(Editor’s note: The following are the remarks of Grenville Cross SC at the Pacific Pension & Investment Institute Executive Seminar held on Oct 20-22)
I am grateful to the Pacific Pension and Investment Institute for having invited me to be with you today, and to say something about Hong Kong’s national security situation. But, first, let me briefly step back in time.
The Sino-British Joint Declaration
In the 1980s, the British prime minister, Margaret Thatcher, decided, given that the UK’s 99-year lease on the New Territories (the northern part of Hong Kong) would expire on July 1, 1997, that China would resume its exercise of sovereignty over the entire territory of Hong Kong (comprising Hong Kong Island, Kowloon and the New Territories). This was after China’s paramount leader, Deng Xiaoping, had made clear that the existing arrangements would not be extended.
After lengthy negotiations, the two countries signed the Sino-British Joint Declaration on Hong Kong in Beijing in 1984. At its heart was the agreement that after the reunification the Hong Kong Special Administrative Region (HKSAR) would operate under the “one country, two systems” governing policy. It provided that Hong Kong’s capitalist system and way of life would continue for 50 years after 1997, which was reassuring for its people.
Although the Joint Declaration covered numerous areas, including finance, law and trade, it said nothing about Hong Kong’s future national security arrangements, for good reason. As Thatcher realized, these were a matter for China alone, not the UK. Just as British national security is entirely a matter for the UK, so Chinese national security is entirely a matter for China. In the event, China’s approach to national security in Hong Kong was extraordinary, and let me explain why.
Basic Law
In 1990, the National People’s Congress enacted the Basic Law of the HKSAR, effectively its “mini-constitution”. It incorporated the principles of the Joint Declaration, indicated in detail how Hong Kong would operate after 1997, and fleshed out the bare bones of the Joint Declaration. It even provided that the “ultimate aim” was the election of the chief executive and the Legislative Council by means of universal suffrage, which amazed observers, as the Joint Declaration contained no such commitment.
The Basic Law also addressed national security issues in the future HKSAR. It provided that Hong Kong “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government or theft of state secrets” etc., (Basic Law Art.23). This was a remarkable concession by Beijing, and it demonstrated its faith in the future HKSAR.
In every country of which I am aware, it is the national parliaments that enact national security laws, not regional assemblies. This is because there is invariably a national plan, applicable throughout the country. In the United States, for example, it would be unthinkable for any entity other than the Congress to decide upon national security issues, and the power is never delegated to individual states.
However, the central authorities recognized that because national security was a highly sensitive issue and Hong Kong people were unfamiliar with national legislation, the issue could be handled differently. To allay possible concerns, they decided to trust Hong Kong to enact national security laws “on its own,” in its own good time, and in a way that suited its own circumstances. However, it was not to be smooth sailing.
Although Hong Kong tried to deliver on its obligations to the rest of the country, this was not possible. In 2003, when the HKSAR government brought forward its very mild national security proposals (Basic Law Art.23), Beijing-hostile elements whipped up concerns, which were fanned elsewhere, including by the UK. In response, the government made over 50 amendments to its proposals, and produced three different drafts, but to no avail. After street protests, the government felt obliged to withdraw its proposals.
What this meant, therefore, was that there was a lacuna at the heart of Hong Kong’s defensive network. Unlike the other common law jurisdictions, Hong Kong lacked essential national security protections. Although this did not matter too much initially, it created huge problems down the line, as the world saw in 2019-20. In consequence, Hong Kong was China’s Achilles heel, and it became a base for those wanting to destabilize the country, as I will explain.
Social disturbances
Once the social disturbances erupted in 2019, the authorities lacked the tools they needed to defend Hong Kong from those wishing to destroy the “one country, two systems” policy, most notably in the areas of secession, subversion and terrorist activity. Those of us who witnessed what occurred at first hand will never forget the horrors that unfolded in our home city, where nobody and nothing was safe from China-hostile forces.
Our parliament (the Legislative Council) was trashed, our courts were petrol bombed, our judges were threatened, our public amenities and universities were vandalized, our train stations were torched, and our banks and businesses were damaged. People from elsewhere in China faced abuse on the streets, hostility in the universities, denial of services in shops and restaurants, and destruction of businesses. To provoke Beijing, the insurgents fire-bombed its representative offices in Hong Kong, burned the national flag, proclaimed that “Hong Kong is not China,” and invited foreign intervention. It was a nightmare for everybody, and many people wondered if the “one country, two systems” policy could survive.
Although those orchestrating the violence clearly hoped to provoke a military response, Beijing refused to fall into their trap. While it was initially left to the police, the prosecutors and the judges to maintain the rule of law, it became increasingly apparent that they lacked the means of doing so, and something had to be done. As Beijing ruled out a military intervention it decided to provide Hong Kong with the wherewithal to protect itself from those who wished it ill.
National Security Law for Hong Kong (2020 NSL)
Although the social disturbances were traumatic, they showed everybody why national security laws were vital if the “one country, two systems” policy was to survive. With the NSL’s enactment by the central authorities in 2020, Hong Kong acquired much needed laws to combat secession, subversion, terrorist activities
However, when the NSL was enacted, the central authorities adopted a minimalist approach. Instead of enacting all the national security laws that Hong Kong was required to pass under its Basic Law (Art.23), it only enacted the laws that were immediately required to combat the insurgency. As Hong Kong had been unable to deliver on its responsibilities for 23 years, Beijing would have been fully justified in enacting all the laws identified in the Basic Law, but it did not do so. It still had faith in Hong Kong’s ability to enact the outstanding laws, including sedition, theft of state secrets and treason.
That trust was repaid on March 23, 2024, when Hong Kong’s Safeguarding National Security Ordinance (SNSO), sometimes known as “Article 23,” finally became law, and it is this that the organizers have particularly invited me to discuss with you today.
Safeguarding National Security Ordinance
The SNSO covers the offenses not included in the NSL, including insurrection, treason, sabotage, sedition, espionage, unlawful acquisition of State secrets and external interference endangering national security. This means China’s defensive network is now complete, and, from a secure base, Hong Kong can now concentrate on other things, including business. In drafting the legislation, the HKSAR government studied the national security laws in other common law jurisdictions, including Australia, Canada, Singapore, the UK and the US, and lessons were learned. In all six jurisdictions, for example, the offense of treason is couched in similar terms, and involves a betrayal of country.
Most notably, the SNSO was influenced by the UK’s national security legislation. For example, the new offense of endangering national security in relation to computers or electronic systems owes much to the UK. Its Computer Misuse Act 1990 prohibits any person from doing an unauthorized act in relation to a computer if the person intends to (or is reckless as to whether the act will) cause damage to national security, and the act will either cause serious damage to national security or create a significant risk of serious damage to national security.
Although the SNSO has provided the police with extra powers, subject to judicial oversight, to seek extended detentions of suspects, and, if the court agrees, to restrict a person’s access to a lawyer if there are reasonable grounds for believing it will endanger national security (ss.78 & 79), these provisions, which some have criticized, mirror the British legislation. Thus, the UK’s National Security Act 2023 gave the police the power to arrest and detain a suspect without a warrant for up to 48 hours, to invite the courts to extend the detention for up to 14 days, and then, with emergency approval, for 28 days. It also restricted a suspect’s right to consult a lawyer if this would interfere with an investigation (s.27).
Again, the espionage, or spying, provisions of the SNSO are not dissimilar to those in the UK and elsewhere, and most countries criminalize the theft of state secrets, as Hong Kong has now done. One big difference, however, lies in the penalties. Whereas espionage is punishable in Hong Kong with 20 years’ imprisonment, it is punishable with life imprisonment in the UK and Australia, and with life imprisonment or the death penalty in the US.
Although the SNSO, like the NSL, has extraterritorial application, this is now a common feature of modern national security laws everywhere. It is recognized globally that national security threats posed by bad actors based in foreign jurisdictions have to be neutralized. Indeed, if this is not done, it creates dangers at home. Extraterritorial national security laws, therefore, provide the protections countries need from people of whatever nationality who try to harm them from their foreign bases, and their utility is widely acknowledged. This is why foreign models were so useful when the SNSO was being drafted.
Once again, the UK’s National Security Act 2023 was of particular value for Hong Kong on the extraterritoriality issue. When the British government created the new offenses of sabotage, espionage and foreign interference, it gave them extraterritorial effect. The legislation specifically provides that if those offenses are committed in a place outside the UK, the person responsible is prosecutable, whatever their nationality (s.36), and Hong Kong followed this example.
When, moreover, the SNSO introduced the new offense of sabotage, observers were struck by its almost uncanny resemblance to the sabotage offense in the UK’s National Security Act 2023. They share the same ambit, same objectives, and, sometimes, even the same terminology. If imitation is the sincerest form of flattery, the UK is entitled to feel highly flattered by the influence it has had on Hong Kong. (And so also is Australia, whose sabotage offense, enacted in 2018, was drafted in terms not dissimilar to those subsequently adopted in the SNSO).
When the SNSO was drafted, it contained an offense of “external interference” per se. However, after consultations, this was renamed as “external interference endangering national security” (s.52). This was done to put everybody’s minds at rest, and to make clear that normal international exchanges in areas like commerce, academia and culture would not be affected, and neither would criticisms of government policies designed to improve them and legitimate lobbying work. The acts that are criminal are clearly defined, so there can be no misunderstandings, and foreign models again influenced the drafting process.
Whereas, for example, Hong Kong’s external interference law criminalizes improper acts which have an “interference effect,” the UK’s foreign interference law (s.13 of the National Security Act 2023) criminalizes acts of “prohibited conduct,” and the overlap is significant. When the Hong Kong offense explains the “improper means” of doing the act (s.55), its wording largely follows that used to define “prohibited conduct” in the UK’s parallel offense (s.15). Both laws require a suspect to intend that the improper means or the prohibited conduct will have an interference effect.
Even the maximum penalty of 14 years’ imprisonment is identical, although there is one striking difference. Whereas Hong Kong’s external interference law requires criminal intent (s.52), the UK’s foreign interference law introduced a lower test. In the UK, a person can be prosecuted not only if he has a criminal intent but also if he is simply “reckless” as to whether there will be an interference effect (s.13), making it easier to prosecute a suspect.
Although concerns have been expressed that the SNSO’s tougher penalties for sedition and the broad definition of state secrets could inhibit freedom of speech and of the media, these are illusory. When the British-era government introduced the sedition law into Hong Kong in 1938, free speech was unprotected, but no longer. Free speech is not only guaranteed by the Basic Law, the ICCPR and by the Hong Kong Bill of Rights, but also by the national security legislation itself. The city has a lively media environment, and, as of Dec 31, 2023, there were 90 daily newspapers and 376 periodicals operating in Hong Kong. International media organizations (including broadcasters) are also very well represented in Hong Kong, and readily speak their minds.
Although there are extraordinary resemblances between Hong Kong’s national security arrangements and those elsewhere, there is one big difference. The Hong Kong laws are human rights heavy, with both the NSL and the SNSO placing human rights protections at the heart of their operations. Whereas the NSL stipulates that “Human Rights shall be respected and protected in safeguarding national security” (Art.4), this is repeated in the SNSO (s.2). Each law also provides that the rights and freedoms which residents enjoy under the International Covenant on Civil and Political Rights “shall be protected” in national security cases. In contrast, the UK’s national security laws, like those of the other jurisdictions I have mentioned, contain no such human rights commitments.
Common law legal system
As elsewhere in the common law world, nobody in Hong Kong can be prosecuted unless there is a reasonable prospect of conviction on the available evidence, and it is in the public interest. There must be a guilty act (actus reus) and a guilty mind (mens rea). At the trial, there will only be a conviction if guilt has been proved beyond reasonable doubt, and this common law principle is always scrupulously observed. Anybody convicted of a crime can challenge the conviction, or sentence, on appeal, a right guaranteed under Hong Kong law.
In 2023, for example, when the former media magnate, Jimmy Lai Chee-ying, exercised his right of appeal, the Court of Appeal quashed his conviction for organizing an unauthorized assembly, because the trial judge had misapprehended the evidence. Lai’s situation has attracted widespread interest, and he is currently undergoing trial on national security charges, including colluding with foreign forces to endanger national security. If convicted, he can again exercise his rights of appeal. Although he is currently imprisoned, this is not, as his UK-based international legal team has claimed, because of “his peaceful campaigning activities, his writing and his journalism.” It is because, on Dec 10, 2022, he was convicted of two fraud charges, and sentenced to 5 years and 9 months’ imprisonment.
Whenever prosecutorial decisions are taken, it is by independent prosecutors. In the British-era, prosecutorial independence was based purely upon convention, but it is now constitutionally guaranteed by the Basic Law (Art.63). Exactly the same is true of the judiciary (Art.85), whose judges swear on appointment to “administer justice without fear or favor, self-interest or deceit.” Operating from their secure bases, our legal personnel take the decisions they believe to be just in cases of whatever type.
This is undoubtedly one of the reasons why, in the World Justice Project’s Rule of Law Index 2023, the world’s leading source for original, independent data on the rule of law, Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed (ahead, for example, of the US (26th), Italy (32nd), Poland (36th), and Greece (47th)).
Thank you!
Grenville Cross is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
