong Kong Special Administrative Region, making work plans [planning related work 規劃有關工作], and formulating policies for safeguarding national security in the Region;
  2. advancing the development [construction 建設] of the legal system and enforcement mechanisms of the Region for safeguarding national security; and
  3. coordinating major [significant 重點] work and significant [major 重大] operations for safeguarding national security in the Region.

Duties and responsibilities of CSNS:

  1. analyse and assess situations, plan related work, formulate policies;
  2. advance construction of HKSAR’s legal system and enforcement mechanisms; and
  3. coordinate significant work and major operations in HKSAR.

香港特別行政區維護國家安全委員會的工作不受香港特別行政區任何其他機構、組織和個人的干涉,工作信息不予公開。香港特別行政區維護國家安全委員會作出的決定不受司法覆核

No institution, organisation or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable [subject 不受] to judicial review.

No institution, organisation or individual in HKSAR shall interfere with work of CSNS.

Work of CSNS not subject to disclosure.

Decisions of CSNS not subject to judicial review.

第十五條

香港特別行政區維護國家安全委員會設立國家安全事務顧問,由中央人民政府指派,就香港特別行政區維護國家安全委員會履行職責相關事務提供意見。國家安全事務顧問列席香港特別行政區維護國家安全委員會會議。

Article 15

The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall have a National Security Adviser, who shall be designated by the Central People’ s Government and provide advice on matters relating to the [*performance of 履行] duties and functions [responsibilities ] of the Committee. The National Security Adviser shall sit in on [attend 列席] meetings of the Committee.

National Security Adviser to be designated by CPG shall advise CSNS on matters related to its duties and responsibilities.

第十六條

香港特別行政區政府警務處設立維護國家安全的部門,配備執法力量

Article 16

The Police Force of the Hong Kong Special Administrative Region shall establish a department for safeguarding national security with law enforcement capacity [power].

Hong Kong Police Force (HKPF) to establish dept for safeguarding national security (HKPF DSNS).

警務處維護國家安全部門負責人由行政長官任命,行政長官任命前須書面徵求本法第四十八條規定的機構的意見。警務處維護國家安全部門負責人在就職時應當宣誓擁護中華人民共和國香港特別行政區基本法,效忠中華人民共和國香港特別行政區,遵守法律,保守秘密

 

The head of the department for safeguarding national security of the Hong Kong Police Force shall be appointed by the Chief Executive. The Chief Executive shall seek in writing the opinion of the Office established under Article 48 of this Law before making the appointment. When assuming office, the head of the department for safeguarding national security of the Hong Kong Police Force shall swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and swear to abide by the law and to observe the obligation of secrecy [safeguard secrets 保守秘密].

Head of HKPF DSNS shall be appointed by CE based on opinion of the Office to be established under Art. 48.

Head of HKPF DSNS shall swear:

  • to uphold Basic Law;
  • allegiance to HKSAR;
  • to abide by law; and
  • to safeguard secrets.

警務處維護國家安全部門可以從香港特別行政區以外聘請合格的專門人員和技術人員,協助執行維護國家安全相關任務。

The department for safeguarding national security of the Hong Kong Police Force may recruit qualified professionals [specialists 專門人員] and technical personnel from outside the Hong Kong Special Administrative Region to provide assistance in the performance of [*related 相關] duties for safeguarding national security.

DSNS may recruit specialists and technical personnel from outside HKSAR for assistance.

第十七條

警務處維護國家安全部門的職責為:

Article 17

The duties and functions [responsibilities ] of the department for safeguarding national security of the Hong Kong Police Force shall be:

 

  1. 收集分析涉及國家安全的情報信息;
  2. 部署、協調、推進維護國家安全的措施和行動;
  3. 調查危害國家安全犯罪案件
  4. 進行反干預調查和開展國家安全審查;
  5. 承辦香港特別行政區維護國家安全委員會交辦的維護國家安全工作;
  6. 執行本法所需的其他職責。

collecting and analysing intelligence and information concerning national security;

planning [deploying 部署], coordinating and enforcing [driving forward 推進] measures and operations for safeguarding national security;

investigating offences [cases of offences 犯罪案件] endangering national security;

conducting counter-interference [anti-interference 反干預] investigation and national security review;

carrying out [undertaking 承辦] tasks of safeguarding national security assigned by the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region; and

performing other duties and functions [responsibilities ] necessary for the enforcement of this Law.

Duties and responsibilities of HKPF DSNS:

  1. collect and analyse intelligence;
  2. deploy, coordinate, and drive forward measures and operations;
  3. investigate cases of offences;
  4. conduct anti-interference investigation and national security review;
  5. undertake tasks assigned by CSNS; and
  6. perform other duties and responsibilities necessary for the enforcement of this Law.

第十八條

香港特別行政區律政司設立專門的國家安全犯罪案件檢控部門,負責危害國家安全犯罪案件的檢控工作和其他相關法律事務。該部門檢控官由律政司長徵得香港特別行政區維護國家安全委員會同意後任命。

Article 18

The Department of Justice of the Hong Kong Special Administrative Region shall establish a specialised [*national security crimes 國家安全犯罪案件] prosecution division responsible for the prosecution of offences endangering national security and other related legal work. The prosecutors of this division shall be appointed by the Secretary for Justice after obtaining the consent of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region.

HKSAR Dept of Justice shall establish specialised national security crimes prosecution division (DOJ SPD).

DOJ SPD prosecutors shall be appointed by Secretary for Justice after consent of CSNS.

律政司國家安全犯罪案件檢控部門負責人由行政長官任命,行政長官任命前須書面徵求本法第四十八條規定的機構的意見。律政司國家安全犯罪案件檢控部門負責人在就職時應當宣誓擁護中華人民共和國香港特別行政區基本法,效忠中華人民共和國香港特別行政區,遵守法律,保守秘密

The head of the specialised [*national security crimes 國家安全犯罪案件] prosecution division of the Department of Justice shall be appointed by the Chief Executive, who shall seek in writing the opinion of the Office established under Article 48 of this Law before making the appointment. When assuming office, the head of the specialised [*national security crimes 國家安全犯罪案件] prosecution division shall swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, and swear to abide by the law and to observe the obligation of secrecy [safeguard secrets 保守秘密].

Head of DOJ SPD shall be appointed by CE, based on opinion of the Office established under Art. 48.

Head of DOJ SPD shall swear:

  • to uphold Basic Law;
  • allegiance to HKSAR;
  • to abide by law; and
  • to observe obligation of secrecy.

第十九條

經行政長官批准,香港特別行政區政府財政司長應當從政府一般收入中撥出專門款項支付關於維護國家安全的開支並核准所涉及的人員編制,不受香港特別行政區現行有關法律規定的限制。財政司長須每年就該款項的控制和管理向立法會提交報告。

 

Article 19

The Financial Secretary of the Hong Kong Special Administrative Region shall, upon approval of the Chief Executive, appropriate from the general revenue a special fund to meet the expenditure for safeguarding national security and approve the establishment of relevant posts, which are not subject to any restrictions in the relevant provisions of the laws in force in the Region. The Financial Secretary shall submit an annual report on the control and management of the fund for this purpose to the Legislative Council of the Hong Kong Special Administrative Region.

Financial Secretary shall, upon CE approval, appropriate a special fund from general revenue for expenditures for safeguarding national security and establishment of relevant posts—unrestricted by HKSAR laws.

Financial Secretary shall submit annual report on control and management of the fund to HKSAR Legislative Council.

第三章  罪行和處罰

Chapter III
Offences and Penalties

 

第一節  分裂國家罪

Part 1 Secession

 

第二十條

任何人組織、策劃、實施或者參與實施以下旨在分裂國家、破壞國家統一行為之一的,不論是否使用武力或者以武力相威脅,即屬犯罪:

  1. 將香港特別行政區或者中華人民共和國其他任何部分從中華人民共和國分離出去;
  2. 非法改變香港特別行政區或者中華人民共和國其他任何部分的法律地位;
  3. 將香港特別行政區或者中華人民共和國其他任何部分轉歸外國統治

Article 20

A person who organises, plans, commits [implements 實施] or participates in any of the following acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification shall be guilty of an offence:

  1. separating the Hong Kong Special Administrative Region or any other part of the People’s Republic of China from the People’s Republic of China;
  2. altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China; or
  3. surrendering [transferring 轉歸] the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to [*the rule of 統治] a foreign country.

Secession offences.
Organise, plan, implement, or participate in acts to:

  1. separate HKSAR or any other part of PRC from the PRC;
  2. alter by unlawful means status of HKSAR or any other part of PRC; or
  3. transfer HKSAR or any part of PRC to the rule of a foreign country.

犯前款罪,對首要分子或者罪行重大的,處無期徒刑或者十年以上有期徒刑;對積極參加的,處三年以上十年以下有期徒刑;對其他參加的,處三年以下有期徒刑、拘役或者管制。

A person who is a principal offender or a person who commits an offence of a grave nature [with grave circumstances 罪行重大] shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.

Penalties.
Principal offender of offence with grave circumstances: life imprisonment or fixed-term imprisonment of not less than ten years.

Active participant: fixed-term imprisonment of three years to ten years.

Other participants: fixed-term imprisonment of not more than three years, short-term detention or restriction.

第二十一條

任何人煽動、協助、教唆、以金錢或者其他財物資助他人實施本法第二十條規定的犯罪的,即屬犯罪。情節嚴重的,處五年以上十年以下有期徒刑;情節較輕的,處五年以下有期徒刑、拘役或者管制。

Article 21

A person who incites, assists in, abets [counsels 教唆] or provides pecuniary or other financial assistance or pecuniary property for the commission by other persons of the offence under Article 20 of this Law shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.

Secession offences.
Incite, assist in, counsel, or provide pecuniary or other financial assistance or property for commission of secession by others.

Penalties.
If circumstances are serious: fixed-term imprisonment of five years to ten years.

If circumstances are minor: fixed-term imprisonment of not more than five years, short-term detention, or restriction.

第二節  顛覆國家政權罪

Part 2 Subversion

 

第二十二條

任何人組織、策劃、實施或者參與實施以下以武力、威脅使用武力或者其他非法手段旨在顛覆國家政權行為之一的,即屬犯罪:

Article 22

A person who organises, plans, commits [implements 實施] or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:

Subversion offences.
Organise, plan, implement, or participate in acts by force/threat of force/other unlawful means to:

  1. 推翻、破壞中華人民共和國憲法所確立的中華人民共和國根本制度;
  2. 推翻中華人民共和國中央政權機關或者香港特別行政區政權機關
  3. 嚴重干擾、阻撓破壞中華人民共和國中央政權機關或者香港特別行政區政權機關依法履行職能;
  4. 攻擊、破壞香港特別行政區政權機關履職場所及其設施,致使其無法正常履行職能。
  1. overthrowing or undermining [sabotaging 破壞] the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;
  2. overthrowing the body [organs 機關] of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;
  3. seriously interfering in, disrupting [obstructing 阻撓], or undermining [sabotaging 破壞] the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region; or
  4. attacking or damaging the premises and facilities used by the body of power of the Hong Kong Special Administrative Region to perform its duties and functions, rendering it incapable of performing its normal duties and functions.
  1. overthrow or sabotage the basic system of the PRC established by PRC Constitution;
  2. overthrow CPG or HKSAR political organs;
  3. seriously interfere in, obstruct, or sabotage the performance of duties and functions of CPG or HKSAR body of power; or
  4. attack or damage premises and facilities of HKSAR political organs, resulting in their incapacity to perform their normal duties and functions.

犯前款罪,對首要分子或者罪行重大的,處無期徒刑或者十年以上有期徒刑;對積極參加的,處三年以上十年以下有期徒刑;對其他參加的,處三年以下有期徒刑、拘役或者管制。

 

A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.

Penalties.
Principal offender of offence of a grave nature: life imprisonment or fixed-term imprisonment not less than ten years.

Active participant: fixed-term imprisonment of three years to ten years.

Other participants: imprisonment of not more than three years, short-term detention, or restriction.

第二十三條

任何人煽動、協助、教唆、以金錢或者其他財物資助他人實施本法第二十二條規定的犯罪的,即屬犯罪。情節嚴重的,處五年以上十年以下有期徒刑;情節較輕的,處五年以下有期徒刑、拘役或者管制。

Article 23

A person who incites, assists in, abets [counsels 教唆] or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 22 of this Law shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.

Subversion offences.
Incite, assist in, counsel, or provide pecuniary or other financial assistance or property for commission of subversion by others. 

Penalties.
If circumstances are serious: fixed-term imprisonment of five years to ten years. 

If circumstances are minor: fixed-term imprisonment of not more than five years, short-term detention, or restriction.

第三節  恐怖活動罪

Part 3 Terrorist Activities

 

第二十四條

為脅迫中央人民政府、香港特別行政區政府或者國際組織或者威嚇公眾 [意]實現政治主張,組織、策劃、實施、參與實施或者威脅實施以下造成或者意圖造成嚴重社會危害的恐怖活動之一的,即屬犯罪:

Article 24

A person who organises, plans, commits [implements 實施], participates in or threatens to commit any of the following terrorist activities causing or intended to cause grave harm to the society with a view to coercing the Central People’ s Government, the Government of the Hong Kong Special Administrative Region or an international organisation or intimidating the public in order to pursue political agenda shall be guilty of an offence:

Terrorist activities offences.

  • Organise, plan, implement, participate in, or threaten to commit acts listed below
  • causing or intended to cause grave harm to society
  • in order to coerce CPG, HKSAR, or an int’l org, or intimidate the public to pursue political agenda:
  1. 針對人的嚴重暴力;
  2. 爆炸、縱火或者投放毒害性、放射性、傳染病病原體等物質;
  3. 破壞交通工具、交通設施、電力設備、燃氣設備或者其他易燃易爆設備;
  4. 嚴重干擾、破壞水、電、燃氣、交通、通訊、網絡等公共服務和管理的電子控制系統;
  5. 以其他危險方法嚴重危害公眾健康或者安全
  1. serious violence against a person or persons;
  2. explosion, arson, or dissemination of poisonous or radioactive substances, pathogens of infectious diseases or other substances;
  3. sabotage of means of transport, 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 such as water, electric power, gas, transport, telecommunications and the internet; or
  5. other dangerous activities [methods 方法] which seriously jeopardise [harm (or endanger) 重危] public health [or] safety, or security.
  1. serious violence against person or persons;
  2. explosion, arson, dissemination of poisonous or radioactive substances, or pathogens;
  3. sabotage of means of transport, transport facilities, electric power or gas facilities, or other combustible or explosive facilities;
  4. serious interruption or sabotage of electronic control systems for public services; or
  5. other dangerous methods seriously harming (or endangering) public health or safety.

NOTE: Source text contains only a single term for “safety” 安全. The term “security” is not in the source text.

犯前款罪,致人重傷、死亡或者使公私財產遭受重大損失的,處無期徒刑或者十年以上有期徒刑;其他情形,處三年以上十年以下有期徒刑。

A person who commits the offence causing serious bodily injury, death or significant loss of public or private property shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; in other circumstances, a person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.

Penalties.
Offender causing serious bodily injury, death, or significant loss of public or private property: life imprisonment or fixed-term imprisonment of not less than ten years. 

Offender in other circumstances: fixed-term imprisonment of three years to ten years.

第二十五條

組織、領導恐怖活動組織的,即屬犯罪,處無期徒刑或者十年以上有期徒刑,並處沒收財產;積極參加的,處三年以上十年以下有期徒刑,並處罰金;其他參加的,處三年以下有期徒刑、拘役或者管制,可以並處罰金。

Article 25

A person who organises or takes charge of [leads 領導] a terrorist organisation shall be guilty of an offence and shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years, and shall be subject to confiscation of property; a person who actively participates in a terrorist organisation shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall be imposed with a criminal fine; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction, and shall be liable to a criminal fine.

Penalties.
Offender who organises or leads a terrorist organisation: life imprisonment or fixed-term imprisonment of not less than ten years; and confiscation of property.

Active participant in a terrorist organisation: fixed-term imprisonment of three years to ten years and criminal fine.

Other participants: imprisonment of not more than three years, short-term detention, or restriction.

本法所指的恐怖活動組織,是指實施或者意圖實施本法第二十四條規定的恐怖活動罪行或者參與或者協助實施本法第二十四條規定的恐怖活動罪行的組織。

For the purpose of this Law, a terrorist organisation means an organisation which commits or intends to commit the offence under Article 24 of this Law or participates or assists in the commission of the offence.

Definition.

Terrorist organisation: an organisation which commits or intends to commit, terrorist offences, or participates or assists in commission of offences under Art. 24.

第二十六條

為恐怖活動組織、恐怖活動人員、恐怖活動實施提供培訓、武器、信息、資金、物資、勞務、運輸、技術或者場所等支持、協助、便利,或者製造、非法管有爆炸性、毒害性、放射性、傳染病病原體等物質以及以其他形式準備實施恐怖活動的,即屬犯罪。情節嚴重的,處五年以上十年以下有期徒刑,並處罰金或者沒收財產;其他情形,處五年以下有期徒刑、拘役或者管制,並處罰金。

Article 26

A person who provides support, assistance or facility [facilitation 便利] such as training, weapons, information, funds, supplies, labour, transport, technologies or venues to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses substances such as explosive, poisonous or radioactive substances and pathogens of infectious diseases or uses other means to prepare for the commission of a terrorist activity, shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to 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; in other circumstances, a person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine.

Terrorist activities offences.

  • provide support, assistance, or facilitation such as training, weapons, information, funds, supplies, labour, transport, technologies or venues to terrorist organization or a terrorist; or
  • manufacture or illegally possess explosives, poisonous or radioactive substances, or pathogens for commission of terrorist activities.

Penalties.
If circumstances are serious: fixed-term imprisonment of five years to ten years, and criminal fine or confiscation of property.

Other circumstances: fixed-term imprisonment of not more than five years, short-term detention, or restriction, and criminal fine.

有前款行為,同時構成其他犯罪的,依照處罰較重的規定定罪處罰。

If the act referred to in the preceding paragraph also constitutes other offences, the person who commits the act shall be convicted and sentenced for the offence that carries a more severe penalty.

Offender of acts in preceding paragraph which also constitute other offences shall be convicted and sentenced for the offences carrying more severe penalties.

第二十七條

宣揚恐怖主義、煽動實施恐怖活動的,即屬犯罪。情節嚴重的,處五年以上十年以下有期徒刑,並處罰金或者沒收財產;其他情形,處五年以下有期徒刑、拘役或者管制,並處罰金。

Article 27

A person who advocates terrorism or incites the commission of a terrorist activity shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to 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; in other circumstances, a person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine.

Terrorist activities offence.
Advocate terrorism or incites the commission of a terrorist activity.

Penalties.
If circumstances are serious: fixed-term imprisonment of five years to ten years, and criminal fine or confiscation of property.

Other circumstances: fixed-term imprisonment of not more than five years, short-term detention, or restriction, and criminal fine.

第二十八條

本節規定不影響依據香港特別行政區法律對其他形式的恐怖活動犯罪追究刑事責任並採取凍結財產等措施。

Article 28

The provisions of this Part shall not affect the prosecution of terrorist offences committed in other forms or the imposition of other measures such as freezing of property in accordance with the laws of the Hong Kong Special Administrative Region.

Terrorist activities in Part 3 shall not affect prosecution of terrorist offences committed in other forms under HKSAR laws.

第四節  勾結外國或者境外勢力危害國家安全罪

Part 4 Collusion with a Foreign Country or with External Elements [Overseas Forces 境外勢力] to Endanger National Security

 

第二十九條

為外國或者境外機構、組織、人員竊取、刺探、收買、非法提供涉及國家安全的國家秘密或者情報的;請求外國或者境外機構、組織、人員實施,與外國或者境外機構、組織、人員串謀實施,或者直接或者間接接受外國或者境外機構、組織、人員的指使、控制、資助或者其他形式的支援實施以下行為之一的,均屬犯罪:

Article 29

A person who steals, spies, obtains with payment, or unlawfully provides State secrets or intelligence concerning national security for a foreign country or an [overseas 境外] institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China shall be guilty of an offence; a person who requests a foreign country or an [overseas 境外] institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China, or conspires with a foreign country or an [overseas 境外] institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China, or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an [overseas 境外] institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China, to commit any of the following acts shall be guilty of an offence:

Collusion offences.

  • steal, spy, obtain with payment, or unlawfully provide State secrets or intelligence concerning national security for a foreign country, or an overseas institution, organization or individual; or
  • request, conspire with, or directly or indirectly receive instructions, control, funding, or other kinds of support from a foreign country, or an overseas institution, organization or individual to commit any of the following acts:
  1. 對中華人民共和國發動戰爭,或者以武力或者武力相威脅,對中華人民共和國主權、統一和領土完整造成嚴重危害
  2. 對香港特別行政區政府或者中央人民政府制定和執行法律、政策進行嚴重阻撓並可能造成嚴重後果;
  3. 對香港特別行政區選舉進行操控、破壞並可能造成嚴重後果;
  4. 對香港特別行政區或者中華人民共和國進行制裁、封鎖或者採取其他敵對行動;
  5. 通過各種非法方式引發香港特別行政區居民對中央人民政府或者香港特別行政區政府的憎恨並可能造成嚴重後果。
  1. waging a war against the People’s Republic of China, or using or threatening to use force to seriously undermine [harm (or endanger) 危害] the sovereignty, unification and territorial integrity of the People’s Republic of China;
  2. seriously disrupting [obstructing 阻撓] the formulation and implementation of laws or policies by the Government of the Hong Kong Special Administrative Region or by the Central People’s Government, which is likely to cause serious consequences;
  3. rigging or undermining [sabotaging 破壞] an election in the Hong Kong Special Administrative Region, which is likely to cause serious consequences;
  4. imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China; or
  5. provoking by unlawful means hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region, which is likely to cause serious consequences.
  1. wage war against PRC, or use or threaten to use force to seriously harm (or endanger) PRC sovereignty, unification, and territorial integrity;
  2. seriously obstruct formulation or implementation of laws or polices by HKSAR govt or CPG likely causing serious consequences;
  3. rig or sabotage an election in HKSAR likely causing serious consequences;
  4. impose sanctions or blockade, or engage in other hostiles act against HKSAR or PRC; or
  5. provoke by unlawful means hatred among Hong Kong residents toward CPG or HKSAR govt likely causing serious consequences.

犯前款罪,處三年以上十年以下有期徒刑;罪行重大的,處無期徒刑或者十年以上有期徒刑。

A person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years.

Penalties.

Fixed-term Imprisonment of three years to ten years.

Offence of grave nature: life imprisonment or fixed-term imprisonment of not less than ten years.

本條第一款規定涉及的境外機構、組織、人員,按共同犯罪定罪處刑。

The [overseas 境外] institution, organisation and individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China referred to in the first paragraph of this Article shall be convicted and punished for the same offence [their joint offences 共同犯罪].

Overseas institution, organisation, and individual referred to in the first paragraph shall be convicted and punished for the same offence.

第三十條

為實施本法第二十條、第二十二條規定的犯罪,與外國或者境外機構、組織、人員串謀,或者直接或者間接接受外國或者境外機構、組織、人員的指使、控制、資助或者其他形式的支援的,依照本法第二十條、第二十二條的規定從重處罰。

Article 30

A person who conspires with or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an [overseas 境外] institution, organisation, or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China to commit the offences under Article 20 or 22 of this Law shall be liable to a more severe penalty in accordance with the provisions therein respectively.

Penalty.

Offender who conspires with or directly or indirectly receives instructions, control, funding, or other kinds of support from a foreign country or overseas institution, organisation, or individual to commit secession (Art. 20) or subversion (Art. 22) shall receive the more severe penalties set out in Arts. 20 and 22.

第五節  其他處罰規定

Part 5 Other Provisions on Penalty

 

第三十一條

公司、團體等法人或者非法人組織實施本法規定的犯罪的,對該組織判處罰金。

Article 31

n incorporated or unincorporated body such as a company or an organisation which commits an offence under this Law shall be imposed with a criminal fine.

Penalties.
Incorporated or unincorporated body:
criminal fines and suspension of operation and revocation of license or business permit.

公司、團體等法人或者非法人組織因犯本法規定的罪行受到刑事處罰的,應責令其暫停運作或者吊銷其執照或者營業許可證。

The operation of an incorporated or unincorporated body such as a company or an organisation shall be suspended or its licence or business permit shall be revoked if the body has been punished for committing an offence under this Law.

 

第三十二條

因實施本法規定的犯罪而獲得的資助、收益、報酬等違法所得以及用於或者意圖用於犯罪的資金和工具,應當予以追繳、沒收。

Article 32

Proceeds obtained from the commission of an offence under this Law including financial aid, gains and rewards, and funds and tools used or intended to be used in the commission of the offence shall be seized [recovered 追繳] and confiscated.

Penalties.

Recovery and confiscation of proceeds from, and funds and tools used or intended to be used in, the commission of an offence.

第三十三條

有以下情形的,對有關犯罪行為人、犯罪嫌疑人、被告人可以從輕、減輕處罰;犯罪較輕的,可以免除處罰:

  1. 在犯罪過程中,自動放棄犯罪或者自動有效地防止犯罪結果發生的;
  2. 自動投案,如實供述自己的罪行的;
  3. 揭發他人犯罪行為,查證屬實,或者提供重要線索得以偵破其他案件的。

Article 33

A lighter penalty may be imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an offender, criminal suspect, or defendant:

  1. in the process of committing an offence, voluntarily discontinues the commission of the offence or voluntarily and effectively forestalls its consequences;
  2. voluntarily surrenders himself or herself and gives a truthful account of the offence; or
  3. reports on the offence committed by other [another 他人] person, which is verified to be true, or provides material information which assists in solving other criminal case.

Lighter or reduced penalties, or exemption, in case of minor offence if offender:

  1. discontinues the commission of the offence;
  2. surrenders and gives a truthful account of the offence; or
  3. reports on others or provides information assisting in solving other cases.

被採取強制措施的犯罪嫌疑人、被告人如實供述執法、司法機關未掌握的本人犯有本法規定的其他罪行的,按前款第二項規定處理。

Sub-paragraph (2) of the preceding paragraph shall apply to a criminal suspect or defendant who is subjected to mandatory measures and provides a truthful account of other offences committed by him or her under this Law which are unknown to the law enforcement or judicial authorities.

 

第三十四條

不具有香港特別行政區永久性居民身份的人實施本法規定的犯罪的,可以獨立適用或者附加適用驅逐出境。

Article 34

A person who is not a permanent resident of the Hong Kong Special Administrative Region may be subject to deportation as the sole or an additional [an independent or supplementary 獨立適用或者附加] punishment if he or she commits an offence under this Law.

Penalties for persons without HKSAR permanent residency status:

  • deportation as independent or supplementary punishment if offence is committed;
  • deportation if person contravenes this Law but is not prosecuted.

不具有香港特別行政區永久性居民身份的人違反本法規定,因任何原因不對其追究刑事責任的,也可以驅逐出境。

A person who is not a permanent resident of the Region may be subject to deportation if he or she contravenes the provisions of this Law but is not prosecuted for any reason.

 

第三十五條

任何人經法院判決犯危害國家安全罪行的,即喪失作為候選人參加香港特別行政區舉行的立法會、區議會選舉或者出任香港特別行政區任何公職或者行政長官選舉委員會委員的資格;曾經宣誓或者聲明擁護中華人民共和國香港特別行政區基本法、效忠中華人民共和國香港特別行政區的立法會議員、政府官員及公務人員、行政會議成員、法官及其他司法人員、區議員,即時喪失該等職務,並喪失參選或者出任上述職務的資格。

Article 35

A person who is convicted of an offence endangering national security by a court shall be disqualified from standing as a candidate in the elections of the Legislative Council and district councils of the Hong Kong Special Administrative Region, holding any public office in the Region, or serving as a member of the Election Committee for electing the Chief Executive. If a person so convicted is a member of the Legislative Council, a government official, a public servant, a member of the Executive Council, a judge or a judicial officer, or a member of the district councils, who has taken an oath or made a declaration to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’ s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’ s Republic of China, he or she shall be removed from his or her office upon conviction, and shall be disqualified from standing for the aforementioned elections or from holding any of the aforementioned posts.

Conviction of national security offence disqualifies persons from standing as candidates or holding any public office.

If a LegCo member, govt official, public servant, or member of district council who has taken oath is convicted of national security offence, he/she shall be removed, and disqualified from standing as candidates or holding any public office.

NOTE: Since a conviction can be reversed on appeal, this reference to conviction by “a” court經法院判決 raises questions on whether a conviction by “a” court that is being appealed can be the basis for disqualification/removal.

前款規定資格或者職務的喪失,由負責組織、管理有關選舉或者公職任免的機構宣佈。

The disqualification and removal from offices referred to in the preceding paragraph shall be announced by the authorities responsible for organising and managing the relevant elections or for the appointment and removal of holders of public office.

 

第六節  效力範圍

Part 6 Scope of Application

 

第三十六條

任何人在香港特別行政區內實施本法規定的犯罪的,適用本法。犯罪的行為或者結果有一項發生在香港特別行政區內的,就認為是在香港特別行政區內犯罪。

Article 36

This Law shall apply to offences under this Law which are committed in the Hong Kong Special Administrative Region by any person. An offence shall be deemed to have been committed in the Region if an act constituting the offence or the consequence of the offence occurs in the Region.

This Law applies to:

  • offences committed in HKSAR by any person, including acts or consequences occurring in the HKSAR; or
  • on board a vessel/aircraft registered in HKSAR.

在香港特別行政區註冊的船舶或者航空器內實施本法規定的犯罪的,也適用本法。

This Law shall also apply to offences under this Law committed on board a vessel or aircraft registered in the Region.

 

第三十七條

香港特別行政區永久性居民或者在香港特別行政區成立的公司、團體等法人或者非法人組織在香港特別行政區以外實施本法規定的犯罪的,適用本法。

Article 37

This Law shall apply to a person who is a permanent resident of the Hong Kong Special Administrative Region or an incorporated or unincorporated body such as a company or an organisation which is set up in the Region if the person or the body commits an offence under this Law outside the Region.

This Law applies to:

  • a HKSAR permanent resident;
  • an incorporated or unincorporated body set up in HKSAR; or
  • a person or the body who commits an offence under this Law outside HKSAR.

第三十八條

不具有香港特別行政區永久性居民身份的人在香港特別行政區以外針對香港特別行政區實施本法規定的犯罪的,適用本法。

Article 38

This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.

This Law applies to:
offences committed against the HKSAR from outside HKSAR by a person who is not a HKSAR permanent resident.

第三十九條

本法施行以後的行為,適用本法定罪處刑。

Article 39

This Law shall apply to acts committed after its entry into force for the purpose of conviction and imposition of punishment.

This Law applies to acts committed after this Law’s entry into force.

第四章  案件管轄、法律適用和程序

Chapter IV
Jurisdiction, Applicable Law and Procedure

 

第四十條

香港特別行政區對本法規定的犯罪案件行使管轄權,但本法第五十五條規定的情形除外。

Article 40

The Hong Kong Special Administrative Region shall have jurisdiction over cases concerning offences under this Law, except under the circumstances specified in Article 55 of this Law.

 HKSAR has jurisdiction except for circumstances specified in Art. 55 (jurisdiction of the Office for Safeguarding National Security of CPG in HKSAR).

第四十一條

香港特別行政區管轄危害國家安全犯罪案件的立案偵查、檢控、審判和刑罰的執行等程序事宜,適用本法和香港特別行政區本地法律。

Article 41

This Law and the laws of the Hong Kong Special Administrative Region shall apply to procedural matters, including those related to criminal [*case filing 案件的立案,] investigation, prosecution, trial, and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.

This Law shall apply to criminal case filing, investigation, prosecution, trial, and execution of penalty of cases over which the HKSAR has jurisdiction.

未經律政司長書面同意,任何人不得就危害國家安全犯罪案件提出檢控。但該規定不影響就有關犯罪依法逮捕犯罪嫌疑人並將其羈押,也不影響該等犯罪嫌疑人申請保釋。

No prosecution shall be instituted in respect of an offence endangering national security without the written consent of the Secretary for Justice. This provision shall not prejudice the arrest and detention of a person who is suspected of having committed the offence or the application for bail by the person in accordance with the law.

No prosecution may be initiated without written consent of Secretary for Justice.

香港特別行政區管轄的危害國家安全犯罪案件的審判循公訴程序進行。

Cases concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment.

Cases of endangering national security within the jurisdiction of the HKSAR shall be tried on indictment.

審判應當公開進行。因為涉及國家秘密、公共秩序等情形不宜公開審理的,禁止新聞界和公眾旁聽全部或者一部分審理程序,但判決結果應當一律公開宣佈。

The trial shall be conducted in an open court. When circumstances arise such as the trial involving State secrets or public order, [the media and the public shall be prohibited from attending 禁止新聞界和公眾旁聽] all or part of the trial shall be closed to the media and the public but the judgment shall be delivered in an open court.

All or part of a trial involving State secrets or public order shall be closed to media and public; judgment to be delivered in open court.

第四十二條

香港特別行政區執法、司法機關在適用香港特別行政區現行法律有關羈押審理期限等方面的規定時,應當確保危害國家安全犯罪案件公正、及時辦理,有效防範、制止和懲治危害國家安全犯罪。

Article 42

When applying the laws in force in the Hong Kong Special Administrative Region concerning matters such as the detention and time limit for trial [time limits related to detention and trial 有關羈押、審理期限], the law enforcement and judicial authorities of the Region shall ensure that cases concerning offence endangering national security are handled in a fair and timely manner so as to effectively prevent, suppress and impose punishment for such offence.

HKSAR law enforcement and judicial authorities shall ensure fairness and timeliness in handling national security cases, so as to prevent, suppress, and punish the offences.

“對犯罪嫌疑人、被告人,除非法官有充足理由相信其不會繼續實施危害國家安全行為的,不得准予保釋。

No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.

No bail for a suspect unless a judge determines the suspect/defendant will not continue to commit acts.

第四十三條

香港特別行政區政府警務處維護國家安全部門辦理危害國家安全犯罪案件時,可以採取香港特別行政區現行法律准予警方等執法部門在調查嚴重犯罪案件時採取的各種措施,並可以採取以下措施:

Article 43

When handling cases concerning offence endangering national security, the department for safeguarding national security of the Police Force of the Hong Kong Special Administrative Region may take measures that law enforcement authorities, including the Hong Kong Police Force, are allowed to apply under the laws in force in the Hong Kong Special Administrative Region in investigating serious crimes, and may also take the following measures:

HKPF DSNS may take measures outside of those authorized by existing laws, including:

  1. 搜查可能存有犯罪證據的處所、車輛、船隻、航空器以及其他有關地方和電子設備;
  2. 要求涉嫌實施危害國家安全犯罪行為的人員交出旅行證件或者限制其離境;
  3. 對用於或者意圖用於犯罪的財產、因犯罪所得的收益等與犯罪相關的財產,予以凍結,申請限制令、押記令、沒收令以及充公;
  4. 要求信息發佈人或者有關服務商移除信息或者提供協助;
  5. 要求外國及境外政治性組織,外國及境外當局或者政治性組織的代理人提供資料;
  6. 經行政長官批准,對有合理理由懷疑涉及實施危害國家安全犯罪的人員進行截取通訊和秘密監察;
  7. 對有合理理由懷疑擁有與偵查有關的資料或者管有有關物料的人員,要求其回答問題和提交資料或者物料。
  1. search of premises, vehicles, vessels, aircraft and other relevant places and electronic devices that may contain evidence of an offence;
  2. ordering any person suspected of having committed an offence endangering national security to surrender travel documents, or prohibiting the person concerned from leaving the Region;
  3. freezing of, applying for restraint order, charging order and confiscation order in respect of, and forfeiture of property used or intended to be used for the commission of the offence, proceeds of crime, or other property relating to the commission of the offence;
  4. requiring a person who published information or the relevant service provider to delete [remove 移除] the information or provide assistance;
  5. requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or an agent of authorities or a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to provide information;
  6. upon approval of the Chief Executive, carrying out interception of communications and conducting covert surveillance on a person who is suspected, on reasonable grounds, of having involved in the commission of an offence endangering national security; and
  7. requiring a person, who is suspected, on reasonable grounds, of having in possession information or material relevant to investigation, to answer questions and furnish such information or produce such material.
  1. searches of premises, vehicles, vessels, aircraft and other relevant places and electronic devices;
  2. ordering surrender of travel documents;
  3. freezing and confiscating property, proceeds of crimes, other related property;
  4. requiring service providers to remove published information;
  5. requiring foreign political organisations or their agents outside the mainland, Hong Kong, and Macao to provide information;
  6. with approval of CE, intercepting communications and carrying out covert surveillance on suspects; and
  7. requiring a person suspected of possessing information or material relevant to investigation to answer questions and provide the material.

香港特別行政區維護國家安全委員會對警務處維護國家安全部門等執法機構採取本條第一款規定措施負有監督責任。

The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be responsible for supervising the implementation of the measures stipulated in the first paragraph of this Article by law enforcement authorities including the department for safeguarding national security of the Hong Kong Police Force.

CSNS (established by Art. 12) shall have oversight over implementation of measures in the first paragraph of this Article by law enforcement including the HKPF DSNS.

授權香港特別行政區行政長官會同香港特別行政區維護國家安全委員會為採取本條第一款規定措施制定相關實施細則。

The Chief Executive shall be authorised, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under the first paragraph of this Article.

CE shall be authorized, in conjunction with CSNS, to make implementation rules for applying HKPF DSNS measures.

第四十四條

香港特別行政區行政長官應當從裁判官、區域法院法官、高等法院原訟法庭法官、上訴法庭法官以及終審法院法官中指定若干名法官,也可從暫委或者特委法官中指定若干名法官,負責處理危害國家安全犯罪案件。行政長官在指定法官前可徵詢香港特別行政區維護國家安全委員會和終審法院首席法官的意見。上述指定法官任期一年。

Article 44

The Chief Executive shall designate a number of judges from the magistrates, the judges of the District Court, the judges of the Court of First Instance and the Court of Appeal of the High Court, and the judges of the Court of Final Appeal, and may also designate a number of judges from deputy judges or recorders, to handle cases concerning offence endangering national security. Before making such designation, the Chief Executive may consult the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Chief Justice of the Court of Final Appeal. The term of office of the aforementioned designated judges shall be one year.

CE shall designate judges to handle national security cases.

CE may consult with the CSNS and the Chief Justice, and judges of the Court of Final Appeal for making such designations.

凡有危害國家安全言行的,不得被指定為審理危害國家安全犯罪案件的法官。在獲任指定法官期間,如有危害國家安全言行的,終止其指定法官資格。

A person shall not be designated as a judge to adjudicate a case concerning offence endangering national security if he or she has made any statement or behaved in any manner endangering national security. A designated judge shall be removed from the designation list if he or she makes any statement or behaves in any manner endangering national security during the term of office.

Judges who have made statements or committed acts that have “in any manner” endangered national security shall not adjudicate national security cases.

在裁判法院、區域法院、高等法院和終審法院就危害國家安全犯罪案件提起的刑事檢控程序應當分別由各該法院的指定法官處理。

The proceedings in relation to the prosecution for offences endangering national security in the magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall be handled by the designated judges in the respective courts.

All national security cases shall be tried by designated judges in the respective courts

第四十五條

除本法另有規定外,裁判法院、區域法院、高等法院和終審法院應當按照香港特別行政區的其他法律處理就危害國家安全犯罪案件提起的刑事檢控程序。

Article 45

Unless otherwise provided by this Law, magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the Hong Kong Special Administrative Region.

Designated judges at all levels of courts shall handle national security cases in accordance with the laws of the HKSAR.

第四十六條

對高等法院原訟法庭進行的就危害國家安全犯罪案件提起的刑事檢控程序,律政司長可基於保護國家秘密、案件具有涉外因素或者保障陪審員及其家人的人身安全理由,發出證書指示相關訴訟毋須在有陪審團的情況下進行審理。凡律政司長發出上述證書,高等法院原訟法庭應當在沒有陪審團的情況下進行審理,並由三名法官組成審判庭。

Article 46

In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, [including 等:] the protection of State secrets, involvement of foreign factors in the case, and the protection [guarantee 保障] of personal safety of jurors and their family members. Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.

Secretary of Justice may issue certificate for trial without jury on grounds including:

  • protection of state secrets;
  • “foreign factors” involvement; and
  • guarantee of personal safety of jurors and family members.

凡律政司長發出前款規定的證書,適用於相關訴訟的香港特別行政區任何法律條文關於“陪審團”或者“陪審團的裁決”,均應當理解為指法官或者法官作為事實裁斷者的職能。

Where the Secretary for Justice has issued the certificate, the reference to “a jury” or “a verdict of the jury” in any provision of the laws of the Hong Kong Special Administrative Region applicable to the related proceedings shall be construed as referring to the judges or the functions of the judge as a judge of fact.

With this certificate, a case shall be tried by a panel of three judges in the Court of First Instance.

References to “jury” or “verdict of the jury” in such cases are construed as judges functioning as judge of fact.

第四十七條

香港特別行政區法院在審理案件中遇有涉及有關行為是否涉及國家安全或者有關證據材料是否涉及國家秘密的認定問題,應取得行政長官就該等問題發出的證明書,上述證明書對法院有約束力。

Article 47

The courts of the Hong Kong Special Administrative Region shall obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.

HKSAR courts shall obtain binding certificate from CE regarding:

  • whether act involves national security; or
  • evidence involves state secrets.

第五章  中央人民政府駐香港特別行政區維護國家安全機構

Chapter V
Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region

 

第四十八條

中央人民政府在香港特別行政區設立維護國家安全公署。中央人民政府駐香港特別行政區維護國家安全公署依法履行維護國家安全職責,行使相關權力。

Article 48

The Central People’ s Government shall establish in the Hong Kong Special Administrative Region an office for safeguarding national security. The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall perform its mandate [duties and responsibilities 職責] for safeguarding national security and exercise relevant powers in accordance with the law.

CPG shall establish an Office for Safeguarding National Security (OSNS) in HKSAR.

駐香港特別行政區維護國家安全公署人員由中央人民政府維護國家安全的有關機關聯合派出。

The staff of the Office shall be jointly dispatched by relevant national security authorities under the Central People’s Government.

Staff of OSNS are sent by relevant CPG national security authorities

第四十九條

駐香港特別行政區維護國家安全公署的職責為:

Article 49

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall perform the following mandate [duties and responsibilities 職責]:

 

  1. 分析研判香港特別行政區維護國家安全形勢,就維護國家安全重大戰略和重要政策提出意見和建議
  2. 監督、指導、協調、支持香港特別行政區履行維護國家安全的職責
  3. 收集分析國家安全情報信息;
  4. 依法辦理危害國家安全犯罪案件。
  1. analysing and assessing developments [situations形勢] in relation to safeguarding national security in the Hong Kong Special Administrative Region, and providing opinions and making proposals [recommendations 建議] on major strategies and important policies for safeguarding national security;
  2. overseeing, guiding, coordinating with, and providing support to the Region in the performance of its duties [*and responsibilities 職責] for safeguarding national security;
  3. collecting and analysing intelligence and information concerning national security; and
  4. handling cases concerning offence endangering national security in accordance with the law.

OSNS is empowered to:

  1. analyse and assess national security situations in the HKSAR; provide major strategic and policy recommendations;
  2. oversee, guide, coordinate, and support all work in HKSAR relating to safeguarding national security;
  3. collect and analyse intelligence; and
  4. handle cases.

第五十條

駐香港特別行政區維護國家安全公署應當嚴格依法履行職責,依法接受監督,不得侵害任何個人和的合法權益。

Article 50

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall perform its mandate [duties and responsibilities 職責] in strict compliance with the law and be subject to supervision in accordance with the law. It shall not infringe upon the lawful rights and interests of any individual or organisation.

OSNS shall not infringe on the rights and interests of any individual or organisation.

Staff of OSNS shall:

  • abide by HKSAR and national laws; and
  • be supervised by national supervisory authorities.

駐香港特別行政區維護國家安全公署人員除須遵守全國性法律外,還應當遵守香港特別行政區法律。

The staff of the Office shall abide by the laws of the Hong Kong Special Administrative Region as well as national laws.

QUESTION: How can Art. 50 reconcile with Art. 60, which states: “[t]he acts performed in the course of duty by the Office for Safeguarding National Security . . . and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region”?

駐香港特別行政區維護國家安全公署人員依法接受國家監察機關的監督。

The staff of the Office shall be subject to the supervision of the national supervisory authorities in accordance with the law.

 

第五十一條

駐香港特別行政區維護國家安全公署的經費由中央財政保障

Article 51

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall be funded [financially guaranteed 財政保障] by the Central People’ s Government.

OSNS shall be financially guaranteed by the CPG.

第五十二條

駐香港特別行政區維護國家安全公署應當加強與中央人民政府駐香港特別行政區聯絡辦公室、外交部駐香港特別行政區特派員公署、中國人民解放軍駐香港部隊的工作聯繫和工作協同。

Article 52

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall strengthen working relations and cooperation with the Liaison Office of the Central People’ s Government in the Hong Kong Special Administrative Region, the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region, and the Hong Kong Garrison of the Chinese People’ s Liberation Army.

OSNS shall strengthen cooperation with CPG representative entities in HKSAR:

  • Liaison Office (LOCPG);
  • Office of Commissioner of Ministry of Foreign Affairs in the HKSAR; and
  • PLA’s Hong Kong Garrison.

第五十三條

駐香港特別行政區維護國家安全公署應當與香港特別行政區維護國家安全委員會建立協調機制,監督、指導香港特別行政區維護國家安全工作。

Article 53

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall establish a mechanism of coordination with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region to oversee and provide guidance on the work of the Hong Kong Special Administrative Region for safeguarding national security.

OSNS has oversight power over all national security work in HKSAR, through a coordination mechanism with the CSNS (established in Art. 12).

駐香港特別行政區維護國家安全公署的工作部門應當與香港特別行政區維護國家安全的有關機關建立協作機制,加強信息共享和行動配合。

The working departments of the Office shall establish mechanisms for collaboration with the relevant authorities of the Region responsible for safeguarding national security to enhance information sharing and operations coordination.

Working depts of OSNS shall share information and coordinate operations with relevant HKSAR authorities.

第五十四條

駐香港特別行政區維護國家安全公署、外交部駐香港特別行政區特派員公署會同香港特別行政區政府採取必要措施,加強對外國和國際組織駐香港特別行政區機構、在香港特別行政區的外國和境外非政府組織和新聞機構的管理和服務。

Article 54

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region and the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region shall, together with the Government of the Hong Kong Special Administrative Region, take necessary measures to strengthen the management of and services for organs of foreign countries and international organisations in the Region, as well as non-governmental organisations and news agencies of foreign countries and from outside the mainland, Hong Kong, and Macao of the People’ s Republic of China in the Region.

OSNS, together with the Office of the Commissioner of the Ministry of Foreign Affairs in HKSAR, are empowered to manage:

  • organs of foreign governments;
  • international organisations and NGOs; and
  • foreign news agencies.

第五十五條

有以下情形之一的,經香港特別行政區政府或者駐香港特別行政區維護國家安全公署提出,並報中央人民政府批准,由駐香港特別行政區維護國家安全公署對本法規定的危害國家安全犯罪案件行使管轄權:

Article 55

The Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall, upon approval by the Central People’ s Government of a request made by the Government of the Hong Kong Special Administrative Region or by the Office itself, exercise jurisdiction over a case concerning offence endangering national security under this Law, if:

OSNS shall exercise jurisdiction over a case if:

  • the case is complex;
  • a serious situation has occurred where HKSAR is unable to effectively enforce this Law; or
  • a major and imminent threat has occurred. 

QUESTION: What is the relationship between Art. 55 and Art. 18(4) of the Basic Law?

  1. 案件涉及外國或境外勢力介入的複雜情況,香港特別行政區管轄確有困難的;
  2. 出現香港特別行政區政府無法有效執行本法的嚴重情況的;
  3. 出現國家安全面臨重大現實威脅的情況的
  1. the case is complex due to the involvement of a foreign country or external elements [overseas forces 境外勢力], thus making it difficult for the Region to exercise jurisdiction over the case;
  2. a serious situation occurs where the Government of the Region is unable to effectively enforce this Law; or
  3. a major and imminent threat to national security has occurred [a situation of actual major and imminent threat to national security occurs出現國家安全面臨重大現實威脅的情況的].

 

第五十六條

根據本法第五十五條規定管轄有關危害國家安全犯罪案件時,由駐香港特別行政區維護國家安全公署負責立案偵查,最高人民檢察院指定有關檢察機關行使檢察權,最高人民法院指定有關法院行使審判權。

Article 56

In exercising jurisdiction over a case concerning offence endangering national security pursuant to Article 55 of this Law, the Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region shall initiate investigation into the case, the Supreme People’ s Procuratorate shall designate a prosecuting body to prosecute it, and the Supreme People’ s Court shall designate a court to adjudicate it.

In exercising jurisdiction over a case pursuant to Art. 55:

  • OSNS shall initiate investigation;
  • Supreme People’s Procuratorate shall designate prosecuting body to prosecute;
  • Supreme People’s Court shall designate a court to adjudicate.

第五十七條

根據本法第五十五條規定管轄案件的立案偵查、審查起訴、審判和刑罰的執行等訴訟程序事宜,適用《中華人民共和國刑事訴訟法》等相關法律的規定。

Article 57

The Criminal Procedure Law of the People’ s Republic of China and other related national laws shall apply to procedural matters, including those related to criminal investigation, examination and prosecution, trial, and execution of penalty, in respect of cases over which jurisdiction is exercised pursuant to Article 55 of this Law.

In cases over which jurisdiction is exercised pursuant to Art. 55:

  • PRC’s Criminal Procedure Law and other related national laws shall apply;
  • decisions of authorities referred to in Art. 56 shall have legal force in HKSAR; and
  • institutions, organisations, and individuals concerned must comply with measures taken by OSNS.

根據本法第五十五條規定管轄案件時,本法第五十六條規定的執法、司法機關依法行使相關權力,其為決定採取強制措施、偵查措施和司法裁判而簽發的法律文書在香港特別行政區具有法律效力。對於駐香港特別行政區維護國家安全公署依法採取的措施,有關機構、組織和個人必須遵從。

When exercising jurisdiction over cases pursuant to Article 55 of this Law, the law enforcement and judicial authorities referred to in Article 56 of this Law shall exercise powers in accordance with the law. The legal documents issued by these authorities on their decisions to take mandatory and investigation measures and on their judicial decisions shall have legal force in the Hong Kong Special Administrative Region. The institutions, organisations and individuals concerned must comply with measures taken by the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region in accordance with the law.

 

第五十八條

根據本法第五十五條規定管轄案件時,犯罪嫌疑人自被駐香港特別行政區維護國家安全公署第一次訊問或者採取強制措施之日起,有權委託律師作為辯護人。辯護律師可以依法為犯罪嫌疑人、被告人提供法律幫助。

Article 58

In a case over which jurisdiction is exercised pursuant to Article 55 of this Law, a criminal suspect shall have the right to retain a lawyer to represent him or her from the day he or she first receives inquiry made by the Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region or from the day a mandatory measure is taken against him or her. A defence lawyer may provide legal assistance to a criminal suspect or defendant in accordance with the law.

In cases over which jurisdiction is exercised pursuant to Art. 55:

  • a criminal suspect shall have right to retain a lawyer from the day he/she receives inquiry from OSNS or from the day a mandatory measure is taken against him/her;
  • a criminal suspect or defendant shall be entitled to a fair trial without undue delay

QUESTION: Will the lawyers be mainland Chinese lawyers or Hong Kong lawyers?

犯罪嫌疑人、被告人被合法拘捕後,享有儘早接受司法機關公正審判的權利。

A criminal suspect or defendant who is arrested in accordance with the law shall be entitled to a fair trial before a judicial body without undue delay.

 

第五十九條

根據本法第五十五條規定管轄案件時,任何人如果知道本法規定的危害國家安全犯罪案件情況,都有如實作證的義務。

Article 59

In a case over which jurisdiction is exercised pursuant to Article 55 of this Law, any person who has information pertaining to an offence endangering national security under this Law is obliged to testify truthfully.

In cases over which jurisdiction is exercised pursuant to Art. 55: any person with information pertaining to an offence is obliged to testify truthfully.

第六十條

駐香港特別行政區維護國家安全公署及其人員依據本法執行職務的行為,不受香港特別行政區管轄。

Article 60

The acts performed in the course of duty by the Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region.

OSNS and its staff shall not be subject to jurisdiction of HKSAR.

持有駐香港特別行政區維護國家安全公署制發的證件或者證明文件的人員和車輛等在執行職務時不受香港特別行政區執法人員檢查、搜查和扣押。

In the course of performing duty, a holder of an identification document or a document of certification [proof 證明] issued by the Office and the articles including vehicles used by the holder shall not be subject to inspection, search or detention by law enforcement officers of the Region.

Holder of an identification document or a document of certification issued by OSNS and articles including vehicles used by the holder shall not be subject to inspection, search, or detention by law enforcement officers in HKSAR.

駐香港特別行政區維護國家安全公署及其人員享有香港特別行政區法律規定的其他權利和豁免。

The Office and its staff shall enjoy other rights and immunities provided by laws of the Region.

 

第六十一條

駐香港特別行政區維護國家安全公署依據本法規定履行職責時,香港特別行政區政府有關部門須提供必要的便利和配合,對妨礙有關執行職務的行為依法予以制止並追究責任。

Article 61

The relevant departments of the Government of the Hong Kong Special Administrative Region shall provide necessary facilitation and support to the Office for Safeguarding National Security of the Central People’ s Government in the Hong Kong Special Administrative Region in performing its mandate [duties and responsibilities 職責] in accordance with this Law, and shall stop any act obstructing the performance of such mandate and hold those who commit such act liable in accordance with the law.

Relevant HKSAR government depts shall facilitate and support OSNS in performing its mandate and shall not obstruct the performance of such mandate.

第六章  附則

Chapter VI
Supplementary Provisions

 

第六十二條

香港特別行政區本地法律規定與本法不一致的,適用本法規定。

Article 62

This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.

Where inconsistent with HKSAR local laws, this Law shall prevail.

第六十三條

辦理本法規定的危害國家安全犯罪案件的有關執法、司法機關及其人員或者辦理其他危害國家安全犯罪案件的香港特別行政區執法、司法機關及其人員,應當對辦案過程中知悉的國家秘密、商業秘密和個人隱私予以保密。

Article 63

The law enforcement and judicial authorities and their staff who handle cases concerning offence endangering national security under this Law, or the law enforcement and judicial authorities of the Hong Kong Special Administrative Region and their staff who handle other cases concerning offence endangering national security, shall keep confidential State secrets, trade secrets or personal information which they come to know in the process of handling such cases.

Confidentiality of State secrets, trade secrets, or personal information shall be kept by:

  • law enforcement and judicial authorities and their staff; and
  • a lawyer who serves as defence counsel or legal representative.

擔任辯護人或者訴訟代理人的律師應當保守在執業活動中知悉的國家秘密、商業秘密和個人隱私。

A lawyer who serves as defence counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he or she comes to know in the practice of law.

 

配合辦案的有關機構、組織和個人應當對案件有關情況予以保密。

The relevant institutions, organisations and individuals who assist with the handling of a case shall keep confidential any information pertaining to the case.

Confidentiality of case information shall be kept by:

  • relevant institutions, organisations; and
  • individuals who assist with the handling of a case.

第六十四條

香港特別行政區適用本法時,本法規定的“有期徒刑” “無期徒刑” “沒收財產”和“罰金”分別指“監禁” “終身監禁” “充公犯罪所得”和“罰款”,“拘役”參照適用香港特別行政區相關法律規定的“監禁” “入勞役中心” “入教導所”,“管制”參照適用香港特別行政區相關法律規定的“社會服務令” “入感化院”,“吊銷執照或者營業許可證”指香港特別行政區相關法律規定的“取消註冊或者註冊豁免,或者取消牌照”。

Article 64

In the application of this Law in the Hong Kong Special Administrative Region, the terms “fixed-term imprisonment” , “life imprisonment” , “confiscation of property” and “criminal fine” in this Law respectively mean “imprisonment” , “imprisonment for life” , “confiscation of proceeds of crime” and “fine”; “short-term detention” shall be construed, with reference to the relevant laws of the Region, as “imprisonment” , “detention in a detention centre” or “detention in a training centre” ; “restriction” shall be construed, with reference to the relevant laws of the Region, as “community service” or “detention in a reformatory school” ; and “revoke licence or business permit” means “revoke registration or exemption from registration, or revoke licence” as provided for in the relevant laws of the Region.

Fixed-term imprisonment, life imprisonment, confiscation of property, and “criminal fine.”

Confiscation of proceeds of crime and “fine.”

Short-term detention.

 

Restriction.

 

Revocation of licence or business permit.

第六十五條

本法的解釋權屬於全國人民代表大會常務委員會。

Article 65

The power of interpretation of this Law shall be vested in the Standing Committee of the National People’ s Congress.

NPCSC has power of interpretation of this Law.

第六十六條

本法自公佈之日起施行。

Article 66

This Law shall come into force on the date of its promulgation.

Entry into force upon promulgation.

 


[1]All emphases added.

 

Annex B: Hong Kong’s national security entities and background on key appointed personnel
  1. The Committee for Safeguarding National Security (CSNS)
  2. The Office for Safeguarding National Security (OSNS)
  3. The Department for Safeguarding National Security of the Hong Kong Police Force (DSNS)
  4. The Specialised National Security Crimes Prosecution Division of the Department of Justice (SPD)

 

1. The Committee for Safeguarding National Security (CSNS) (NSL, Arts. 12-15, 43)

 

Committee

Chairperson

Carrie Lam Cheng Yuet-ngor
Carrie Lam Cheng Yuet-ngor,
Chief Executive, Hong Kong SAR
(sanctioned by the U.S.)

Lam is the fourth and current Chief Executive of the Hong Kong SAR (since 2017). Previously, she served as the Secretary for Development (2007-2012) and Chief Secretary for Administration (2012- 2017). After graduating from the University of Hong Kong, Lam joined the British Hong Kong civil service in 1980 and served in various government agencies.

Lam is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088..

 

Other Committee members

Matthew Cheung Kin-chung
Matthew Cheung Kin-chung
Chief Secretary for Administration

Cheung has been Chief Secretary for Administration since January 2017. He joined the Hong Kong SAR government as an Information Officer in July 1972, and served as Commissioner for Labor (1999-2000), Director of Education (2000-2002), Permanent Secretary for Economic Development and Labor (2002- 2007), and Secretary for Labor and Welfare (2007-2017).

Paul Chan Mo-po
Paul Chan Mo-po
Financial Secretary

Paul Chan was appointed Financial Secretary in January 2017, after serving as Secretary for Development (2012-2017). He is a former President of the Hong Kong Institute of Certified Public Accountants.

Teresa CHENG Yeuk-wah
Teresa Cheng Yeuk-wah
Secretary for Justice
(sanctioned by the U.S.)

Cheng was appointed Secretary for Justice on January 6, 2018. She was a Senior Counsel in private practice before joining the Hong Kong SAR government. She is also a chartered engineer and chartered arbitrator. She is a Fellow of King's College in London and was the Course Director of the International Arbitration and Dispute Settlement Course at the Law School of Tsinghua University in Beijing.

Cheng is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088

John Lee Ka-chiu
John Lee Ka-chiu
Secretary for Security
(sanctioned by the U.S.)

Lee joined the Hong Kong Police Force in 1977 as a probationary inspector and was promoted to the post of Deputy Commissioner in 2010. He became Under Secretary for Security in 2012 and Secretary for Security in 2017.

Lee is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088.

Chris Tang Ping-keung
Chris Tang Ping-keung
Commissioner of Police
(sanctioned by the U.S.)

Chris Tang was appointed Commissioner of Police in November 2019. He joined the Hong Kong Police Force in 1987 as an Inspector of Police. He served as Senior Assistant Commissioner and Director of Operations (2017-2018), Deputy Commissioner of Police (Operations) (2018-2019).

Tang is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088.

Edwina Lau Chi-wai
Edwina Lau Chi-wai
Deputy Commissioner of Police (National Security) &
Head of the Department for Safeguarding National Security of the HKPF
(sanctioned by the U.S.)

Lau joined the Hong Kong Police Force in 1984. She served as Senior Assistant Commissioner of Police and Director of Management Services (2019-2020). She was appointed Deputy Commissioner of Police (National Security) to head the department for safeguarding national security of the Hong Kong Police Force in July 2020.

Lau is among four Hong Kong SAR and PRC officials sanctioned by the U.S. “in connection with implementing PRC-imposed National Security Law and threatening the peace, security, and autonomy of Hong Kong.” The four officials “will be barred from travelling to the United States and their assets within the jurisdiction of the United States or in the possession or control of U.S. persons will be blocked.” See “Designations of Four PRC and Hong Kong Officials Threatening the Peace, Security, and Autonomy of Hong Kong,” U.S. Department of State, November 9, 2020, https://www.state.gov/designations-of-four-prc-and-hong-kong-officials-threatening-the-peace-security-and-autonomy-of-hong-kong/, and “Syria Designations; Syria-related Designations; Hong Kong-related Designations,” U.S. Department of Treasury, November 9, 2020, https://home.treasury.gov/policy-issues/financial-sanctions/recent-actio....

Au Ka-wang
Au Ka-wang
Director of Immigration

Au was appointed Director of Immigration on July 2, 2020. He joined the Immigration Department as an Assistant Immigration Officer in 1988. He served as Immigration Officer (1992-2003), Senior Immigration Officer (2003-2009), Chief Immigration Officer (2009-2014), Assistant Principal Immigration Officer (2014-2015), and Principal Immigration Officer (2015-2018), Assistant Director of Immigration (2018-2019), and Deputy Director of Immigration in (2019-2020).

Hermes Tang Yi-hoi
Hermes Tang Yi-hoi
Commissioner of Customs and Excise

Hermes Tang was appointed Commissioner of Customs and Excise in July 2017. He joined the Immigration Department as an Immigration Assistant in 1985 and the Customs and Excise Department as a Probationary Inspector in 1987. After secondment to the Security Bureau from (2006-2007), he served as Superintendent (2009-2011), Senior Superintendent (2011-2013), Chief Superintendent (2013-2015), Assistant Commissioner of Customs and Excise (2015-2016), and Deputy Commissioner (2016-2020).

Eric Chan Kwok-ki
Eric Chan Kwok-ki
Director of the Chief Executive’s Office
(sanctioned by the U.S.)

Eric Chan joined the Immigration Department in 1982 as an assistant immigration officer, where he served as Deputy Director (2010-2011) and Director (2011-2017). In May 2017, he became the first senior official from the disciplined services to be named as Director of the Chief Executive’s Office, a post usually filled by civil service administrative officers.

Eric Chan is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088.

 

Secretariat

Secretary-General

Eric Chan Kwok-ki
Eric Chan Kwok-ki
(sanctioned by the U.S.)

See above: Other Committee Members.

 

National Security Adviser

Luo Huining
Luo Huining
(骆惠宁)
Director of the Liaison Office of the Central People's Government in the Hong Kong S.A.R. (LOCPG)
(sanctioned by the U.S.)

Luo, a senior member of the Chinese Communist Party, was appointed Director of the Liaison Office of the Central People's Government in Hong Kong (LOCPG) in January 2020. Luo is the only liaison office director with local administration experience at the highest level and is the first liaison office director with no work experience related to Hong Kong. A native of Zhejiang, he was previously the Governor, then Party Secretary of Qinghai Province before being appointed Party Secretary of Shanxi Province.

Luo is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088

 

2. The Office for Safeguarding National Security (OSNS) (NSL, Arts. 48-60)

Zheng Yanxiong
Zheng Yanxiong
(郑雁雄)
Director
(sanctioned by the U.S.)

Zheng is a member of the Standing Committee of the Guangdong Provincial Committee of the Communist Party of China. He became well-known as Party chief in Shanwei, Guangdong, for the crackdown on the 2011 protests by villagers in Wukan seeking compensation for land requisitioned by the government. He was appointed Executive Deputy Secretary-General and Director of the Policy Office of the Guangdong Provincial Committee of the CPC (May-October 2018) and then Secretary-General in October 2018.

Zheng is among 11 individuals sanctioned by the U.S. for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” See “Treasury Sanctions Individuals for Undermining Hong Kong’s Autonomy,” U.S. Department of Treasury, August 7, 2020, https://home.treasury.gov/news/press-releases/sm1088.

Li Jiangzhou
Li Jiangzhou
(李江舟)
Deputy
(sanctioned by the U.S.)

Li was head of the domestic security bureau of the Ministry of Public Security, before starting work at the Liaison Office in Hong Kong in 2016.

Li is among four Hong Kong SAR and PRC officials sanctioned by the U.S. “in connection with implementing PRC-imposed National Security Law and threatening the peace, security, and autonomy of Hong Kong.” The four officials “will be barred from travelling to the United States and their assets within the jurisdiction of the United States or in the possession or control of U.S. persons will be blocked.” See “Designations of Four PRC and Hong Kong Officials Threatening the Peace, Security, and Autonomy of Hong Kong,” U.S. Department of State , November 9, 2020, https://www.state.gov/designations-of-four-prc-and-hong-kong-officials-threatening-the-peace-security-and-autonomy-of-hong-kong/, and “Syria Designations; Syria-related Designations; Hong Kong-related Designations,” U.S. Department of Treasury, November 9, 2020, https://home.treasury.gov/policy-issues/financial-sanctions/recent-actions/20201109.

Sun Qingye
Sun Qingye
(孙青野)
Deputy

Sun is a senior official at the Ministry of State Security.

 

3. The Department for Safeguarding National Security of the Hong Kong Police Force (DSNS) (NSL, Arts. 16, 18)

Edwina Lau Chi-wai
Head of DSNS:
Edwina Lau Chi-wai
Deputy Commissioner of Police (National Security)
(sanctioned by the U.S.)

See Section 1 above: The Committee for Safeguarding National Security.

 

4. The Specialised National Security Crimes Prosecution Division of the Department of Justice (SPD) (NSL, Art. 18)

According to Secretary for Justice Teresa Cheng, the Department of Justice of the

HKSAR has established a specialised prosecution division pursuant to the National Security Law. (See Teresa Cheng, “National Security Law – A New Horizon for the Successful Implementation of ‘One Country, Two Systems’,” China Law Magazine 2020 No. 4, available at: https://www.doj.gov.hk/eng/public/sj/20200824_sj1.html.)

Head of SPD: As of October 15, 2020, there is no publicly available information on the appointment.

 

Annex C: Related Resources
  1. Key government documents
  2. Hong Kong Bar Association statements
  3. Statements by international human rights experts
  4. Explainers and timelines
  5. Books and book chapters
  6. Websites and blogs

1. Key government documents

The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region: EN, CH

Implementation Rules for Article 43 of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, July 6, 2020: EN, CH

Operating Principles and Guidelines for Application for Authorization to Conduct Interception and Covert Surveillance--Issued Pursuant to Section 20 of Schedule 6 of the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region: EN, CH

The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China: EN, CH

Statement by Chief Justice of Court of Final Appeal (on NSL, Art. 44), July 2, 2020.

Chief Justice Geoffrey Ma Tao-li states: “Under Article 44, the Chief Executive shall designate judges at each level of court to handle cases and appeals in relation to the National Security Law. . . . It is important to bear in mind that as far as the designation of judges and the operation of the courts are concerned, these two aspects must be subject to the requirements of the Basic Law. . . . Appointments of judges under Article 88 of the Basic Law are made by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the Chief Justice. This has always been the position in Hong Kong.”

2. Hong Kong Bar Association statements

Statement of the Hong Kong Bar Association on the Hong Kong Government’s Decision to Postpone the Legislative Council Election, August 2, 2020.

The HKBA raises serious doubts about the legal and evidential basis of the Hong Kong government’s decision, citing public health risks, to postpone the LegCo election by one year instead of a shorter period, and without consulting civil society. The statement highlights that “international human rights experts have repeatedly warned that governments must not use COVID-19 as a pretext to suppress human rights.”

Statement of the Hong Kong Bar Association on the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, July 1, 2020.

The HKBA expresses grave concerns regarding the NSL: provisions that are inconsistent with the Basic Law, the lack of meaningful public consultation before its promulgation, and the absence of a legally authoritative English version. These and other factors, the HKBA states, “operate to erode the high degree of autonomy guaranteed to the HKSAR under the Basic Law and Sino-British Joint Declaration, and to undermine core pillars of the One Country Two Systems model.”

3. Statements by international human rights experts

Seven UN experts’ communication to China urging review and reconsideration of National Security Law to comply with international law, September 1, 2020: EN

Seven UN Special Procedures mandate-holders highlight the NSL’s vague and overbroad provisions and the lack of transparency and accountability of the NSL security entities. They urge the Chinese government to review and reconsider the NSL to ensure China’s compliance with international human rights obligations in respect of Hong Kong under the UDHR, ICCPR, the 1984 Sino-British Joint Declaration, and the Basic Law.

Statement by Spokesperson for the UN High Commissioner for Human Rights on the National Security Law, July 3, 2020: EN, CH

The spokesperson states: “We are alarmed that arrests are already made under the [NSL] . . . when there is not full information and understanding of the scope of the offences.” Among the concerns expressed are the vague and overly broad definition of the offenses which “may lead to discriminatory or arbitrary interpretation and enforcement”; and the “collusion” offense which “may lead to a restriction of civic space and of the possibility for civil society actors to exercise their right to participate in public affairs.”

4. Explainers and timelines

Transforming Hong Kong: 100 days of the National Security Law
Mercator Institute for China Studies, October 7, 2020.

A brief timeline that maps the developments during July 1–October 1, highlighting the actions of governments of the People’s Republic of China and the Hong Kong SAR as well as those in the opposition movement, civil society, courts and the legal sector, diplomatic and international community, and the business and financial sector.

Explainer: How Beijing’s security law transformed Hong Kong – month 3
Hong Kong Free Press, September 30, 2020.

Maps key developments including the detention of the “Hong Kong 12,” UN human rights experts’ communications expressing concerns about the NSL’s violations of international legal obligations, and the NSL’s impact on press freedom.

Hong Kong national security law: 26 arrests so far, resignation of a foreign judge, and suspension of a middle school pupil mark third month
South China Morning Post, September 30, 2020.

In the third month of the NSL, Justice James Spigelman, a non-permanent foreign judge on the Court of Final Appeal, resigned two years before schedule due to “the content of the national security legislation”; while a middle school pupil was suspended after using a profile picture with the protest slogan “Liberate Hong Kong; revolution of our times” in an online class.

How Hong Kong’s national security law compares to Macau’s: different reasons, eras for legislation
South China Morning Post, July 8, 2020.

Covers developments during September, including the resignation of an Australian veteran judge of the Court of Final Appeal, the arrest of activist Tam Tak-chi by the national security unit under the sedition law, and Chief Secretary Matthew Cheung Kin-chung’s defense of the NSL at the 45th Session of the UN Human Rights Council.

Arrests and trials of Hong Kong protesters
Compiled by author Kong Tsung-gan.

Tracks the total number of protesters arrested and prosecuted since August 2019, with the names and brief information of those arrested. Updated frequently.

5. Books and book chapters

Cora Chan and Fiona de Londras, eds., China’s National Security: Endangering Hong Kong’s Rule of Law?, Hart Publishing, March 2020.

A collection of 17 essays by legal experts including Albert Chen, Hualing Fu, Johannes Chan, Michael C. Davis, and Simon Young. In their introductory essay, “China’s National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law,” Chan and de Londras articulate a vision for sustainable security in Hong Kong. They propose the construction of a new institutional architecture that is rights-based and addresses rule of law concerns aimed at achieving four key aims: effectiveness, accountability, transparency, and participation. In this new architecture, Chan and Londras urge the inclusion of features including limiting the National People’s Congress Standing Committee’s powers to interpret the Basic Law, universal suffrage for election of Chief Executive and LegCo, a human rights institution for Hong Kong, and so on.

Michael C. Davis, Making Hong Kong China: The Rollback of Human Rights and the Rule of Law, Association for Asian Studies, October 2020. (Read opening chapter at: https://www.demdigest.org/making-hong-kong-china/)

The book traces the loss of Hong Kong's autonomy from the handover forward, highlighting the root causes, evolving erosion and eventual assault on the rule of law and basic freedoms, as reflected in the 2019 crackdown on protesters and the current imposition of the National Security Law.

Hualing Fu, “National Security Law: Challenges and Prospects,” in Johannes Chan and C.L. Lim, eds., Law of the Hong Kong Constitution, 3rd edition, Sweet & Maxwell Asia Ltd, forthcoming in 2021.

Fu examines the status of the NSL compared with that of the Basic Law, the offenses it targets, and the new entities it created and their powers. Fu concludes: “It would be hard to overstate the constitutional significance of the NSL as regards the Basic Law for through this piece of legislation the CPG has gained bridgehead inside the Hong Kong legal system to exert a comprehensive control. . . . The NSL poses a challenge to Hong Kong with the potential to undermine the OCTS. Yet the NSL also creates the possibility of its own limitations, allowing it to operate under the constraints of the existing constitutional framework.”

Hualing Fu, “China’s Imperatives for National Security Legislation,” in Cora Chan and Fiona de Londras, eds., China’s National Security: Endangering Hong Kong’s Rule of Law?, Hart Publishing, March 2020

Fu discusses China’s new national security regime underpinned by legality and the creation of a new legal framework to securitize the Chinese state, including Hong Kong. Fu posits how Hong Kong is seen as a national security risk by China especially with the sudden rise of a secessionist movement and localism in recent times. Writing before the enactment of the NSL in Hong Kong, Fu highlights how the introduction of a national security legislation in Hong Kong is one of many options to address prevailing security concerns, but one that potentially has significant impact on rights and freedoms of Hong Kong.

6. Websites and blogs

NPC Observer

Covering legislative developments of the National People’s Congress and its Standing Committee with a summary of Hong Kong’s National Security Law.

Jerome A. Cohen’s blog

On recent developments on the rule of law in Asia and China, including a series of articles on Hong Kong under the National Security Law.

  • Credit: Studio Incendo
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