Hualing Fu on Managed freedom in precarious times: Maintaining academic freedom in transitional Hong Kong (GlobCon)

"Managed freedom in precarious times: Maintaining academic freedom in transitional Hong Kong"
Hualing Fu
Global Constitutionalism
Published online: January 2025

Abstract: This article examines the status of academic freedom in Hong Kong in light of the increasing securitization of higher education since the implementation of the National Security Law (NSL) in 2020. It provides an analytical framework to comprehend the changing landscape of academic freedom in Hong Kong, highlighting the impact of the NSL and the conflict between the necessity of political control on securitized campuses and the demand for international, free, and high-quality universities to make Hong Kong a global hub for higher education. The article concludes by asserting that the NSL has reshaped and will continue to impact academic freedom and university autonomy concerning core security issues, but there is still a possibility to establish a defendable space for genuine academic freedom in classrooms.

"Reining in Tech Platforms" (Marcelo Thompson Profiled in HKU Bulletin)

"Reining in Tech Platforms"
Marcelo Thompson
HKU Bulletin
Published in May 2024

Fake news and misinformation are easily published and circulated on platforms such as Google, Facebook and YouTube. There are moves to make these media responsible for the message they convey.

In 2022, US courts ordered American talk show host and conspiracy theorist Alex Jones to pay more than US$1 billion in damages to the parents of several of the 20 children murdered at Sandy Hook Elementary School by a gunman in 2012. Jones had been claiming online since 2014 that the deaths were a ‘hoax’ and the parents ‘crisis actors’ and, until 2018, platforms such as Facebook and YouTube allowed his content to be posted and shared. They removed him that year for a range of offensive content, but the question lingered: what obligation did those platforms have to keep such fake and harmful information out of the public arena?

To Dr Marcelo Thompson, Adjunct Associate Professor in the Faculty of Law, the answer is clear – platforms must do more to moderate their content. Unfortunately, while many platforms are global and their content circulates worldwide, the laws that govern them are set locally, impeding convergence, he said.

Click here to read the full text.

HKU Law Scholars Make Submissions on the 2024 Article 23 Bill and Consultation Paper

In January 2024, the Security Bureau of the HKSAR Government released its long-awaited Public Consultation Document on Basic Law Article 23 national security law proposals (“Safeguarding National Security: Basic Law Article 23 Legislation”). On 8 March 2024, the Safeguarding National Security Bill was presented to the Legislative Council for first and second reading.  Scholars in the Faculty of Law have prepared written submissions (and articles) on the proposals contained in the consultation paper and bill. This commentary can be accessed below.

Albert Chen: Ming Pao 1, Ming Pao 2

Simon NM Young: Submission on the Bill (Chinese Translation on HK01), Submission on the Consultation Paper (Chinese Translation on HK01).  In anticipation of the passage of the Safeguarding National Security Ordinance, Professor Young shared these comments on the new law with various media outlets:

"The Safeguarding National Security Ordinance is plainly intended to deter people from taking any step that might put national security at risk. It achieves this with tough sanctions and special restrictive procedures if one gets caught up in the system. It completes the national security ecosystem which began with the 2020 National Security Law making the system now intensely robust. Once the law is passed, the Central Government will rest assured that there are comprehensive and suitable measures in place in Hong Kong to suppress any threats, whether they be external or internal, to the stability and safety of the country.

For most Hong Kong people, the new law will have little relevance and impact on their daily lives. There are four categories of persons who are likely to be impacted and will need to take more care and be familiar with the requirements and contours of the new law. They are as follows: (a) public officers; (b) government contractors; (c) those who have regular dealings with external forces; and (d) those already within the system or within the radar of the national security authorities.

For categories (a) and (b), the new provisions on state secrets and espionage will need to be closely studied. Category (c) could include a wide range of persons and companies, including academics and journalists. For the most part, the cooperation that tends to happen with external forces already will not lead to any liability under the new law. But if the cooperation tends towards advocating for policy or legal changes in Hong Kong or is simply critical of the Hong Kong or Central governments, then the new offences of espionage and external interference may well be applicable.

As for (d), there would be different sub-categories of persons depending on how far one is within the system. If one is already serving a sentence for a national security offence, unfortunately the time they need to serve will effectively be extended unless they can demonstrate no risk to national security if released with remission. For those facing charges, there will no longer be the option of a suspended sentence of imprisonment. Those who are arrested for a national security offence will also face a more restrictive set of procedures in relation to pre-charge detention, restrictions on accessing a lawyer, a greater hurdle in obtaining bail, and restrictions on movement if granted bail.

As for the legislative process, the Administration invested much effort and labour at the front-end of the exercise in preparing both the Consultation Paper and Bill. There was a dedicated team in Government, including the Secretary for Justice and Secretary for Security, who dutifully attended the long and intensive meetings held in LegCo. The Bills Committee members asked questions about all aspects of the Bill and replies were given. The questions tended towards having the Bill clarified or loopholes closed. The Government agreed with some of these comments and came up with proposed amendments. I would not say it was a rubber-stamping exercise. But fewer comments from legislators were directed to making the law less restrictive; hence we do not see any proposed amendments to this effect. In the past, LegCo Bills Committee meetings, on politically sensitive topics, would be much more fractious, with filibustering and other obstructions to the proceedings. Hence proceedings would have been much longer. Sadly some of the antics in the past would have drown out the more constructive yet critical comments that more moderate opposition legislators were making. In the past, the Bills Committee might also have called for deputations from experts in the community including from the legal profession and law schools. It is regrettable that this was not done on this occasion. I believe legislators would have benefited from such expert input given that the issues involve technical and complex questions/implications of criminal law, procedure and evidence."

Pui-yin Lo on Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong (HKLJ)

Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong
Pui-yin Lo

in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp.913-936

Abstract: Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in mid-2020, been vigorously enforced as an “offence endangering national security” within the meaning of the NSL by the National Security Department of the Hong Kong Police Force and the Department of Justice. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the NSL in order to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of sedition-like offences from other common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the NSL could be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights Ordinance (Cap 383), and accordingly there is nothing to be revived for enforcement; (2) remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalising speech and expressive acts merely and plainly for their ascribed “intentions” and (3) several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the NSL’s system of enforcement against persons alleged to have committed acts under those categories of “seditious intention”.

Henry Litton on The Case of the Wolf and the Sheep in Hong Kong (Pearls and Irritations)

The Case of the Wolf and the Sheep in Hong Kong
Henry Litton

Pearls and Irritations

27 Nov 2022

Recently, a correspondent on Australia’s national broadcaster casually referred to Hong Kong as a “police state”. This ignores that the courts operate under common law rules. The role of the judge is key. They are not mouth-pieces of the central government. In HKSAR v Lai Man-ling & 4 Others, Hong Kong’s image overseas has been tarnished by a decision to convict people for writing a children’s book, a judgement which no one can understand and which was wrong.

Radio National is Australia’s national broadcaster, exercising wide influence.

In commenting on the outcome of the recent 20th Party Congress whereby Mr Xi Jinping’s term as General Secretary of the Chinese Communist Party was extended for another five years, the correspondent casually referred to Hong Kong as a “police state”. This was not an isolated incident. Many Western media outlets, in commenting on criminal convictions by the Hong Kong courts in national security-related cases, have categorised those courts as mouth-pieces of the Central Government, ignoring the fact that the courts operate under common law rules and principles. To dispel such misconceptions – or to quash such bias – it is of importance that in reaching their verdicts courts should make their reasons clear, intelligible and transparent.

HKSAR v Lai Man-ling & 4 Others [ Criminal Case No.854/2021, 10/9/2022 ]

This brings into prominence the case where five university-trained speech therapists were convicted of conspiracy to publish and distribute seditious publications and sentenced to 19 months’ imprisonment. These were books of cartoons with accompanying commentary. The story line concerned wolves subjugating a village of sheep. The case has attracted worldwide attention. The District Judge’s Reasons for Verdict is 68 pages long, with 47 footnotes: dead on arrival for the average reader... Click here to read the full article.

Albert Chen on "A 'Post-National Security Law Era' Narrative for Hong Kong", Preface to Loh and Cullen's New Book in Chinese

"A 'Post-National Security Law Era' Narrative for Hong Kong"

Albert H. Y. Chen

Preface to Hong Kong in China—Rethinking the Hong Kong–Mainland Relationship (in Chinese)

<<香港在中國—重新思考內地與香港關係>>, by 陸恭蕙 (Ms Christine Loh) 高禮文 (Professor Richard Cullen) , 譯 魏磊傑, City University of Hong Kong Press, published in 2021

This is the English translation of the Preface written by the author for the Chinese book, 陸恭惠、高禮文（著）、魏磊傑（譯）：《香港在中國：重新思考内地與香港關係》，香港城市大學出版社2021年版. This Chinese book is the translation of Christine Loh and Richard Cullen, No Third Person: Rewriting the Hong Kong Story （Hong Kong: Abbreviated Press, 2018. A revised edition of this English book was published in 2021 under the title Hong Kong in China: Rethinking the Hong Kong – Mainland Relationship.

     What is "one country, two systems"? How should we understand the relationship between the "high degree of autonomy" of the Hong Kong Special Administrative Region (HKSAR), state sovereignty and the central authorities’ “comprehensive jurisdiction” over the HKSAR? What should be the identity of Hong Kong people? What kind of discourse or narrative should there be about the "Hong Kong Story"? How should Hong Kong’s past be understood? What kind of future will Hong Kong have? How could the path of "one country, two systems" proceed?

     In the "post-National Security Law era", this series of issues is more urgent than at any other time in history, and they are causing anxiety among many Hong Kong people. Although this book was written before the enactment of the HKSAR National Security Law, it has fleshed out these issues and provided preliminary answers to them.

     In fact, I believe that in the "post-National Security Law era", this book is more meaningful, valuable and enlightening to us than it was at the time of its writing. The authors are Christine Loh and Richard Cullen. Loh is a public figure in Hong Kong, having served as a member of the Hong Kong Legislative Council before and after reunification, and as Undersecretary for the Environment of the HKSAR Government. Loh is also a scholar and has written many books. Cullen, from Australia, has taught at the School of Law of City University of Hong Kong for many years, and in recent years at the Faculty of Law of The University of Hong Kong. Both authors are intellectuals who have long lived in Hong Kong, served Hong Kong and love Hong Kong. This book is the culmination of years of their reflections on Hong Kong's situation under "one country, two systems", and on the "Hong Kong story".

      The authors point out in this book that there needs to be a common understanding of Hong Kong's identity, status, future and destiny. They propose a new "narrative" of the "Hong Kong story". They point out that Hong Kong's identity and destiny should not be pinned on its becoming a Western-style democracy and the realization of the so-called "double universal suffrage". This is because Hong Kong is not a country but an inalienable and integral part of the Chinese motherland; Hong Kong cannot and must not become an independent political entity that considers itself separate from China. On the contrary, Hong Kong people must get to know the motherland and try to understand the role that Hong Kong can play in China’s development.

     "Pan-democratic" politicians devote all their energies to building a Western-style democracy in Hong Kong, but this is not Hong Kong's destiny. On the other hand, this does not mean that Hong Kong should become another Chinese city exactly like other big cities in the mainland. The authors point out that in its history, Hong Kong has been the meeting point of Chinese and Western cultures, and the confluence of these cultures has enabled Hong Kong to become a Chinese society in which many modern ideas and practices that originated in the West have taken roots. Hong Kong is thus a most valuable asset to the motherland; as a highly cosmopolitan city, Hong Kong's future remains unbounded. Under the constitutional framework of "one country, two systems", the mainland and Hong Kong systems can co-exist, cooperate, make up for each other's shortcomings, and prosper together in creating a better tomorrow for the motherland.

     I think this book contributes much insight for us in this "post-National Security era". Some people think that the enactment of the National Security Law marks the end of “one country, two systems”; I disagree. Article 23 of the Basic Law of the HKSAR has originally made it very clear that it is the constitutional responsibility of the HKSAR to enact laws prohibiting acts that endanger national security, such as treason, secession, subversion of the Central People's Government (CPG) and sedition. After the bill to implement Article 23 was shelved in 2003 following the July 1 protest and up until the anti-extradition law movement of 2019, the CPG never instructed the Chief Executive of the HKSAR to re-introduce the Article 23 legislation.

    At the end of 2007, the Standing Committee of the National People's Congress (SCNPC) set a timetable for the introduction of universal suffrage for the election of the Chief Executive (stipulating the target date of 2017). Contrary to some people’s suggestion, it did not require Hong Kong to put in place Article 23 legislation as a prerequisite for the introduction of universal suffrage. It can therefore be seen that the CPG was very liberal in its Hong Kong policy at that time, and did not consider the Article 23 legislation to be urgently needed.

      It was the “black violence” arising from the anti-extradition law movement in 2019 that finally led the CPG to believe that, without laws to safeguard national security, it would be difficult to bring Hong Kong out of chaos and restore order and stability. But by this time, it was clear that the crisis of governance precipitated by the riots of 2019 was such that it was totally unrealistic to expect the HKSAR government to legislate successfully to implement Article 23. In these circumstances, the CPG and the SCNPC decided to enact a National Security Law for the HKSAR. As CPG officials have repeatedly stressed, the National Security Law only establishes the bottom line of the “one country” element of "one country, two systems", that is, minimum requirements such as "no secession" and non-subversion of state power. As long as the bottom line is not transgressed and the minimum requirements are met, Hong Kong people still retain a wide range of freedoms, and the "two systems" in "one country, two systems" are still alive.

     In fact, since the "Occupy Central Movement” in 2014, the project of "one country, two systems " in Hong Kong went off the rails. The “August 31 (2014) Decision” of the SCNPC aimed to introduce a viable universal suffrage model in accordance with Article 45 of the Basic Law (which expressly provides for nomination by a Nomination Committee of candidates for Chief Executive election by universal suffrage) as well as the 2007 Decision of the SCNPC on the timetable for universal suffrage in the election of the Chief Executive. The model was designed to enable Hong Kong people to elect the Chief Executive by universal suffrage, while ensuring that the elected Chief Executive would be a patriot whom the CPG was willing to appoint as Chief Executive. I believe that this electoral model was well-intentioned. However, opposition politicians considered that it was not in line with their idea of Western-style democratic universal suffrage, and firmly opposed it. This opposition evolved into the "Occupy Central Movement".

     In 2015, the electoral reform proposed by the HKSAR government on the basis of the “August 31 Decision” was rejected by the Legislative Council as the reform failed to secure the requisite two-thirds majority. The 2016 Legislative Council elections saw the rise of the “localists”. Two of them, after being elected into the Council, used the occasion of the taking of their oaths of office to promote “Hong Kong independence”. In order to clarify the oath-taking requirement, the SCNPC promulgated an interpretation of Article 104 of the Basic Law on the taking of the oath of office, which requires legislators to support the Basic Law and pledge allegiance to the HKSAR of the People's Republic of China. The failure of some “localist” legislators to take their oath properly led to their being disqualified in accordance with relevant judicial decisions.

     Some critics saw this development as a sign of the CPG’s narrowing of the space for "one country, two systems". But the reality was that there were no Hong Kong independence advocates entering the Legislative Council before 2016, so there was no need for the CPG to intervene and to interpret the oath-taking requirement. In my view, the 2016 SCNPC interpretation did not amount to a deliberate tightening of the CPG’s policy towards Hong Kong. Rather, it was a response on the part of the CPG to what it considered to be a rapidly deteriorating political situation in Hong Kong, and it did no more than setting the necessary bottom line that the CPG considered tolerable.

     The proposed amendment of the Fugitive Offenders Ordinance in 2019 was also regarded by some members of the community as a manifestation of the CPG's tightening of the "one country, two systems" policy; and they believed that, if the amendment were successful, any Hong Kong person could be extradited to the mainland for trial on suspicion of breaking the law. Although many people in the “yellow” camp held that view, I disagree with them. The reason for the proposed amendment was the Chan Tong-kai case, in which Chan was suspected of (and subsequently confessed to) killing his girlfriend in Taiwan. If there was no such case, there would not have been an extradition bill. After Chan's return to Hong Kong, the Taiwan authorities requested his extradition. However, the existing Hong Kong law did not allow extradition between Hong Kong and any other region of China, and Taiwan is a region of China under Hong Kong law. Therefore, the HKSAR Government proposed to amend the provisions of the existing Fugitive Offenders Ordinance to establish a "case-by-case" (rather than treaty-based) extradition mechanism which could be applied as between Hong Kong and any jurisdiction that did not have an extradition treaty with Hong Kong, including more than 100 countries, mainland China, Macau and Taiwan. The proposed extradition arrangement would apply only to serious criminal offences, and the principle of non-extradition of political offenders and other safeguards in the existing legislation would remain unchanged. This proposed amendment was put forward by the HKSAR Government on its own initiative; it was not a piece of legislation that the CPG required or instructed the HKSAR government to enact. It is noteworthy that in the Macau SAR, there was also no law that enabled extradition as between Macau and the Chinese mainland.

     Extradition is a globally accepted arrangement for international cooperation in fighting crime, aimed at ensuring that persons who commit crimes in one country can still be brought to justice when they flee to another country. It was a misperception that the purpose of the 2019 amendment was to reduce the freedom and human rights of Hong Kong people, and that the amendment was an “evil law”. Furthermore, in mid-June 2019, a few days after the anti-extradition law movement escalated into a violent confrontation between the police and demonstrators, the HKSAR Government announced that it would shelve the legislative exercise indefinitely, and subsequently announced the withdrawal of the bill altogether. But the movement and civil unrest continued, with more and more violence and rioting that lasted for several months. This was completely beyond the original scope of the campaign to oppose the extradition bill.

     Events from the "Occupy Central Movement" to anti-extradition law, and from anti-extradition law to large-scale and prolonged “black violence”, showed that the project of "one country, two systems " had been seriously derailed. Some people say that the National Security Law is only "rule by law" rather than "the rule of law". I think that if we want to "cure the disease" rather than merely to deal with its symptoms, we must re-invent the discourse or narrative of "one country, two systems". This is exactly the subject explored in this book. As the authors point out, if Hong Kong is to have a new discourse, a new narrative and a new self-awareness of "one country, two systems", and if past mistakes or deviations are to be rectified, we must first understand the reality of Hong Kong as part of China.

     Hong Kong is part of China, and China is a great power in the world today, and an important member of the international community. China's relationship with other countries largely determines Hong Kong's relationship with other countries. During the 2019 anti-extradition law movement, there were scenes of countless American flags being displayed or waved during demonstrations; some people actually believed that they could rely on foreign forces to support their political demands on the Hong Kong government.

     As we all know, the relationship between China and the United States is not only competitive, but has also become more confrontational in recent years. A situation of a "New Cold War” seems to be emerging. Hong Kong people will have to choose either to side with China or with the United States. Most of us Hong Kong people are Chinese citizens, and of course we should be on China's side. Any discourse or narrative of Hong Kong under “one country, two systems” must take this as its point of departure, and this is also the view of the authors of this book.

     I sincerely hope that in the coming days, Hong Kong society will return to rationality, mend the relationship between Hong Kong and the mainland, and re-invent a healthy discourse or narrative about Hong Kong under "one country, two systems" that can foster a “win-win” scenario for Hong Kong and the Mainland. This, I believe, is the only way in which we, the people of Hong Kong and our next generation, can continue to live and prosper in Hong Kong – this beloved home of ours.

Professor Albert H.Y. Chen

Faculty of Law, University of Hong Kong

July 2021

 

Simon Young on Constitutional Review of Hong Kong's National Security Law (LAWFARE)

"Hong Kong’s Highest Court Reviews the National Security Law—Carefully"

Simon Young
LAWFARE blog

Published on 4 March 2021

Since its establishment in 1997, Hong Kong’s apex court, the Court of Final Appeal, has demonstrated a strong approach to constitutional review in human rights cases. It has struck down laws and executive acts found to be in violation of protected fundamental rights and freedoms. But in the wake of Hong Kong’s new National Security Law, is that changing?

     In HKSAR v. Lai Chee Ying (2021) HKCFA 3, the court ruled it had no jurisdiction to constitutionally review the controversial National Security Law (NSL), which created new national security offenses in Hong Kong punishable by up to life imprisonment, a high-level security committee, new law enforcement bodies, and new police powers including surveillance powers without judicial authorization. The court’s decision meant it could not consider whether any NSL provision was incompatible with Hong Kong’s constitution, known as the Basic Law, or the Hong Kong Bill of Rights (HKBOR), which implements the International Covenant on Civil and Political Rights (ICCPR) and has constitutional status.

     The court could have taken several different approaches to the constitutional review of the NSL. It chose an option that, on its face, appeared conservative and weak. But in the current political environment, the court’s approach was a wise strategic decision: It preserved the court’s judicial independence, enabled the continued protection of fundamental rights by common law principles and fended off the risk of executive backlash... Click here to read the full text. 

Anna Dziedzic on Foreign Judges and Hong Kong’s New National Security Law (Commonwealth Judicial Journal)

“Foreign judges and Hong Kong’s New National Security Law”
Dr Anna Dziedzic

Commonwealth Judicial Journal

2020, Vol 25, Issue 2, pp. 27-33

Abstract: Foreign judges have had a longstanding role on Hong Kong’s Court of Final Appeal. In 2020, this tradition faced significant challenges as the People’s Republic of China enacted a new National Security Law for Hong Kong. This article examines the implications of the new law for the foreign judges on Hong Kong’s Court of Final Appeal. It tracks the debates about the potential exclusion of foreign judges from hearing national security cases and the difficult question of judicial resignations. The article explains how these issues take on greater significance because of the distinctive rationale for the use of foreign judges in Hong Kong, where foreign judges are understood to signify the distinctiveness of Hong Kong’s legal system as well as its quality.

New Book: Archbold Hong Kong 2021 (Sweet & Maxwell)

ARCHBOLD HONG KONG 2021

Editor-in-Chief: The Hon Mr Justice Bokhary

General Editor: Professor Simon Young

Sweet & Maxwell

December 2020

Preface by the General Editor

Archbold’s first general editor was John Frederick Archbold. By analogy, Archbold Hong Kong’s first general editor would be considered Hong Kong’s Archbold. Sadly Hong Kong’s Archbold passed away on 28 April 2020. This is a fitting title for Dr Gerard McCoy SC. His encyclopedic knowledge of the law, especially the criminal law, was well known and undoubtedly a matter of judicial notice in many countries. Mr Justice Frank Stock, in his preface to the first edition of this work, described Dr McCoy as “a tireless worker, possessed of a meticulous eye and as well-versed in the principles and detail of the criminal law as one could wish”. Though he appeared for government in a good number of cases, he had a big heart for the underdog and an unrelenting sense of justice. He was also very much reform-minded, which I witnessed having the honour of working with him on two law reform committees and two landmark Court of Final Appeal cases on joint criminal enterprise and refugee non-refoulement. In court, he was as distinguished as any silk who has ever practiced in this jurisdiction, but he was also a compassionate leader who could instantly dissolve the nerves of a junior at the start of a hearing by offering a fist bump with the words ‘Go Team’. He was a lawyer’s lawyer, one who would not hesitate to offer advice, or a case reference, to any fellow member of the bar who sought his assistance. In his practice, he continuously prodded the law, and for that we got to learn so much more about the law, whatever may have been the result in the case. One need only have regard to the cases he handled in his last year to appreciate his unparalleled contribution to the criminal law in Hong Kong. Those cases enhanced our understanding of the right to interpreter assistance in criminal trials (CACC 135/2017; CACC 320/2016), the right to privacy and police searches of mobile phones (CACV 270/2017); remedial interpretation of the Interception of Communications and Surveillance Ordinance (CACC 237/2015), the rule in Browne v Dunn (CACC 65/2017), and the constitutionality of sentences for male buggery offences (CACC 361/2018). This is only a small sample of a corpus of law which he helped to generate. 

    In his preface, echoing the words of Archbold, Dr McCoy wrote that this work would aim “to become ‘a practically useful book’ which identifies and collates the current substantive, procedural, evidential and adjectival criminal law of Hong Kong”. In this spirit, the current edition collates the contents of 《中華人民共和國香港特別行政區維護國家安全法》(Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region), which was applied locally on 30 June 2020. This National Security Law (NSL) is the most important piece of criminal law legislation applied in Hong Kong in recent times, and practitioners are slowly coming to terms with it. The NSL is currently covered across Chapters 2, 5, 15, 19, 26, 41 and 42, but for the future the aim is to capture NSL jurisprudential developments mainly in Chapter 26, concerned with national security offences.

    Hong Kong’s Archbold ended his preface with the four Chinese characters, 金科玉律, which was likely a reference to Viscount Sankey’s “one golden thread” famously penned in Woolmington v DPP [1935] AC 462, 481. It is a fitting reminder that even in the post-NSL era persons charged with a criminal offence are always presumed innocent, the duty being on the prosecution to prove the person’s guilty beyond a reasonable doubt.

    I thank my three able assistant editors (Wilson Lui, Eric Chan, Josh Baker), the entire team of contributing editors who remain so dedicated to this work, the Editor-in-Chief for his wise counsel, and Thomson Reuters (Kevin Stokes, Stephen Blackwell, Abdul Azeem Ali) for all their assistance over the past year.

Professor Simon NM Young

Parkside Chambers

October 2020

HKU Law academics serving as Contributing Editors in this year's volume include Amanda Whitfort (1. The Indictment; 46. Animals), Simon Young (11. The Hearsay Rule; 19. Human Rights), and Michael Jackson (17. Principals and Secondary Parties; 18. Strict Liability).

HKU Law's National Security Law Webinar Series 2020

10. Making Hong Kong China - The Rollback of Human Rights and the Rule of Law (7 Nov 2020)

  

Date: 7 Nov 2020 (Saturday)
Time: 9:30am – 11:00am

About the Author
Professor Michael C. Davis is in the Fall of 2020 a Visiting Professor in the Faculty of Law at the University of Hong Kong where he teaches core courses on international human rights. He is also currently a Global Fellow at the Woodrow Wilson International Center for Scholars in Washington DC and a Professor of Law and International Affairs at O.P. Jindal Global University in India (where he is in residence each spring). He was a professor in the HKU Law Faculty until late 2016.

Discussants
Professor Andrew Nathan – Class of 2019 Professor of Political Science, Columbia University. Nathan has served on the advisory boards of Freedom House, Human Rights in China, the National Endowment for Democracy and Human Rights Watch, Asia.

Ms Sharon K. Hom – is Executive Director of Human Rights in China (HRIC). She is a Professor of Law Emerita at the CUNY School of Law, an Adjunct Professor of Law at New York University School of Law (2017- present), and a Visiting Professor at The University of Hong Kong Faculty of Law (2019).

Moderator
Dean Fu Hualing – Warren Chan Professor in Human Rights and Responsibilities, Faculty of Law, The University of Hong Kong

9. The Joint Declaration and the National Security Law: An International Law Analysis (24 Oct 2020)

This seminar discusses the international law implications of the Hong Kong National Security Law (NSL), in particular the relationship between the NSL and the Sino-British Joint Declaration and the legality of foreign interventions following the enactment of the NSL. 

Moderator
• Hualing Fu
Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law

Speakers
• Chin Leng Lim
Choh-Ming Li Professor of Law, The Chinese University of Hong Kong; Honorary Senior Fellow of the British Institute of International and Comparative Law; Visiting Professor, King’s College London
• Albert H.Y. Chen
Cheng Chan Lan Yue Professor in Constitutional Law, HKU Faculty of Law; Member, the HK Basic Law Committee of the National People’s Congress Standing Committee
• John Anthony Carty
Professor, Beijing Institute of Technology School of Law

8.  Book Talk: China's National Security Endangering Hong Kong's Rule of Law? (28 Sept 2020)

This event marks the publication of Chan and de Londras (eds), China’s National Security: Endangering Hong Kong’s Rule of Law? and places the book—written in 2019—into the context of events since its publication, including notably the passage of the Hong Kong National Security Law. In this collection, contributing authors explored the potential and limits of Hong Kong’s laws, institutions and civil society in maintaining the rule of law in light of China’s national security imperatives. The collection was published shortly before the Chinese government introduced the Hong Kong National Security Law. In this event, some of the authors in the collection will reflect on to what extent are the safeguards identified in the book displaced or rendered ineffectual by recent events, and whether China’s national security law endangers Hong Kong’s rule of law. 

Chairs 

Ms Cora Chan, The University of Hong Kong 

Prof Fiona de Londras, University of Birmingham; Hon Prof, Australian National University

Keynote 

Prof Victor V. Ramraj, University of Victoria 

Speakers/ Authors 

Dr Paulo Cardinal, University of Macau 

Prof Lin Feng, City University of Hong Kong 

Dr Pui Yin Lo, Barrister-at-law 

Prof Carole Petersen, University of Hawaii at Manoa 

Prof Simon Young, The University of Hong Kong 

7. Roundtable “One Country, Two Systems” after the National Security Law Reflections (26 Sept 2020)

Date: 26 Sep 2020 (Saturday)
Time: 09:45am – 11:45am

This seminar will discuss some “big picture” questions surrounding the Hong Kong National Security Law (NSL) and “One Country, Two Systems”(OCTS). What are the scenarios or options the HKSAR faces in the post-NSL era? What should HK society and the central authorities do to reduce tension, restore confidence and narrow the gap in the political divide? Is Hong Kong stuck due to a “Basic Law design flaw” and, if so, what is the design flaw and what are the remedies or solutions? Panel members will discuss these issues of concern from constitutional, legal and political perspectives. Our aim is to stimulate and promote continuing discussion and dialogue.

Moderator 主持
• Hualing Fu 傅華伶
Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law
香港大學法律學院院長、陳志海人權與義務基金教授

Speakers 講者:
• Xingzhong Yu 於興中
Anthony W. and Lulu C. Wang Professor in Chinese Law, Cornell Law School
康奈爾大學法學院中國法講座教授
• Jie Cheng 程潔
Associate Professor, Peter A. Allard School of Law, The University of British Columbia
加拿大英屬哥倫比亞大學法學院副教授
• Yan Xiaojun 閻小駿
Associate Professor, Department of Politics and Public Administration, HKU
香港大學政治與公共行政學系副教授

Commentator 評議:
• Albert H.Y. Chen 陳弘毅
Cheng Chan Lan Yue Professor in Constitutional Law, HKU Faculty of Law
香港大學法律學院鄭陳蘭如基金憲法學教授
Member, the HK Basic Law Committee of the National People’s Congress Standing Committee
全國人大常委會香港基本法委員會委員

6. Freedom of the Press under the National Security Law in Hong Kong (5 Sept 2020)

 

Date: 5 Sept 2020 (Saturday)

Time: 15:00-17:00

Abstract：

The promulgation of the Hong Kong National Security Law (NSL) has sparked local and international concerns about the law’s impact on freedom of speech and of the press in Hong Kong. However, Article 4 of the NSL stipulates that “The rights and freedoms, including the freedoms of speech, of the press, of publication…. which residents of the Region enjoy under the Basic Law… and the provisions of the International Covenant on Civil and Political Rights and the International Covenants on Economic, Social and Cultural Rights as applied to Hong Kong shall be protected in accordance with the law.” How would the law be implemented in ways that would honour the pledges in Article 4? What are the comparative experiences of Singapore and other countries with long histories of authoritarian control of the news media? What are the rooms for free expression under the new law? In this webinar, three experts will share their insights on these questions.

Moderator:
Hualing Fu, Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law

Discussant: Christine Loh
Professor Christine Loh is the Chief Development Strategist of the Institute for the Environment, HKUST. She is a former legislator and former undersecretary in the HKSAR Government. She is a lawyer by training and commodities trader by profession. She is the author of many academic and popular works; and is active in various for profit and non-profit organisations.

Speakers:
“Freedom of Expression: Standards and Protections under the ICCPR”
Sharron Fast, Deputy Director of the Masters in Journalism Programme at the Journalism and Media Studies Centre, HKU
Sharron teaches media law to both undergraduate and postgraduate students at the JMSC. Before joining the JMSC in 2016, she taught and conducted research at the Faculty of Law at The University of Hong Kong. This year, she is the course convenor for Human Rights Law in Practice for the Faculty. She is currently engaged in research on two major research projects: the State of News in Asia and the State of Free Expression in Asia. “Views from the Trenches”

Cliff Buddle, Special Projects Editor and legal affairs writer, South China Morning Post
A journalist for more than 30 years, Cliff began his career as a court reporter in London and moved to Hong Kong in 1994 to join the SCMP. Specialising in court reporting and legal affairs, he has held a variety of editorial positions, including Deputy Editor and Acting Editor-in-Chief.

“Lessons from Beyond China”
Cherian George, Professor of Media Studies, School of Communication, Hong Kong Baptist University
Cherian researches media freedom, censorship and hate propaganda. His books include Media and Power in Southeast Asia (Cambridge Univ Press, 2019); Freedom from the Press: Journalism and State Power in Singapore (NUS Press, 2012); and Hate Spin: The Manufacture of Religious Offence and its Threat to Democracy (MIT, 2016), which was named one of the year’s 100 Best Books by Publishers’ Weekly.

5. US Sanctions on Hong Kong and Its Legal and Financial Implications (3 Sept 2020)

Date: 3 Sep 2020 (Thursday)
Time: 9:00am – 10:30am

Since the promulgation of the Hong Kong National Security Law (NSL), the Trump Administration has introduced a series of measures aimed at sanctioning individuals and financial institutions involved in the development and implementation of the NSL. The NSL has put the future of the city on the line, by simultaneously generating growing uncertainty around Hong Kong’s status as a leading financial centre, and exposing China’s profound vulnerability to the U.S. dollar-centric financial network. In this webinar, three esteemed experts will join us for a discussion on the following topics:
· The legal consequences of the recent and potential U.S. sanctions on Hong Kong
· The corresponding economic impact on domestic and foreign financial institutions in Hong Kong
· The potential Chinese countermeasures that can be employed the short-term and the country’s strategy of de-dollarization

Moderator:
Angela Zhang, Associate Professor & Director of Centre for Chinese Law at the University of Hong Kong

Guest Speakers:
Benjamin Kostrzewa is a senior attorney specializing in international trade law at Hogan Lovells. He previously served as assistant general counsel at the Office of the U.S. Trade Representative where he handled WTO disputes, FTA negotiations as well as U.S.-China conflicts and negotiations.

Elizabeth Rosenberg is the Director of the Energy, Economics, and Security Program at the Center for a New American Security. She was formerly a Senior Advisor at the U.S. Department of the Treasury, assisting to develop and implement financial and energy sanctions on countries such as Iran, Libya and Syria.

Victor Shih is an Associate Professor of political economy and the Ho Miu Lam Chair in China and Pacific Relations at University of California at San Diego. He is an expert on the politics of Chinese banking policies, fiscal policies, exchange rate as well as the elite politics of China. He is also the author of “Factions and Finance in China: Elite Conflict and Inflation.”

4. Academic Freedom in Hong Kong: the Potential Impact of the New National Security Law (15 Aug 2020)

Date/Time: 15/08/2020 09:00-11:00

Welcoming Remarks by Professor Fu Hualing, Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law

Speakers:

Proposing a 'Bottom-Up' Approach to Protecting Academic Freedom in the Shadow of the NSL

Carole Petersen (University of Hawaii at Manoa):

This presentation begins by briefly introducing the significant written protections for academic freedom in the Joint Declaration and HK's Basic Law and explaining how this framework was undermined in the past two decades by changes to university governance structures. The enactment of the NSL presents a further challenge due to the broad and vague language of the new criminal offenses. HK academics should not wait for policies to be announced from above. Rather, academics should take a 'bottom up' approach and adopt robust policies at the faculty and departmental levels. Such policies should emphasize the importance of scholarly research (including 'knowledge exchange' as one of the criteria in research assessment exercises) and the demand for courses that include experiential teaching.

International Standards Supporting Academic Freedom

Kelley Loper (Faculty of Law, HKU)

This presentation will draw primarily on the ICCPR, which has a special place in HK's constitutional framework due to Article 39of the HK Basic Law and is also preserved in Article 4 of the NSL. HK courts will likely use the ICCPR as a guide when interpreting vague language in the NSL and thus the views of the UN Human Rights Committee (the treaty-monitoring body for the ICCPR) are particularly relevant. However, the International Covenant on Economic, Social and Cultural Rights (ICESCR) is also referred to in Article 39 of the Basic Law and Article 4 of the NSL. Thus, the UN Committee on Economic Social and Cultural Rights can offer guidance, particularly in the context of the right to education.

Comparative Perspectives: Lessons from Abroad

Robert Quinn (Scholars at Risk Network, New York University )

Threats to academic freedom are a global phenomena and this presentation will draw on lessons from jurisdictions outside Hong Kong. When faced with laws and government policies adopted in the name of "national security" university administrators may feel a need to take proactive steps to comply with the law. They have an understandable desire to protect their students and faculty from arrest and possible criminal prosecution. However, universities also need to be careful not to design policies that "protect" the university by chilling academic freedom and encouraging self-censorship.

3. Security Laws in Singapore and Hong Kong: A Comparison新加坡與香港國安法的比較研究 (25 July 2020)

Date: July 25, 2020 (Saturday)

Time: 15:00 — 17:00

Language: English

Moderator主持：

Fu Hualing

Professor of Human Rights and Responsibilities, HKU Faculty of Law

(香港大學法律學院陳志海基金講座教授、院長)

Speakers講者:

Michael Hor

Professor, HKU Faculty of Law (香港大學法律學院教授)

Kevin Tan

Adjunct Professor, National University of Singapore (新加坡大學法學院客座教授)

2. Hong Kong National Security Law and Extraterritoriality港區國安法与域外管辖(18 July 2020)

 

Time: 15:00 - 17:00, July 18 Saturday 2020

(7月18日15:00-17:00)

Language: English (英文)

Venue: Zoom

This seminar explores the possible extraterritorial application of the Hong Kong National Security Law (NSL) based on both the personality principle and protective principle. Speakers in the panel will identity the reach and potential overreach of this long-arm legislation and examine legal and diplomatic challenges that the NSL may face in implementation.

Moderator主持：

• Albert Chen 陳弘毅

Cheng Chan Lan Yue Professor in Constitutional Law, HKU Faculty of Law

(香港大學法律學院鄭陳蘭如基金憲法學教授)

Member, the Hong Kong Basic Law Committee of the National People’s Congress Standing Committee

(全國人大常委會香港基本法委員會委員)

Speakers講者:

• China’s Long Arm Legislation(中國的長臂管轄立法)

Fu Hualing 傅華伶

Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law

(香港大學法律學院陳志海基金講座教授、院長)

• Protective Jurisdiction and Hong Kong’s National Security Law(保護管轄和港區國安法)

Bing Ling 淩兵

Professor of Chinese Law, The University of Sydney Law School (悉尼大学法学院教授)

• Extraterritorial Effect of the Hong Kong National Security Law(港區國安法的域外效力)

Zhaojie(James) Li李兆傑

Professor of International Law at Tsinghua University School of Law (清華大學法學院国际法教授)

• Extraterritorial Effect of the Hong Kong’s National Security Law: Some Comparisons

(港區國安法的域外效力: 一些比較)

Peter Chau周兆雋

Assistant Professor, HKU Faculty of Law (香港大學法律學院助理教授)

1. Balancing Freedom and Security: the Hong Kong National Security Law港區國安法：平衡自由與安全 (4 July 2020)

Time: 15:00 - 17:30, July 4 Saturday 2020

(7月4日 15:00-17:30)

Language: English/Putonghua/Cantonese (廣東話/普通話/英文)

While the Hong Kong National Security Law will operate within the One Country Two Systems framework, it is set to have a significant and long lasting impact on Hong Kong’s legal system. This and several forthcoming seminars organized by the Faculty of Law and its research Centres will review the new legislation and its implications. Participating experts from different backgrounds will shed light on the challenges arising from, and rule of law responses to, the new national security regime in Hong Kong. This opening seminar aims to offer an introduction to the overall structure of the legislation, to highlight issues of concern and to suggest ways forward.

• Fu Hualing 傅華伶 (Moderator主持)

Dean, Warren Chan Professor of Human Rights and Responsibilities, HKU Faculty of Law

(香港大學法律學院陳志海基金講座教授、院長)

• Richard Wong 王于漸

Philip Wong Kennedy Wong Professor in Political Economy, HKU

(香港大學黃乾亨黃英豪基金政治經濟學教授)

Provost and Deputy Vice-Chancellor, HKU (香港大學首席副校長)

• Albert Chen 陳弘毅

Cheng Chan Lan Yue Professor in Constitutional Law, HKU Faculty of Law

(香港大學法律學院鄭陳蘭如憲法學講座教授)

Member, the Hong Kong Basic Law Committee of the National People’s Congress Standing Committee

(全國人大常委會香港基本法委員會委員)

• Han Dayuan韓大元 (via Zoom)

Professor of Law, Renmin University School of Law (中國人民大學法學院教授)

Member, the Hong Kong Basic Law Committee of the National People’s Congress

Standing Committee (全國人大常委會香港基本法委員會委員)

• Cora Chan陳秀慧

Associate Professor, HKU Faculty of Law (香港大學法律學院副教授)

• Simon Young楊艾文

Professor and Associate Dean, HKU Faculty of Law (香港大學法律學院教授、副院長)

• Wang Zhenmin王振民 (via Zoom)

Professor, Tsinghua University School of Law (清華大學法學院教授)

Director, Center for Hong Kong and Macao Studies of the Tsinghua University

(清華大學港澳研究中心主任)

Haochen Sun Interviewed on National Security Law Implications for Facebook, Twitter, Google in Hong Kong (WSJ)

"Facebook, Twitter, Google Face Free-Speech Test in Hong Kong: New national-security law means authorities can ask companies to delete users or their content"
Newley Purnell and Eva Xiao

The Wall Street Journal
3 July 2020

HONG KONG—U.S. technology titans face a looming test of their free-speech credentials in Hong Kong as China’s new national-security law for the city demands local authorities take measures to supervise and regulate its uncensored internet.

     Facebook Inc. and its Instagram service, Twitter Inc. and YouTube, a unit of Alphabet Inc.’s Google, operate freely in the city even as they have been shut out or opted out of the mainland’s tightly controlled internet, which uses the “Great Firewall” to censor information....

     “Tech companies will absolutely receive more requests to remove information that is allegedly harmful to national security from the relevant authorities,” said Haochen Sun, a law professor at the University of Hong Kong. He said companies will face difficulties especially with borderline cases, such as potential requests to remove songs, for instance, that protesters have used in antigovernment demonstrations... Click here to access the online article.

Hualing Fu on the Relationship Between Hong Kong's Basic Law and the National Security Law

A Note on the Basic Law and the National Security Law

Hualing Fu

12 August 2020

Is the National Security Law (NSL) a second Basic Law standing on its own in its relationship with the Basic Law or is it part of the Basic Law structure and subject to its control? This is a difficult question. This note considers the arguments in favour of both positions and inclines towards the latter view as the better understanding of the relationship between the NSL and the Basic Law.

Legislative Hierarchy and Principles

The constitutional rules and principles in relation to the legislature of the mainland are most clearly stated in the Legislation Law. Article 7 of this Law provides that the National People’s Congress (NPC) and its Standing Committee (NPCSC) have the exclusive power to make laws.

     The NPC makes and amends criminal law, civil law, laws relating to state organs and other “basic laws”, which remains an undefined and controversial concept in Chinese law.

     The NPCSC makes and amends laws other than the basic laws. The NPCSC also has the power to make laws to partially supplement and amend the NPC laws (e.g. basic laws) when the NPC is not in session, but any addition and amendment shall not contravene the “basic principles” of the “basic laws”. [1]

     According to Article 97(1) of the same law, the NPC has the power to change or rescind laws made by the NPCSC that are “inappropriate.” [2]

     Notwithstanding these legislative rules, the Chinese Constitution does not provide a functional mechanism for constitutional review. The NPCSC occupies the commanding heights of the legislature and has the power both to make law and interpret law, rendering meaningless the possibility of post-enactment constitutional review of law.

The Basic Law

The Basic Law is a basic law in the Chinese hierarchy because it was enacted by the NPC and enjoys a higher constitutional status, albeit in a limited sense. Nevertheless, the Basic Law has a higher constitutional status among all laws in China because of its special function in creating a SAR in the implementation of Article 31 of the Constitution. As a result, the Basic Law is often regarded in Chinese constitutional scholarship as quasi-constitutional or a constitutional document and has been given a privileged constitutional status higher than ordinary NPC laws.

     The April 1990 Decision by the NPC is of special significance in signaling the special constitutional status of the Basic Law. On the same day it promulgated the Basic Law, the NPC made a Decision to affirm and to declare the constitutionality of the Basic Law. The Decision also establishes the supremacy of the Basic Law in the SAR by stating: “The systems, policies and laws to be instituted after the establishment of the Hong Kong Special Administrative Region shall be based on the Basic Law of the Hong Kong Special Administrative Region.”[3] The Basic Law constitutes the SAR, and therefore it is Hong Kong’s Constitution, mini or otherwise. Any other law, as long as it is implemented in Hong Kong, would have to be “based on”, subordinate to, and comply with the Basic Law. The NSL, as a NPCSC law, is no exception.

The NSL

The NSL is a unique law, however, which follows an extraordinary law-making path. The NPC itself triggered the legislative process for the NSL through a Decision on 28 May 2020. The Decision relies directly on Article 31 and Article 62 (2) (12) (14) of the Constitution in authorising and mandating the NPCSC to make a NSL within the scope of the Decision. 

     Both the Basic Law and the Decision derive their authority from Article 31. This is also the first time that the NPC has invoked Article 62 (2) to exercise its power in extending a national law to Hong Kong. Article 62 sets out the different functions and powers of the NPC and paragraph (2) refers to the power to “supervise the enforcement of the Constitution”. The making of the NSL relied upon the Constitution for its application to Hong Kong outside of the framework of the Basic Law. This is a significant development in Basic Law jurisprudence and will have long-term consequences. Although the Basic Law is also relied on and referred to in the Decision, no reference is made to any specific articles of the Basic Law, leading to the argument that the NPC has indeed bypassed the Basic Law in making the NSL.

     According to the relevant clauses in Article 62 of the Constitution, the NPC can supervise the implementation of the Constitution (62 (2)); decide on establishment of a SAR and the system to be implemented there (62(14)); and exercise other powers that shall be exercised by the highest organ of state power (62(16)). In acting according to these functions and powers, the NPC is stating, as the sovereign power, it can enact any law for Hong Kong as circumstances demand and as it sees fit.

     On 30 June 2020, the NPCSC promulgated the NSL. Article 3 of the NSL provides that “The Central People’s Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.” By this article, according to my reading of the Basic Law and the NSL, the NPCSC has effectively replaced Article 23 of the Basic Law with the NSL. Or one might say it is giving effect to what has always been implicit in Article 23.

     Article 7 of the NSL provides: “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 relevant laws”. This is a technical article used to preempt the challenge that the NSL violates the “on its own” clause in Article 23 of the Basic Law. Given the substantial overlapping between the NSL and Article 23, in form and substance, and common legislative objectives of both laws, a more honest approach is to admit that the NPC has authorised its NPCSC to make an Article 23 law for Hong Kong to fix a potential or real serious national security crisis. The operative word in Article 7 is “complete” suggesting the NPCSC has started the Article 23 work project for Hong Kong to finish.

Conclusion

So what is the constitutional status of the NSL? It has been argued that the NSL is the second Basic Law for Hong Kong because of (A) its direct reliance on, and invocation of Article 31 and Article 62 (2) (12) and (14), and (B) the special authorisation of the NPC to make the NSL through its May Decision. According to this view, the NSL is a national law that exits in parallel to the Basic Law, supplementing and amending the Basic Law but not bound by it. That view, which accepts the creation of a separate source of law and an independent national security regime in Hong Kong outside the Basic Law, would have caused a fundamental change to ‘one country, two systems’. After a careful reading of the NPC Decision, the NSL, and the explanatory notes to both the Decision and the NSL, I cannot find any evidence that such a fundamental change is intended.

     A better view is that the NSL is an ordinary piece of NPCSC legislation, subordinate in status and force to the Basic Law. It is self-evident the NSL, according to the NSL itself (Article 1), was made “in accordance with” the Basic Law. The Basic Law remains a superior law to the NSL and the supreme law in Hong Kong.[4] This is so not merely because the Basic Law is a basic law enacted by the NPC – the NPC can make other basic laws. Rather it is due to the Basic Law’s quasi-constitutional status. The Basic Law remains Hong Kong’s constitution by its nature.

     The NSL is a NPCSC law that has been inserted into Annex III of the Basic Law to fill a gap left by Article 23, as contentious as the matter may be. As such, the NSL has to be consistent with, and accountable to, other provisions of the Basic Law so as to maintain the integrity of the Basic

     Law in accordance with Article 11.[5] The NSL may have replaced the explicit understanding of Article 23 to create a novel national security regime, but it is not immune from the control of the Basic Law.

     From the Chinese law perspective, as stated above, since the NPCSC both made the NSL and interprets both the NSL (Article 65) and the Basic Law (Article 158), a constitutional review of the NSL against the Basic Law by the NPCSC is unlikely to prove a meaningful exercise. However, the Chinese law position does not prohibit Hong Kong courts from developing a common law jurisprudence in interpreting the NSL in accordance with the standards of the Basic Law, that is to say to reconcile any potential conflict between the two laws through judicial interpretation, subject to the interpretative power of the NPCSC. [6]

Notes

[1] Article 7, Legislation Law.

[2] Article 97, Legislation Law.

[3] Decision of the National People’s Congress on 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 on 4 April 1990)

[4] Article 62 of the NSL states that “This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.” “Local laws” Article 62 does not include the Basic Law.

[5] In the case of HKSAR v. Ng Kung Siu and another [1999] HKCFA 10, the CFA considered the constitutionality of the National Flag Ordinance, which was enacted through art 18(2) and Annex III, thereby further confirming that national laws enacted in this way must be consistent with the Basic Law.

[6] Article 65 of the NSL provides “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress”. Given that the application of the NSL would necessarily involve judicial interpretation by Hong Kong courts, Article 65 must be referring to “ultimate or final power of interpretation”.

Simon Young on Interpreting Hong Kong's National Security Law (SCMP)

"Why Beijing must respect Hong Kong courts' interpretation of national security law"
Simon Young
South China Morning Post
8 July 2020

Like a signal No 8 typhoon, the national security law directly hit Hong Kong just before midnight on July 1, leaving us to pick up the pieces. One of those pieces is its interpretation.

     Some have asked why bother as it is like other Chinese laws – vague and open to manipulation through interpretation by the authorities. Only the National People’s Congress Standing Committee appears to have the power to interpret the law. Let the political struggle continue, they say.

     As a law professor and practitioner, I find such a defeatist attitude unhelpful. Cases under the new law have commenced. Lawyers need to advise on it and courts must apply it in adjudicating cases. The law is upon us and we cannot sit idle in fear, waiting for some authority to tell us what it means. In affirming our autonomy, questions of interpretation should be carefully considered on our own in accordance with existing legal practices and principles. 

     The national security law has been added to Annex III of the Basic Law by the NPC Standing Committee. Annex III national laws are to be “applied locally” – that is, by reference to local circumstances and standards. Hong Kong judges and practitioners work in a common law legal system, having been educated and trained in the common law tradition... Click here to read the full article.

Liability for Imposing Sanctions under Hong Kong's National Security Law (Albert Chen and Simon Young)

Liability for Imposing Sanctions under Hong Kong’s National Security Law

 Albert H.Y. Chen* and Simon N.M. Young**

31 July 2020

[NB: This post was updated and published as an article in (2020) 50 HKLJ 353, available on Westlaw or contact the authors.  Also available on SSRN.]

1. Introduction

Under Article 29(4) of Hong Kong’s National Security Law (NSL), a person who “receives instructions”（接受外國的指使）from a foreign country to commit （實施）the act (行爲) of “imposing sanctions against the Hong Kong Special Administrative Region (HKSAR) or the People’s Republic of China” (PRC) (對香港特別行政區或者中華人民共和國進行制裁) commits a criminal offence.[1] Recently, some foreign countries have taken steps towards imposing sanctions against the HKSAR, PRC and their officials. International banks and financial institutions in Hong Kong are worried that they may be in breach of Article 29(4) if as a result of their regulatory obligations they must give effect to these sanctions in their ordinary business operations.[2] Prima facie it may appear arguable that such institutions are “receiving instructions” from a foreign country to “impose a sanction on the HKSAR and PRC” and thus appear to be in breach of Article 29(4).

     This commentary examines the scope of Article 29(4) and considers the possible liability risks for banks and financial institutions who must give effect to external sanctions or other measures directed at the HKSAR or PRC. It argues that the scope of Article 29(4) consists of acts which are only capable of being performed by a state, head of state or international organisation, and thus a financial institution, giving effect to sanctions against Hong Kong, cannot be regarded as receiving instructions to “impose sanctions”, which have already been imposed by a foreign state. It cannot be guilty of a criminal offence under Article 29(4) merely by participating in the implementation of the sanctions concerned to comply with a foreign law applicable to it. However, in certain exceptional and special circumstances to be discussed below, it is possible for banks and financial institutions to become liable (as a non-principal offender) for providing financial services to a foreign head of State or political leader who (as a principal offender under Article 29(4)) has received funding or other support from a third party for the purpose of the State concerned imposing a sanction on the HKSAR or the PRC.

2. The Structure of Article 29

Discerning liability under Article 29 is made difficult by its clumsy drafting, block structure, and absence of clear subsections and paragraphs. Inserting numbering for subsections/paragraphs and other formatting can improve readability without altering the meaning of the article. Consider the following Chinese and unofficial English versions of Article 29 with new section numbering in red and other formatting inserted for clarity:

第二十九條

[A] 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；

[B]

[a] 請求外國或者境外機構、組織、人員

[b] 與外國或者境外機構、組織、人員串謀

[c] 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

以下行為之一的，均屬犯罪：

（一）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；

（二）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；

（三）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；

（四）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；

（五）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。

Article 29[3] 

[A] A person who steals, spies, obtains with payment, or unlawfully provides State secrets or intelligence concerning national security for a foreign country or an institution, organisation or individual outside the mainland, Hong Kong and Macao of the People’s Republic of China shall be guilty of an offence;

[B] a person who

[a] requests a foreign country or an institution, organisation or individual outside the mainland, Hong Kong and Macao of the People’s Republic of China, or

[b] conspires with a foreign country or an institution, organisation or individual outside the mainland, Hong Kong and Macao of the People’s Republic of China, or

[c] directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an 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:

(1) waging a war against the People’s Republic of China, or using or threatening to use force to seriously undermine the sovereignty, unification and territorial integrity of the People’s Republic of China;

(2) seriously disrupting 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 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.

3. Discussion

Hong Kong’s criminal laws are to be interpreted with reference to the words used in the law, the purpose of the law, and the context in which the law is found. Article 29 is found in Part 4 of the NSL which is titled “Collusion with a Foreign Country or with External Elements to Endanger National Security”. Its purpose is to criminalise a person’s acts of collusion with an ‘outsider’ for the commission of specific acts that endanger national security. An ‘outsider’ means a “foreign country or an institution, organisation or individual outside the mainland, Hong Kong and Macao of the [PRC]”. While the offenders are likely to be insiders (i.e. a Hong Kong resident), they need not be and can also include bodies such as companies. 

     For present purposes, we are focusing only on section [B] of Article 29. Section [B] has three limbs, each of which constitutes wholly or partly the actus reus of a criminal offence under Article 29[B]: [a], [b] and [c], corresponding to the three forms of collusion proscribed by Article 29. They are acts of “requesting”, “conspiring with” or “receiving instructions, … funding, etc” that the person must commit with the outsider. But to commit the offence, those acts must be done to achieve certain objectives, as specified in paragraphs (1) to (5). The prohibited acts referred to in these paragraphs (e.g. waging a war, etc) do not need to materialise for the offence to be committed.[4] The relevant acts specified in paragraphs (1) to (5) represent the intended objects of the collusion, while the collusion itself lies at the heart of the offence. The essence of the offence targets the acts of “requesting”, “conspiring with”, or “receiving instructions, … funding, etc from” an outsider in order for one or more of the five prohibited acts to be committed. 

     While the accused person must commit an act of “requesting”, “conspiring” or “receiving …”, questions will arise as to the scope of each of the five intended objects. For example, must the accused or outsider also be an intended party to the collusion object? Who is capable of committing the collusion object? The answer to these and other questions concerning the scope of the intended object will depend on two main considerations: (1) the logical connection between the relevant actus reus limb and the specific collusion object; and (2) nature of the specific collusion object.

     Limb [a] involves the person requesting an outsider “to commit” one or more of the collusion objects (1) to (5). This clearly contemplates the outsider committing the prohibited act in (1) to (5), e.g. if A requests State B to wage a war against the PRC it is State B who will wage the war, not A. Limb [b] involves the person conspiring with an outsider “to commit” one or more of the collusion objects. The law of conspiracy in Hong Kong requires an agreement between two or more person to commit an offence by at least one of those party to the agreement.[5] Applying this law of conspiracy implies that under limb [b] any party to the conspiracy (including the person and outsider) may commit the intended collusion object, e.g. if A conspires with State B to rig or undermine an election in the HKSAR (paragraph (3)), it is intended that anyone party to this conspiracy, including A or State B, will be actually rigging or undermining the election. Finally, limb [c] involves the person receiving instructions or other kinds of support from an outsider “to commit” the collusion object. The natural and logical meaning of these words suggests that it is the person (though perhaps jointly with others) who will commit one or more of the prohibited acts in (1) to (5). For example, if A receives instructions or funding from State B to rig or undermine an election in the HKSAR, this suggests at least A will be the person performing the act of rigging or undermining the election. 

     Once one appreciates the significance of the logical connection between the actus reus limb and collusion object, it is necessary to consider the text and nature of the collusion object to fully appreciate its scope. 

     Collusion object (4) concerning sanctions reads as follows in the original Chinese (with translated English terms inserted):

“對香港特別行政區或者中華人民共和國進行(impose)制裁(sanctions)、封鎖(blockade)或者採取(engage in)其他敵對行動(other hostile activities)”

The ‘imposition’ of ‘sanctions’ and ‘blockade’ are acts which can only be performed by one State as against another State. If the ejusdem generis rule of interpretation is applied, then in this provision, ‘採取其他敵對行動’ (‘engaging in other hostile activities’) should be interpreted to mean acts of a similar nature as ‘imposing sanctions and blockade’ (進行制裁、封鎖), so the acts must also be acts performed by a State against another State. This is confirmed by our research into the use of the term didui xingdong (敵對行動) (‘hostilities’ or ‘hostile activities’) in works on public international law and legal documents in China, which shows that didui xingdong (敵對行動) is usually an action taken by a State (including its military forces) against another State (and may also include military conflicts in circumstances of civil war), although individual human beings may participate in (參與) didui xingdong (敵對行動).[6]

     It follows that in Article 29(4), the subject (or actor) performing the acts of ‘imposition of sanctions or blockade’ (進行制裁、封鎖) or ‘engaging in other hostile activities’ (採取其他敵對行動) was intended to be a State (including the government of the State), a person with authority to act on behalf of a State (eg the Head of State), or an international organisation whose membership consists of States. In other words, where the first paragraph of article 29 (immediately following limb [c] and immediately before object (1)）refers to “…實施以下行為之一的” (“to commit any of the following acts”), the relevant 行為 (“act”) in object (4) may only be committed by a State, a person with authority to act on behalf of a State, or an international organisation and cannot be committed by any other person or entity such as a bank or financial institution.

     If one accepts this State-centred approach to the understanding of paragraph (4), there is still the question of liability from the perspective of the three actus reus limbs. Limb [a] involves persons requesting an outsider (which is a State) to impose sanctions, etc, on the HKSAR or PRC. This (i.e. Article 29[B][a](4)) is the most logical combination between any of limbs [a], [b] and [c] with the object in paragraph (4). The prohibition of such “requesting” (the latter actually occurred in 2019 during the anti-extradition movement in Hong Kong[7]) falls directly within “the mischief” or purpose of Article 29(4). Similarly, under limb [b], those who conspire with an outsider (being a State) for the State concerned to impose sanctions on the HKSAR or PRC would also be caught (i.e. Article 29[B][b](4)).

     Banks and other financial institutions will not be caught by limbs [a] or [b] as combined with paragraph (4) so long as they abstain from any “requesting” of the imposition of sanctions against the HKSAR or PRC and from any conspiracy with a State for this purpose. The critical question for our present purpose is whether they might be caught by limb [c] if, for example, they are required by the law of a foreign State to perform any act (in their business activities) that would form part of the implementation of a sanction imposed by the foreign State on the HKSAR or the PRC, and they comply with such a legal requirement. Would they be “receiving instructions …” from an outsider, including a foreign State, to impose sanctions on the HKSAR or PRC? 

     In our view, a bank or financial institution acting in compliance with a foreign law which requires it to participate in the implementation of such a sanction cannot be guilty (as a principal offender) of any offence created by the combination of limb [c] with paragraph (4). This is because the relevant act (行為) in the expression “…實施以下行為之一的” (to commit (or perform) any of the following acts) (in the first paragraph of article 29 immediately following limb [c] and immediately before paragraph (1)） cannot, as far as paragraph or object (4) is concerned, be committed by a bank or financial institution. A bank or financial institution (complying with a foreign law imposing a sanction on the PRC or the HKSAR, or on individual persons or corporate entities in the PRC or the HKSAR) may participate in the implementation of a sanction imposed by a foreign State against the PRC or the HKSAR, but it cannot “impose a sanction” against the PRC or HKSAR. Such a bank or financial institution would only be liable if the wording of object (4) were amended to include not only “imposing a sanction … on the PRC or the HKSAR” (對香港特別行政區或者中華人民共和國進行制裁) but also “participating in the implementation of a sanction imposed by a State against the PRC or the HKSAR” （參與外國對香港特別行政區或者中華人民共和國進行的制裁的實施）.

     In our opinion, the act described in object (4) as “imposing a sanction, …” against the HKSAR or PRC (which in our view is an act (行為) that can only be performed or committed (實施) by a State, a person acting on behalf of a State (such as a head of State or the president, premier or prime minister of a State), or an international organisation composed of States) is different and distinct from any act of ‘participating in the implementation of a sanction imposed by a State against the PRC or the HKSAR’. The latter act is an act that can be performed by individuals or corporate entities, but it is not covered by object (4). The act (行為) covered by object (4) can be committed or performed (實施) in the context of Article 29[B][a](4) (i.e. a person requesting a foreign State to impose sanctions on the PRC or the HKSAR), or in the context of Article 29[B][b](4) (i.e. a person conspiring with a State so that the State would impose a sanction on the PRC or the HKSAR). But the combination of limb [c] and object (4) (i.e. the operation of Article 29[B][c](4)) will only be possible in rare and exceptional circumstances as discussed below.

     Conceivably, there is possible liability under limb [c] for a bank or financial institution where the head of State A (or its president, premier or prime minister) receives “funding” from an outsider for the purpose of State A imposing sanctions on the HKSAR or PRC. If the outsider is a bank or financial institution outside of the mainland, Hong Kong and Macau, then it could be liable under the last paragraph of Article 29 (on accomplice liability).[8] Given the severity and stigma of the offence, it is likely it would need to be proven the outside bank or financial institution acted with full knowledge of the relevant circumstances constituting the collusion offence for the head of State A. 

     Another example of possible liability under limb [c] for a bank or financial institution is through the vehicle of the common law principles of accessorial liability, assuming they apply to extend the net of liability of NSL offences. Take the same example of the head of State A receiving funding (e.g. in the nature of a political donation or bribe) from an outsider for the purpose of State A imposing sanctions on the HKSAR or PRC. If a bank or financial institution provides the services to enable the head of State A to receive those funds from the outsider, again with full knowledge of the circumstances of the facts that constitute the collusion offence, it could be argued that the financial institution aided and abetted the receipt of those funds. Under the common law principles of accessorial liability, if the institution acts with knowledge of the essential matters constituting the offence and with the intention of assisting or encouraging the principal offender (in this example the head of State A) to do the things which constitute the offence, then the institution will also be liable for that offence as a secondary party.[9]

     In these two examples of possible liability for assisting or encouraging a State official to impose sanctions on the HKSAR or PRC, the liability can be prevented most likely by existing compliance and due diligence procedures and systems. In both examples, liability is based on the financial institution enabling the transfer of funds to a State official, who has the authority to impose sanctions on another State and decides to authorise such sanctions because of the receipt of those funds. In such situations, existing anti-money laundering systems will flag such transactions as they relate to a politically exposed person (PEP) and call for enhanced due diligence screening. Compliance officers will know to inquire into the origins of the funds and its intended purpose and use. But in addition to inquiring into the usual forms of crime-tainted property, e.g. proceeds of crime, bribe, instrument of crime, etc, compliance officers will now also need to ask if the PEP is receiving the funds on account of a decision to impose a sanction or blockade on or to engage in another form of hostile activity against the HKSAR or PRC.

4. Conclusion

In our view, banks and financial institutions, which may be required by the law of a foreign state to implement sanctions against the HKSAR, PRC or their officials who are their customers, will not commit an offence under limb [c] of Article 29(4) as they are not capable of performing the act of imposing a sanction or blockade or engaging in other hostile activities. Such an act may only be performed by a State, an individual acting on behalf of a State (such as a head of State or political leader), or an international organisation. However, this does not mean that a bank or financial institution may never be liable as a result of the operation of Article 29[B][c](4) of the NSL. In the exceptional and special circumstances discussed in this article, liability may still be possible under limb [c] either as an outsider or secondary party who has knowingly facilitated a head of State or political leader in receiving funding or support to impose sanctions against the HKSAR or PRC.

Appendix I

The use of the term“敵對行動”(hostile actions or hostilities)

The Agreement on the Cessation of Hostilities in Cambodia (which, together with the Agreement on the Cessation of Hostilities in Vietnam and the Agreement on the Cessation of Hostilities in Laos, formed the Geneva Agreement of 1954), is called in Chinese 關於在柬埔寨停止敵對行動的協定. Thus敵對行動 is the Chinese term for “hostilities”.

     On-line Searches reveal the following contexts of the use of the Chinese term 敵對行動:

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晏明 李超碧

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金边专电柬埔寨大选将于5月23日到28日举行。联合国驻柬埔寨临时权力机构(联柬机构)正在调兵遣将,加强危险地区的防范,以保证届时大选如期进行。不过,被联柬机构视为危险地区的敌对行动,特别是针对联柬机构的敌对行动正在增加,次数越来越频繁,规模越来越大,损失越来越严重,柬全国大选面临危机。

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芸茜

世界知识, 1995 (10), p.18-19

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* Cheng Chan Lan Yue Professor in Constitutional Law, Faculty of Law, University of Hong Kong; member, Hong Kong Basic Law Committee of the National People’s Congress Standing Committee.

** Professor and Associate Dean, Faculty of Law, University of Hong Kong; Barrister, Parkside Chambers, Hong Kong.

[1] The offence is punishable up to life imprisonment in grave cases for individuals (Article 29) and by unlimited fine for companies (Article 31). If a company is punished under the NSL, its operations may be suspended and business licences and permits may be revoked (Article 31).

[2] See, eg, “Businesses in Hong Kong fear collateral damage from security law”, Financial Times, 2 July 2020; “Banks in Hong Kong audit clients for exposure to US sanctions”, Financial Times, 10 July 2020.

[3] Unofficial English translation published by the Xinhua News Agency on 30 June 2020 (see http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm) and re-published in the HKSAR Government Gazette.

[4] There is another view that some of the acts in these paragraphs, such as that in paragraphs (2), (3) or (5), may actually need to materialise and thus form part of the actus reus of an offence, say, under Article 29[B][c]. But in the case of the operation of Article 29[B][a](4), the act of the imposition of a sanction against the HKSAR or PRC may also materialise, though it will not form part of the actus reus of the offence under Article [B][a](4), as the actus reus in this case is confined to the “requesting”.

[5] See Crimes Ordinance (Cap 200), s 159(1)(a).

[6] See Appendix I of this commentary.

[7] See, e.g., “Hong Kong pro-democracy lawmakers in US to discuss city’s crisis with politicians and business leaders”, South China Morning Post, 16 Aug 2019,

https://www.scmp.com/news/hong-kong/politics/article/3023015/hong-kong-pro-democracy-lawmakers-us-discuss-citys-crisis; “Hong Kong activist seeks U.S. support for pro-democracy protests”; Reuters, 15 Sept 2019,

https://www.reuters.com/article/us-hongkong-protests-wong/hong-kong-activist-joshua-wong-seeks-u-s-support-for-protests-idUSKBN1VZ0LQ.

[8] This last paragraph may be translated as follows: “The 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 jointly committing the offence with the principal offender”. We consider the above a more accurate translation than the following version in the English translation of the NSL published by the Xinhua News Agency and reproduced in the HKSAR Government Gazette: “The 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. The Chinese original is as follows: “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。”

[9] HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640, [11].