UGCP1002 Hong Kong in the Wider Constitutional Order

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Transcript of the video lecture of Professor Jiang Zhaoxin

National Security in the Wider Constitutional Order

National Security Case Law

Introduction

Hello everyone! In the previous lesson, we explained the relationship between the Constitution
and national security and how China has developed its own holistic approach to national
security. Like other countries in the world, it is committed to maintaining national security and
developing national security capacity by enacting laws. In the previous lesson, we introduced
the basic principles of the Hong Kong legal system for safeguarding national security from a
comparative perspective. We focused on explaining the principles of the rule of law as well as
the responsibilities and institutions for safeguarding national security in the Hong Kong Special
Administrative Region. We also introduced the importance of national security in the global
geopolitical situation. In this lesson, we will discuss several recent framework cases involving
national security to better understand the various offences related to national security, their
corresponding legal provisions, and the application of the law. We will discuss the important
role that these cases played in realizing and consolidating the legal framework of national
security.

It should be noted that as of mid-April 2024, there are 160 substantive judges and judicial
officers in Hong Kong. Only 160.

Andrew Cheung, Chief Justice of the Hong Kong Court of Final Appeal, stated in the “Hong
Kong Judiciary Annual Report 2023” that: “The Judiciary continued to prioritise the processing
of the about 2,500 cases related to the 2019 anti-extradition amendment bill incidents (“anti-
EAB cases”) and national security (“NS cases”). While new cases continued to be brought to
court in 2023, around 92% of these cases have now been concluded.”

According to the above-mentioned official reports, Hong Kong courts handle two types of cases
based on different laws. For the first type of cases “related to the 2019 incident,” valid Hong
Kong laws other than the Hong Kong National Security Law (HKNSL) can be cited as the basis
for judgment. In these cases, judges are not allowed to cite the HKNSL as the basis for
conviction and punishment because the HKNSL is a non-retrospective law that does not apply
to events that occurred before 30 June 2020. The second type covered “national security cases”
that occurred after the HKNSL came into force. Only in cases that occurred after 30 June 2020
can the HKNSL be cited as the legal basis for deciding cases.

It is very important to distinguish between these two types of cases. According to Law and
Order Situation in Hong Kong in 2023: “Since the HKNSL took effect, as of December 31,
2023, Police arrested a total of 290 persons. Amongst them, around 60% have been charged.”
Also, according to the Judiciary Administrator’s Speaking Notes at the Special Meeting of
Finance Committee on 15 April 2024, “With priority allocated to the anti-EAB and NS cases,
the Judiciary had disposed of around 93% of over 2300 anti-EAB cases and around 87% of over

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200 NS cases brought at various levels of court as at end February 2024. The vast majority of
the anti-EAB and NS cases have been set down for trial in 2024 and 2025”.

That is to say, the number of “national security cases” heard by Hong Kong courts accounted
for less than one-tenth of the number of “cases related to the 2019 incident” (200/2500). There
may be a deep misunderstanding in society that the HKNSL was implemented in Hong Kong
to punish participants in the 2019 incident. This view is clearly unfounded and will lead people
to unwarranted anxieties about the possible impact of the HKNSL on Hong Kong society.

In fact, by taking this lesson, we should understand that the HKNSL is, to a large extent,
forward-looking and preventive rather than punitive and retrospective. The above data further
illustrate this point. Here, we need to pay attention to the legislative focus and original intention
of the HKNSL, which are stated as follows by Xia Baolong, Director of the Hong Kong and
Macao Work Office:

“First, the original intention of the HKNSL is to safeguard national security and to
safeguard ‘One Country, Two Systems’, for the good of Hong Kong and Hong Kong
residents. Second, the HKNSL is aimed at the ‘defenceless’ situation of Hong Kong’s
national security. It is targeted against a very small number of people and protects the
majority of Hong Kong residents.”

This lesson will lead you to explore the national security cases in Hong Kong in depth. In the
first part, we will introduce three levels of legal protection for national security: the constitution,
the statutes, and the case law. We will understand the statutes and case law from a comparative
perspective. To put it simply, on the one hand, there are statute laws enacted by the legislature
as the basis of the national security law. On the other hand, there are case law cases related to
national security, which constitute an essential and important component in Hong Kong’s
national security protection.

In the second part of this lesson, on the basis of understanding the connection and the
differences between the statutes and the case law in national security, we will learn about the
normative system established by Hong Kong’s national security law for preventing and
suppressing crimes endangering national security.

From Part 3 to Part 6, we will analyse the national security case law developed by Hong Kong
courts through their judgments. This analysis will include framework cases, such as HKSAR v.
Tong Ying-kit and HKSAR v. Lai Chee-ying, and explore the constitutional significance of
national security judgments generated by Hong Kong courts. You need to pay attention to the
meaning established by these case laws. The concluding section of this lesson will encourage
reflection on the relationship between national security case law and constitutional nationalism.

The structure of this lesson is as follows:

1. National Security Statute and Case Law: Example of the US
2. Nine Offences under Hong Kong’s National Security Laws
3. The Effectiveness and Jurisdiction of Hong Kong’s National Security Laws
4. The First HKNSL case: Tong Ying Kit Case
5. The Hong Kong Court of Final Appeal’s First HKNSL Trial: Lai Chee Ying Case
6. Framework Case Law: Formation of Hong Kong's National Security Case Law
7. Conclusion

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1. National Security Statute and Case Law: Example of the US

In the previous two lessons, we have studied the relationship between the Constitution and
national security, as well as the basic principles and institutions of the National Security Law.
We have seen that national security is a necessary and indispensable component in the text of
the Constitution. As the fundamental law of a country, the Constitution provides the first level
of legal protection for national security.

The second level is statute, which is legislation enacted by the legislatures of different countries;
that is, the legislatures protect national security by enacting many other laws. According to
Professor Harold Hong-ju Koh, former Dean of Yale Law School, the specific rules about the
legal powers and responsibilities in the decision-making process concerning national security
in US government agencies mostly exist in “framework statutes.” This is legislation enacted by
Congress and signed by the President, so its authority comes from the support of both the
executive and the legislature. The most typical example of this type of law in the United States
is the National Security Act of 1947. The national security statutes of the United States are
respectively incorporated into the United States Code Title 6 Domestic Security, 18 Crimes and
Criminal Procedure, Title 22 Foreign Relations and Intercourse, and Title 50 War and National
Defense. They also exist under other Titles in small numbers.

The third level of national security legal protection is case law. The “common law” mentioned
in the Hong Kong Basic Law is case law. According to the explanation provided by the
Department of Justice of HKSAR, “Common law and the rules of equity are to be found
primarily in the judgments of the superior courts in HKSAR and other common law
jurisdictions.” Historically, reports of judgments handed down by judges have, since at least
the 15th century, established in detail the legal principles regulating the relationship between
state and citizen, and between citizen and citizen. There are now some hundreds of thousands
of reported cases in common law jurisdictions which comprise the common law.

The common law’s most distinguishing hallmark is reliance on a system of case precedent, not
restricted to judicial decisions generated within any single jurisdiction, but case law from all
jurisdictions throughout the common law world. Article 84 of the Basic Law provides that the
courts of the HKSAR may refer to the precedents of other common law jurisdictions.

Since national security case law is new to Hong Kong, we need to start with a comparative
perspective in order to gain a better understanding of it. This lesson first introduces provisions
on national security offences and punishments in statutes and then analyzes the case law formed
on the basis of court verdicts. Let’s understand the statutes and then the case law.

1.1 Statute

Let us now turn to statute.

In order to better understand the “Offences and Penalties” in Chapter 3 of HKNSL, we can
compare similar legal provisions in the legislation of the United States Congress.

For example, Chapter 115 of Title 18 of the United States Code has 10 sections of the law
dealing with the crimes and penalties of Treason, Sedition, and Subversive Activities. First,
please note that these US laws criminalize very broad acts: “Whoever incites, sets on foot,
assists, or engages in” or “Whoever knowingly or willfully advocates, abets, advises, or teaches”
actions stipulated in Chapter 115 are guilty. These laws are very broad.

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Second, the penalties prescribed by law in the US are extremely severe, including possible death,
imprisonment up to 20 years or life imprisonment, a fine, and not being able to hold any office
in the United States. The specific content is as follows:

Section 2381 on Treason: “Whoever, owing allegiance to the United States, levies war against
them or adheres to their enemies, giving them aid and comfort within the United States or
elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five
years and fined under this title but not less than $10,000; and shall be incapable of holding any
office under the United States.”

Section 2383 on Rebellion or Insurrection: “Whoever incites, sets on foot, assists, or engages
in any rebellion or insurrection against the authority of the United States or the laws thereof, or
gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years,
or both; and shall be incapable of holding any office under the United States.”

Section 2384 on Seditious Conspiracy: “If two or more persons in any State or Territory, or in
any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or
to destroy by force the Government of the United States, or to levy war against them, or to
oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of
any law of the United States, or by force to seize, take, or possess any property of the United
States contrary to the authority thereof, they shall each be fined under this title or imprisoned
not more than twenty years, or both.”

Section 2385 on Advocating Overthrow of Government: “Whoever knowingly or willfully

advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of
overthrowing or destroying the government of the United States or the government of any State,
Territory, District or Possession thereof, or the government of any political subdivision therein,
by force or violence, or by the assassination of any officer of any such government; …
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be
ineligible for employment by the United States or any department or agency thereof, for the
five years next following his conviction.”

Another example is terrorism. Terrorist activities are condemned by countries all over the world.
There are 22 sections in Chapter 113B under Title 18 of the United States Code concerning
terrorism (§§ Sections 2331-2339D). Let’s look at the definition and punishment of
international terrorism in Sections 2331-2332; details are shown as follows:

The term “international terrorism” means activities that— appear to be intended—

(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.

Section 2332 Criminal Penalties stipulates that: “if the killing is murder (as defined in section
1111(a)), [the person shall] be fined under this title, punished by death or imprisonment for any
term of years or for life, or both...” Some penalty provisions in other parts are omitted here.

In reality, for example, everyone knows more or less about the riots storming the Congress in
the United States on January 6, 2021. According to the statistics of an American scholar in
December 2022: “In all, more than 290 of the more than 910 individuals who’ve been charged
with federal crimes arising from the January 6 incident have been charged under (US Code Title
18) § 1512(c)(2) and will be subject to trials.” So, what does the law say?

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According to Section 1512(C)(2) of Chapter 73 Obstruction of Justice under Title 18 of the US

Code:
“Whoever corruptly — otherwise obstructs, influences, or impedes any official proceeding, or
attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Please pay attention: this is “whoever corruptly obstructs, influences, or impedes any official
proceeding.” They will face such a legal penalty.

Furthermore, according to data provided on the official website of the U.S. Attorney's Office
for the District of Columbia regarding prosecutions related to the January 6, 2021, attack on the
U.S. Capitol, as of January 5, 2024, federal prosecutors had charged 1,132 individuals. Of these,
nine individuals have been tried and sentenced in the U.S. District Court for the District of
Columbia under the charge of seditious conspiracy (18 U.S.C. § 2384). While these cases
represent a small portion of the total, they have resulted in the most severe sentences (see table
below). The sentences imposed by the court range from a minimum of three years to a
maximum of 20 years, with an additional period of supervised release.

Based on the above table, a basic judgment can be made that the penalties for seditious
conspiracy are severe (3 to 20 years). It is important to note that, in addition to imposing a
prison sentence, the court also mandates a period of supervised release. This means that after
completing their prison term, the convicted individuals remain subject to restrictions and
supervision on their personal freedom for a specified duration.

From this example, we can see that the legal provisions of US national security laws cover a
broad area, at least in its terms. And the punishment for crimes endangering national security
is harsh. And in fact, the United States is very strict about the investigation of any crimes that
endanger national security. It is precisely for this reason that there appeared a great number of
cases involving endangering national security in the United States. As a result, the national
security case law, in addition to statute, has clearly formed in the United States.

1.2 Case law: Habeas Corpus Cases in the US

Now, let’s look at case law to understand its basic meaning.

After the 9/11 attacks, we more or less knew that there was a very influential constitutional
movement in the handling of national security cases in the United States federal courts. This
constitutional movement was clearly about whether habeas corpus, as a right guaranteed by the
US Constitution, applies to all persons within the jurisdiction of the United States. Habeas
corpus, in simple terms, is a writ issued by a court to review and determine that no person will
be held unlawfully. In fact, a main focus of US national security cases over the past two decades
has been cases related to habeas corpus. For the convenience of understanding, let’s first look
at the provisions of the writ of habeas corpus in the law of the US. According to Section 2241
under Title 28, United States Code (28 USC § 2241):

“(a) Writs of habeas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuit judge within their respective
jurisdictions.
(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf of an alien
detained by the United States who has been determined by the United
States to have been properly detained as an enemy combatant or is
awaiting such determination.”

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The meaning of writ of habeas corpus seems to be simple, but in practice, especially in cases
involving national security, it is prone to disputes. The most typical example is that the United
States indefinitely detains terrorism suspects in its Guantanamo Bay Detention Camp in Cuba.
Whether the suspects are “enemy combatants” is ambiguous under the law of the US. As a
result, from 2005 to 2008, 226 habeas petitions were filed in the District of Columbia’s district
court on behalf of 561 detainees, primarily those at Guantanamo Bay. All these cases were
heard by judges designated to the US District Court for the District of Columbia. American
scholars, therefore, proposed and sparked heated debates on whether a special “national security
court” should be established. Although the discussion on the establishment of a special national
security court was inconclusive in the end, it provided a meaningful solution to how to solve
the jurisdiction-related and other procedural issues in the trials of cases involving national
security crimes.

According to the report by Robert Reagan, author of the book National Security Case Studies
(2022), the US approach to Guantanamo detainee cases is to designate the judges of a district
court (District of Columbia) as the court (judges) of first instance. The trials presided over by
the designated judges are closed to the public. The specific quotation is, “The very complex
collection of a few hundred petitions for habeas corpus relief from detention at the U.S. Naval
Base at ‘Guantánamo Bay,’ Cuba, is surely a unique case-management challenge for a single
district court and its court of appeals…Although the Classified Information Procedures Act
technically applies only to criminal cases, its procedures were used as guidance for these habeas
corpus cases… A very significant challenge in these cases was the judges’ presiding over
proceedings in which one party was in court and the other party appeared by secure video link.”

After the Guantanamo cases, courts have become more restrained in handling cases related to
national security rather than going their own way. As one U.S. district judge who personally
handled the cases of these detainees observed, before 2010, “detainees won fifty-nine percent
of the first thirty-four habeas corpus cases. They lost ninety-two percent of the last twelve
cases”. After 2010, “the practice of careful judicial fact-finding was replaced by judicial
deference to the government's allegations.” “Now the government wins every petition.”
Although former US President Barack Obama made an executive decision in 2009 to “put an
end to torture” shortly after taking office, and promised to close the prison at Guantanamo Bay,
the prison still exists today. The US is “preparing to keep the site open for another twenty-five
years… Consequently, the minute the executive branch shifted its approach to detainee
adjudication, nearly every potential avenue for enforcing the fundamental right to freedom for
the men still locked up there was foreclosed.”

The brief introduction above to the Guantanamo Prison mainly points out that after the 9/11
attacks in the United States, a large number of applications for habeas corpus appeared in cases
involving national security, most of which were related to the torture of detainees. As a
comparison, the habeas corpus cases involving national security in the Hong Kong SAR are
completely different from those in the United States. That is to say, to investigate Hong Kong's
national security cases, we must think from a comparative perspective. We have to see how
other countries maintain national security and then evaluate whether the laws and the executive
actions of the state and the Hong Kong SAR are reasonable.

2. Nine Offences under Hong Kong’s National Security Laws

On March 19, 2024, the Hong Kong Legislative Council passed the National Security
Ordinance in its third reading. The National Security Ordinance was gazetted and came into
effect on 23 March 2024. According to the statement made by the President of the Legislative
Council upon the bill’s passage, the National Security Ordinance (2024) and the National
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Security Law (2020) “complement and supplement each other, creating a more effective
mechanism for implementing national security safeguards and timely preventing, resisting, and
eliminating national security risks... while also legally protecting the fundamental human rights
and freedoms enjoyed by Hong Kong residents under the Basic Law and relevant international
covenants.”

On the meaning of offence endangering national security, Article 7 of the Hong Kong National
Security Ordinance (HKNSO) has this clear statement:

Meaning of offence endangering national security

To avoid doubt, in this Ordinance or any other Ordinance, a reference to an offence endangering
national security includes—

(a) the four types of offences under the HK National Security Law (which are the offence of
secession, the offence of subversion, the offence of terrorist activities and the offence of
collusion with a foreign country or with external elements to endanger national security;
(b) the offences under the Implementation Rules for Article 43 of the Law of the People’s
Republic of China on Safeguarding National Security in the Hong Kong Special
Administrative Region;
(c) the offences under this Ordinance; and
(d) other offences endangering national security under the law of the HKSAR.

This lesson focuses on the nine offences explicitly established by the National Security
Ordinance (2024) and the National Security Law (2020). Regulations on these nine offences
are “interconnected, compatible, and complementary,” forming a system of offenses related to
safeguarding national security in Hong Kong:

Four offences under HKNSL:

1. Secession
2. Subversion
3. Terrorist Activities
4. Collusion with a Foreign Country or with External Elements to Endanger National Security

Five offences under HKNSO:

1. Treason etc.
2. Insurrection, Incitement to Mutiny and Disaffection, and Acts with Seditious Intention, etc.
3. Offences in connection with State Secrets and Espionage
4. Sabotage Endangering National Security etc.
5. External Interference Endangering National Security and Organizations Engaging in
Activities Endangering National Security

We first introduce the offences listed in Chapter 3 of HKNSL and their corresponding
punishments (a total of 11 articles, Articles 20 to 30). First, we need to pay attention to the
scope of the offences in Chapter 3. They are limited to four types of behaviour related to
national security: secession, subversion, terrorist activities and collusion with foreign forces.

First, all these behaviours are radical and extreme. They have clear intentions of offence. They
aim at “committing secession or undermining national unification” or “subverting the State
power.” Clearly, these offences crimes are beyond the contemplation of any law-abiding Hong
Kong citizen.

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Secondly, consistent with the degree of harm caused by these offences, HKNSL stipulates a
punishment system based on different levels. “A person who organises, plans, commits or
participates in” either secession or subversion, “whether or not by force or threat of force”,
“shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years”,
“shall be sentenced to fixed-term imprisonment of not less than three years but not more than
ten years” or “shall be sentenced to fixed-term imprisonment of not more than three years,
short-term detention or restriction.” “A person who incites, assists in, abets or provides
pecuniary or other financial assistance or property for” secession or subversion, the penalty
ranges from “imprisonment of not less than five years but not more than ten years” to “fixed-
term imprisonment of not more than five years, short-term detention or restriction.” Individuals
can be given a sentence of a criminal fine or confiscation of property (Article 25-27) or
companies (Article 31).

In addition, HKNSL also provides judges with room for discretion when considering
commutation factors. In accordance with Article 33 of the HKNSL. “A lighter penalty may be
imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an
offender, criminal suspect, or defendant:

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

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

These are all provisions for the commutation of sentences.

Now, let us take a closer look at the four types of national security offences delineated in
HKNSL:

2.1 Secession

Articles 20 to 21 of HKNSL define the offence of secession.

Articles 20 to 21 define the offence of secession as subsuming three main acts:

“(1) separating the Hong Kong Special Administrative Region or any other part of
the People’s Republic of China from the People’s Republic of China;
(2) altering by unlawful means the legal status of the Hong Kong Special
Administrative Region or of any other part of the People’s Republic of China;
(3) surrendering the Hong Kong Special Administrative Region or any other part
of the People’s Republic of China to a foreign country.”

Secession is criminalized because it violates two fundamental articles in the Hong Kong Basic
Law. Article 1: “The Hong Kong Special Administrative Region is an inalienable part of the
People’s Republic of China.” Article 12: “The Hong Kong Special Administrative Region shall
be a local administrative region of the People’s Republic of China, which shall enjoy a high
degree of autonomy and come directly under the Central People’s Government.” This has been
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supported by the Hong Kong courts. Paragraph 15 of the judgment on Tang Ying Kit's case
states that: “Accordingly, in our view, any person in the HKSAR who commits secession or
carries out any act undermining national unification or inciting other persons to do so must be
suitably punished for contravening such fundamental provisions in the Basic Law. Moreover,
the punishment must have as its aim a general deterrent effect on the community as a whole, as
well as a specific deterrent effect on the individual in question.” (See HKSAR v. Tong Ying-
kit [2021] HKCFI 2239, paragraph 15)

2.2 Subversion

Let’s learn the offence of subversion.

Articles 22 to 23 of HKNSL define the offence of subversion of state power as subsuming the
following four acts:
(1) overthrowing or undermining the basic system of the People’s Republic of China
established by the Constitution of the People’s Republic of China;
(2) overthrowing the body of central power of the People’s Republic of China or the body of
power of the Hong Kong Special Administrative Region;
(3) seriously interfering in, disrupting, or undermining the performance of duties and functions
in accordance with the law by the body of central power of the People’s Republic of China
or the body of power of the Hong Kong Special Administrative Region;
(4) attacking or damaging the premises and facilities used by the body of power of the Hong
Kong Special Administrative Region to perform its duties and functions, rendering it
incapable of performing its normal duties and functions.

These four types of subversive acts directly challenge the constitutional order of the entire
Chinese nation and the constitutional order established by the Constitution and the Hong Kong
Basic Law within the Hong Kong SAR. In other words, subversive activities constitute national
security offences because they pose a fundamental threat to the constitutional power and
authority of the State and the HKSAR, threatening the core values of an effective government.

We compare it with laws about subversive activities in Section 2384 in Chapter 115 under Title
18 of the US Code. We have mentioned Section 2384 on Seditious conspiracy and Section 2385
on Advocating Overthrow of Government. Thus, we understand the meaning and reasonability
of Articles 22 and 23 of HKNSL. It is worth noting that seditious conspiracy and advocating
overthrow of Government are criminalized in the US. The penalties under US law are much
harsher than those of HKNSL. According to Section 1512(c)(2) in Chapter 73 under Title 18,
“whoever… obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.”

Nevertheless, the United States Code and Article 35 of HKNSL clearly have one thing in
common, that is, people convicted of crimes under the National Security Law “should” be
disqualified or disqualified from running for election or holding government office. You need
to pay attention to this.

2.3 Terrorist Activities

Article 24 of the HKNSL on terrorism targets acts “with a view to coercing the Central People’s
Government, the Government of the Hong Kong Special Administrative Region or an
international organisation or intimidating the public in order to pursue political agenda.” They
include:

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“(1) serious violence against a person or persons;

(2) explosion, arson, or dissemination of poisonous or radioactive substances,
pathogens of infectious diseases or other substances;
(3) sabotage of means of transport, transport facilities, electric power or gas
facilities, or other combustible or explosible facilities;
(4) serious interruption or sabotage of electronic control systems for providing
and managing public services such as water, electric power, gas, transport,
telecommunications and the internet; or
(5) other dangerous activities which seriously jeopardise public health, safety or
security.”

If we compare the above with Section 2331-2332 on terrorist activities in Chapter 113B under
Title 18 of the US Code, the penalty for acts of terrorism in the US may involve death penalties.

2.4 Collusion with a Foreign Country or with External Elements to Endanger National
Security

Let’s look at the fourth offence that is “Collusion with a Foreign Country or with External
Elements to Endanger National Security.”

According to Articles 29 to 30, Chapter 3 Part 4 of HKNSL, anyone who commits the five types
of behaviour listed below, whatever its “intent” or “purpose,” may constitute collusion with a
Foreign Country or with External Elements to Endanger National Security. In other words, as
long as these acts are taken and lead to serious consequences, this legal provision applies. These
acts include:
“(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.”

From the description above, it is important to see that the offence of “collusion” does not mean
conviction or punishment for normal communication with foreigners. Articles in HKNSL
strictly target acts that lead to the possibility of “waging a war against the People’s Republic of
China,” “seriously disrupting the formulation and implementation of laws or policies,” “rigging
or undermining an election,” “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 “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.”

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All in all, for any law-abiding citizen, it would be hard to imagine stepping near the bottom line
of national security, let alone infringing it. The freedoms guaranteed by the Hong Kong Basic
Law and those within the scope of the HKNSL are the same. Let’s think about it: secession,
subversion, terrorist activities and collusion with a foreign country or with external elements to
endanger national security. These are the radical acts that no rational person will do. But
anyway, we must be aware that since there are national security cases in Hong Kong’s courts,
there are indeed acts that violate the HKNSL. We must still be on alert.

2.5 Five Offences under in the Hong Kong National Security Ordinance

Now, let’s examine and understand the five offences endangering national security stipulated
in Parts 2 to 6 of the National Security Ordinance (2024). Since the provisions of the Hong
Kong National Security Ordinance on each offence are very detailed, and due to time
constraints, it is not possible to describe the provisions of each offence one by one in this course.
Therefore, I will only list the provisions of some of the offences to facilitate everyone's
understanding.

Let’s talk about the offences related to treason.

1. Offences related to Treason

For example in Article 10(1): Treason

(1) A Chinese citizen who—
(a) joins an external armed force that is at war with China, or is a part of the armed force;
(b) with intent to prejudice the situation of China in a war, assists an enemy at war
with China in a war;
(c) levies war against China;
(d) instigates a foreign country or an external armed force to invade China with force; or
(e) with intent to endanger the sovereignty, unity or territorial integrity of China, uses
force or threatens to use force, commits an offence and is liable on conviction on
indictment to life imprisonment.

For example in Article 11: Publicly manifest intention to commit offence of treason, “A Chinese
citizen who intends to commit an offence under section 10(1) and publicly manifests such
intention commits an offence and is liable on conviction on indictment to imprisonment for 14
years.”

2. Insurrection, Incitement to Mutiny and Disaffection, and Acts with Seditious

Intention, etc.

For example in Article 15: Insurrection

If—
(a) a person joins an armed force, or is a part of an armed force, that is in an armed conflict
with a Chinese armed force;
(b) a person, with intent to prejudice the situation of a Chinese armed force in an armed
conflict, assists an armed force (that armed force) that is in an armed conflict with a
Chinese armed force, or assists the government, authority or organization to which that
armed force belongs;
(c) a person initiates armed conflict against a Chinese armed force; or
(d) a person— (i) with intent to endanger the sovereignty, unity or territorial integrity of
China or the public safety of the HKSAR as a whole; or (ii) being reckless as to whether
the sovereignty, unity or territorial integrity of China, or the public safety of the HKSAR
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as a whole, would be endangered, does a violent act in the HKSAR, the person commits
an offence and is liable on conviction on indictment to life imprisonment

For example in Article 24: Offences in connection with seditious intention

(1) A person who—

(a) with a seditious intention—
(i) does an act that has a seditious intention; or
(ii) utters a word that has a seditious intention;
(b) knowing that a publication has a seditious intention, prints, publishes, sells, offers
for sale, distributes, displays or reproduces the publication; or
(c) imports a publication that has a seditious intention, commits an offence and is liable
on conviction on indictment to imprisonment for 7 years.
(2) A person who colludes with an external force to do the following—
(a) with a seditious intention—
(i) do an act that has a seditious intention; or
(ii) utter a word that has a seditious intention;
(b) knowing that a publication has a seditious intention, print, publish, sell, offer for sale,
distribute, display or reproduce the publication; or
(c) import a publication that has a seditious intention, commits an offence and is liable
on conviction on indictment to imprisonment for 10 years.
(3) A person who, without reasonable excuse, possesses a publication that has a seditious
intention commits an offence and is liable on conviction on indictment to imprisonment
for 3 years.

It is important to note the significance of the first case judgment under the Hong Kong National
Security Ordinance. On September 19, 2024, the West Kowloon Magistrates’ Courts of the
HKSAR made two sentences in cases involving violations of Section 24(1)(a)(i) of the National
Security Ordinance (6 of 2024), which prohibits “doing an act or acts with seditious intention.”
The court found that the defendants’ “seditious words advocated for the HKSAR government
to separate from the governance of the Central Government, thereby disrupting social order and
public peace, seriously endangering national unity and territorial integrity. If the law does not
intervene promptly and allows such individual acts of sedition to occur, the cumulative effect
could lead to renewed social unrest. Therefore, the sentences must fully reflect the legislative
intent of preventing such occurrences and the preventative nature of the offence.” (See HKSAR
v. Chu Kai-pong [2024] HKMagC 6, para. 44; HKSAR v. Chung Man-kit [2024] HKMagC 7,
para. 27.)

Now, let’s look at the third offence:

3. Offences in connection with State Secrets and Espionage

We need to pay attention to Article 29: “state secret means one of the following secrets the
disclosure, without lawful authority, of which would likely endanger national security—
(a) a secret concerning major policy decision on affairs of China or the HKSAR;
(b) a secret concerning the construction of national defence of China or concerning a Chinese
armed force;
(c) a secret concerning diplomatic or foreign affair activities of China, a secret concerning
external affairs of the HKSAR, or a secret that China or the HKSAR is under an external
obligation to preserve secrecy;
(d) a secret concerning the economic or social development of China or the HKSAR;

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(e) a secret concerning the technological development or scientific technology of China or

the HKSAR;
(f) a secret concerning activities for safeguarding national security or the security of the
HKSAR or for the investigation of offences;
(g) a secret concerning the relationship between the Central Authorities and the HKSAR
(including information on affairs relating to the HKSAR for which the Central Authorities
are responsible under the Basic Law).

Now let’s look at the fourth offence.

4. Sabotage Endangering National Security etc.

For example, Article 49: Sabotage endangering national security

(1) A person commits an offence and is liable on conviction on indictment to imprisonment
for 20 years if the person—
(a) with intent to endanger national security; or
(b) being reckless as to whether national security would be endangered,
damages or weakens a public infrastructure.
(2) A person commits an offence and is liable on conviction on indictment to life
imprisonment if the person—
(a) with intent to endanger national security; or
(b) being reckless as to whether national security would be endangered,
colludes with an external force to damage or weaken a public infrastructure

Now let’s turn to the fifth offence.

5. External Interference Endangering National Security and Organizations Engaging in

Activities Endangering National Security

For example, Article 52:

External interference endangering national security
A person who—
(a) with intent to bring about an interference effect, collaborates with an external force to do
an act; and
(b) uses improper means when so doing the act, commits an offence and is liable on
conviction on indictment to imprisonment for 14 years

Above are the nine offences established by the legal system for safeguarding national security
in Hong Kong.

Let’s now turn to Part 3.

3. The Effectiveness and Jurisdiction of Hong Kong’s National Security Laws

Regarding the effectiveness of national security laws in Hong Kong, according to Chapter 6 of
the National Security Law and Section 9 of the National Security Ordinance.

We have to pay attention to the following things:

First, HKNSL (2020) applies to anyone who commits the offences listed in Chapter 3 in or
outside Hong Kong. According to Chapter 3, Section 6 (Scope of Application) of HKNSL:

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Article 36:
This Law shall apply to offences under this Law which are committed in the Hong Kong Special
Administrative Region by any person. An offence shall be deemed to have been committed in
the Region if an act constituting the offence or the consequence of the offence occurs in the
Region.
This Law shall also apply to offences under this Law committed on board a vessel or aircraft
registered in the Region.

Article 37:
This Law shall apply to a person who is a permanent resident of the Hong Kong Special
Administrative Region or an incorporated or unincorporated body such as a company or an
organisation which is set up in the Region if the person or the body commits an offence under
this Law outside the Region.

Article 38:
This Law shall apply to offences under this Law committed against the Hong Kong Special
Administrative Region from outside the Region by a person who is not a permanent resident of
the Region.”

From HKNSL Article 36 to Article 38 in Part 6, we can see that this law forms an all-round
protection for national security. It applies to whoever commits an offence in the four categories
in whatever place. As long as there is an offence, he or she will be convicted according to
national security laws.

It should be noted that the Hong Kong National Security Ordinance (2024) has slightly different
provisions on the scope of jurisdiction than the HKNSL 2020. According to Article 9 of the
Hong Kong National Security Ordinance: “Unless otherwise provided in a provision, an offence
under this Ordinance applies to every person in the HKSAR. If an offence has extra-territorial
effect, the extra-territorial effect is provided in the relevant Part.”

Second, according to Article 99 of the Hong Kong National Security Ordinance: “any case in
connection with an offence under this Ordinance is a case mentioned in Article 41 of the HK
National Security Law, and the procedure under Chapter IV of the Hong Kong National
Security Law applies to such a case.” According to Article 100 of the Hong Kong National
Security Ordinance: “If a case adjudicated by a Court is a case concerning national security by
virtue of section 3(2)(b), the case must be adjudicated by a designated judge.” In view of this,
we can understand the jurisdictional issue involving national security cases by understanding
the provisions of the Hong Kong National Security Law (2020).

According to the principle of human rights and the rule of law in Articles 4 and 5 of HKNSL,
judges designated by the Chief Executive have jurisdiction over most cases (Articles 40-47).
Article 44 of the HKNSL stipulates that the “designated judges” are in charge of the cases:

“Article 44 The Chief Executive shall designate a number of judges from the
magistrates, the judges of the District Court, the judges of the Court of First Instance
and the Court of Appeal of the High Court, and the judges of the Court of Final
Appeal, and may also designate a number of judges from deputy judges or recorders,
to handle cases concerning offence endangering national security. Before making
such designation, the Chief Executive may consult the Committee for Safeguarding
National Security of the Hong Kong Special Administrative Region and the Chief
Justice of the Court of Final Appeal. The term of office of the aforementioned
designated judges shall be one year.
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A person shall not be designated as a judge to adjudicate a case concerning offence

endangering national security if he or she has made any statement or behaved in
any manner endangering national security. A designated judge shall be removed
from the designation list if he or she makes any statement or behaves in any manner
endangering national security during the term of office.

The proceedings in relation to the prosecution for offences endangering national

security in the magistrates’ courts, the District Court, the High Court and the Court
of Final Appeal shall be handled by the designated judges in the respective courts.”

It has been mentioned above that in cases involving national security, for example in the case
of Guantanamo Prison with regard to habeas corpus, the US also had designated judges. As has
been mentioned, all of these cases were “heard by judges designated to the US District Court
for the District of Columbia.” Rules for designating judges in HKNSL involve reasonable
consideration of national security. We can understand this from a comparative perspective.

Third, in terms of jurisdiction, cases involving national security are generally heard by the Hong
Kong Special Administrative Region, with only one exception requiring the intervention of
state agencies. According to Article 55, the Office for Safeguarding National Security of the
Central People’s Government of the People’s Republic of China in the Hong Kong Special
Administrative Region shall exercise jurisdiction over a case concerning offence endangering
national security under this Law, if:

“1. the case is complex due to the involvement of a foreign country or external
elements, thus making it difficult for the Region to exercise jurisdiction over
the case;
2. a serious situation occurs where the Government of the Region is unable to
effectively enforce this Law; or
3. a major and imminent threat to national security has occurred.”

Shen Chunyao, Director of the Legislative Affairs Committee of the Standing Committee of
the National People’s Congress, gave an authoritative interpretation of the legislative purpose
of Article 55 of HKNSL. According to Shen Chunyao, the state’s jurisdiction in Article 55 only
applies to “an extremely small number of crimes endangering national security,” the most
serious and consequential ones. Another benefit of state jurisdiction is to help avoid “a state of
emergency” stipulated in Article 18 of the Basic Law. The article said: “In the event that the
Standing Committee of the National People’s Congress decides to declare a state of war or, by
reason of turmoil within the Hong Kong Special Administrative Region, which endangers
national unity or security and is beyond the control of the government of the Region, decides
that the Region is in a state of emergency, the Central People’s Government may issue an order
applying the relevant national laws in the Region.” Director Shen Chunyao reaffirms that the
state’s jurisdiction over a very small number of cases provides “a low-intensity way to maintain
the national security of the Hong Kong Special Administrative Region and to prevent and avoid
serious situations. So, this institutional arrangement is an important content of this legislation.”

Director Shen Chunyao’s explanation on behalf of the Standing Committee of the National
People’s Congress is of great significance. The legislation of HKNSL is to carefully pre-empt
the declaration of a state of emergency in Hong Kong. From this point of view, HKNSL is not
an emergency law but a law whose purpose is to avoid the state of emergency.

4. The First HKNSL Case: Tong Ying Kit case

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Now, let’s study the first Hong Kong national security law case: the case of Tong Ying Kit.
Let’s first get a brief introduction to the case.

4.1 Introduction to the Case

On 1 July 2020, after the enactment of the National Security Law, Tong Ying Kit (referred to
as Tong later) was riding a motorcycle at high speed in a densely populated area. He was
carrying a backpack and then took out a flag with separatist slogans from the backpack. Tong
displayed it to the public. Eventually, Tong rammed his motorcycle into a group of police
officers, hurting three of them. Tong was arrested on the spot and later charged with inciting
secession and terrorist activities.

On 3 August 2020, Tong applied to the court for a writ of habeas corpus, questioning that Item
2 of Article 42 of HKNSL was an unconstitutional clause of “no bail,” Tong also questioned
some other provisions of HKNSL, especially whether Articles 20, 21, and 24 conform to the
Constitution.

We should pay attention to the meaning of “bail.” According to 9D in Chapter 221 of Hong
Kong Ordinance “Criminal Procedure Ordinance”:

“Subject to this section and section 9G, a court shall order an accused person to be
admitted to bail, whether he has been committed for trial or not, when—
(a) he appears or is brought before a court in the course of or in connection with
proceedings for the offence of which he is accused; or
(b) he applies to the court before which he is accused to be admitted to bail …”

According to Section 9G, the court can refuse bail in certain circumstances:
“The court need not admit an accused person to bail if it appears to the court that
there are substantial grounds for believing…that the accused person would—
(a) fail to surrender to custody as the court may appoint; or
(b) commit an offence while on bail; or
(c) interfere with a witness or pervert or obstruct the course of justice.”

In short, from the provisions of Hong Kong’s Criminal Procedure Ordinance, we know that bail
is a right enjoyed by any legally detained and accused person in criminal proceedings, but this
right is not unrestrictable. Bail has a very different meaning than a writ of habeas corpus. The
purpose of a writ of habeas corpus is to ensure that individuals will not be unlawfully detained.

In short, habeas corpus is what is stipulated by Section 22A (5)(a)(b) in the High Court
Ordinance. That is, when a person may be detained illegally, the court orders that person be
brought to court for review by a judge to determine whether the detention is lawful.

In the judgment of Tong Ying Kit’s application for a writ of habeas corpus, the court's views
can be summarized as follows, which can be found in the judgment of the case:
(1) The Applicant has adopted a wrong procedure to challenge the Order.
(2) The Applicant’s detention is pursuant to a court order made by the Chief Magistrate in
the discharge of his ordinary judicial powers, and cannot be said to be without lawful
authority.
(3) Article 42(2) is not a “no bail” provision.
(4) A number of judges at different levels of the courts in Hong Kong are designated by the
Chief Executive to handle cases concerning offences endangering national security. The
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actual assignment of a judge to hear any particular case remains the sole responsibility of
the Judiciary.
(5) The prescription of ranges of sentences by Articles 20, 21 and 24 for persons found guilty
of having committed offences under those articles, leaving it open to the judge to
determine the appropriate sentence based on the facts and circumstances of any given
case, is not objectionable in principle.
(6) The National Security Law is fully accessible to the Applicant and cannot be said to
unreasonably restrict his right to choice of counsel, notwithstanding the absence of an
authentic English text of the National Security Law.

It can be seen from the judgment of Tong Ying Kit’s case on habeas corpus that the court
affirmed the constitutionality and authority of HKNSL as a whole and the specific provisions
involved in this case. Here, let us recall that the premise of the habeas corpus issue for the
detainees in the US Guantanamo Prison we mentioned above is that there was a problem of
“torture” in the prison. Whether the detainees were “enemy combatants” is also ambiguous. So,
the detainees did everything possible to resort to the courts and ask for help. In Tong Ying Kit's
case, all the litigation rights of the detainee were fully protected, and the trial was conducted by
the court in accordance with HKNSL and Hong Kong's local laws. In comparison, we will
understand that national security cases in Hong Kong are at least based on the principle of the
rule of law. Therefore, the judgment of the Hong Kong court in the Tong Ying Kit case is of
great value.

4.2 Judgement of the Tong Ying Kit case

Let’s look at the Judgment of the Tong Ying Kit case.

On July 27, 2021, the Court convicted Tong Ying Kit on two counts. The court found that:

“(1) having regard to the natural and reasonable effect of displaying the flag
with the words ‘LIBERATE HONG KONG (光復香港), REVOLUTION
OF OUR TIMES (時代革命)’ on it and in the particular circumstances of
this case, such display of the words was capable of inciting others to
commit secession;
(2) at the material time, the Defendant himself understood the Slogan to carry
a secessionist meaning, that is, separating the HKSAR from the PRC;
(3) when the Defendant displayed the Slogan in the manner he did, he intended
to communicate the secessionist meaning of the Slogan to others and he
intended to incite others to commit secession by separating the HKSAR
from the PRC;
(4) the Slogan is a political agenda advocated by the Defendant at the time;
(5) the Defendant’s failure to stop at all the police checklines, eventually
crashing into the police, was a deliberate challenge mounted against the
police, a symbol of Hong Kong’s law and order;
(6) the Defendant’s acts had caused grave harm to the society; and
(7) the Defendant carried out those acts with a view to intimidating the public
in order to pursue political agenda.”

In short, as shown in Annotations of the Hong Kong National Security Law and sedition
offences in the Crimes Ordinance, in HKSAR v. Tong Ying-kit [2021] HKCFI 2200, the Court
of First Instance of the High Court ruled that the slogan “Liberate Hong Kong, Revolution of
Our Times" must be considered as a whole phrase or slogan. The focus should be on whether

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the words or message in question are capable of inciting others to commit the offence and not
on whether the slogan has only that single meaning. Considering the natural and reasonable
effect of displaying a flag bearing the slogan in the specific circumstances of the case and taking
into account the relevant background matters, the court held that the slogan was capable of
bearing the meaning of separating the HKSAR from the People's Republic of China on 1 July
2020 and that displaying the slogan in such a manner was capable of inciting others to commit
the offence of secession. (See paragraphs 135, 137, 141, and 171(1)).

4.3 The Constitutional Significance of the Judgment of the First HKNSL Case

What is the constitutional significance of the Judgment of the First HKNSL Case?

The first judgment through “HKNSL” is of great significance to the establishment and
consolidation of Hong Kong's constitutional order. Its importance can be summarized in the
following three aspects:

(1) Direct legal connection between the nation and Hong Kong residents

The primary significance of this first judgment involving HKNSL is to establish a direct
legal connection between the nation and the residents in the Hong Kong SAR through the
application of HKNSL. This point should be the most important significance that the
judgment result of this case can produce.

For a long time after Hong Kong returned to China, the Hong Kong Basic Law was largely
regarded as the only legal connection between Hong Kong residents and the nation. In
other words, the Basic Law was regarded as the only legal and effective way to create a
meaningful connection between the nation and individuals in Hong Kong. Therefore, all
of China’s legal norms, systems, and value systems outside the scope of the Basic Law,
as well as China's progress in the Constitution and the constitutional order, were excluded
in Hong Kong. Correspondingly, national security was also excluded from Hong Kong
residents’ understanding of their connection with China’s laws because Article 23 of the
Basic Law was not successfully implemented through local legislation.

Therefore, the enactment of the HKNSL has established a direct link between Hong Kong
residents and the nation in terms of normative effect. At the same time, because of the
pluralism in the definition of national security, this direct legal connection will therefore
be comprehensive. The most direct example is the establishment of the red lines with
regard to secession, terrorism, etc. In terms of practice, courts, as the defense line for
national security of the nation and the people, act as the party that draws the red line
(conviction and punishment). Simply put, through judgements, the courts have
established the most direct dialogue between the nation and the residents over national
security.

(2) The institutional development of the nationalist functions of Hong Kong courts

From a comparative perspective of national security laws, contents concerning national

security are most often related to "diplomacy and national defense". They are national
affairs and involve jurisdiction of national security laws. For instance, in the US, they are
under federal jurisdiction. Under China's constitutional system of "One Country, Two
Systems", the courts of the Hong Kong SAR have obtained the "jurisdiction over state
affairs" based on the HKNSL. Their institutional functions have been expanded
accordingly. That is to say, the Hong Kong courts have acquired new functions based on
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the original institutional functions, instead of substantively changing or replacing the

original functions. Thus, the process of establishing the case law aimed at national
security must involve judicial nationalism as part of its formation.

Regardless of the extent of dispute regarding the designation of judges, with the
implementation of the National Security Law, Hong Kong courts will inevitably form a
new principle and tradition of judicial nationalism. Future research on the HKNSL will
inevitably involve the tradition of judicial nationalism in Hong Kong courts based on
“jurisdiction over national affairs.”

(3) The significance of the “Framework Case” of HKNSL

This case may probably become a framework case for HKNSL. It has important precedent
value. It also has a more profound influence on the overall historical development of
national security law.

For example, within the US national security law system, considering its history of more
than 200 years, framework cases that can be seen to have a significant and lasting
influence definitely include the United States v. Curtiss-Wright Export Corp in 1936 and
the Youngstown Sheet & Tube Co. v. Sawyer in 1952. The legal principles of balanced
institutional participation and cooperation in the National Security Law, created by these
two cases, continue to exert an influence today. Accordingly, due to the shortage of
framework cases, in the US practice of national security laws, judgment according to the
law largely means judgment according to statutes rather than case law or common law.
The reason is simple. US courts are always self-restrained. They defer to the executive
orders of the president and the laws enacted by Congress. Thus, the courts are unlikely to
form national security laws based on the case law.

For the development of HKNSL, the framework cases not only have the value of
precedence. They will fundamentally affect the institutional formation and the core
principles related to the HKNSL because of their importance in setting a precedent.

All in all, regarding the constitutional significance of the first judgment through HKNSL,
it is necessary to pay attention to the establishment of a direct legal relationship between
the nation and Hong Kong residents, the institutional development of the nationalist
functions of Hong Kong’s courts, and the significance of the framework cases under
HKNSL, with its three layers of meaning.

5. The Hong Kong Court of Final Appeal’s First HKNSL Trial: Lai Chee Ying Case

Below, we discuss the application issue of the HKNSL involved in Lai Chee Ying’s bail case.

5.1 Case Facts and Legal Issues

The facts involved in this case are quite clear. Lai Chee Ying, the founder of Hong Kong Next
Media, was alleged to have violated the provisions of Article 29 (4) of the HKNSL over
“collusion with a foreign country or with external elements to endanger national security”:
“imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong
Special Administrative Region or the People’s Republic of China.” After being investigated
and prosecuted by the National Security Department of the Hong Kong Police Force, the case
was sent to the Hong Kong Magistrates’ Court on 12 December 2020. Lai Chee Ying was
charged with requesting a foreign or external institution, organisation, or individual to impose
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sanctions or blockade, or engage in other hostile activities against the Hong Kong Special
Administrative Region or the People’s Republic of China. Whether Lai's behaviour constitutes
an offence endangering national security and how to determine the conviction will be heard and
decided by the court in the future. What is involved in the ruling of the Hong Kong Court of
Final Appeal on 9 February 2021 is a procedural issue, that is, whether Lai’s application for
bail should be approved in accordance with the relevant provisions of HKNSL. More
importantly, it is about how the court should interpret the original intention and purpose of the
related provisions of HKNSL and what principles judges should follow in trying HKNSL cases.

According to Article 42 of HKNSL: “When applying the laws in force in the Hong Kong
Special Administrative Region concerning matters such as the detention and time limit for trial,
the law enforcement and judicial authorities of the Region shall ensure that cases concerning
offence endangering national security are handled in a fair and timely manner so as to
effectively prevent, suppress and impose punishment for such offence. No bail shall be granted
to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the
criminal suspect or defendant will not continue to commit acts endangering national security.”

From its wording, this article is about two principles of bail:

The first is the principle of “a fair and timely manner” applied to bail over national security
issues “so as to effectively prevent, suppress and impose punishment for such offence”. The
word “fair” implies the state’s consideration and respect for both national laws and Hong Kong
common law traditions, according to Paragraph 1 of Article 42.

The second is that the bail shall be granted to a criminal suspect or defendant only when the
judge has sufficient grounds for believing that the criminal suspect or defendant will not
continue to commit acts endangering national security; otherwise, no bail. This article involves
the first principle of bail, that is, whether bail is granted or not, attention needs to be paid to the
“fair and timely manner” in dealing with national security offences; secondly, it is about the
technical consideration of the judges on whether bail can be granted, that is, “No bail…unless…”

However, in the actual handling of the case, judges had very different interpretations of Article
42, especially the second paragraph. In the case of Lai Chee Ying, the Chief Magistrate of the
Hong Kong Magistrates' Court refused to grant bail and remanded Lai in custody. The Chief
Magistrate stated in the third paragraph that: “there were substantial grounds for believing that
the accused would fail to surrender to custody or commit an offence while on bail. His reasons
for forming that opinion included the nature and seriousness of the alleged offence.”

However, on 23 December 2020, the designated judge of the High Court approved Lai’s
application for bail in accordance with Article 9J of Hong Kong’s Criminal Procedure
Ordinance on “Review of refusal of bail or conditions of bail” with 12 additional conditions. In
the view of the designated High Court judge, if bail is granted with sufficient bail conditions,
the judge can have "sufficient grounds for believing” that the accused will not continue to
commit acts endangering national security. In doing so, the effect of Article 42 (2) of the
HKNSL was actually bypassed, and the bail system under the National Security Law was
handled in full accordance with the relevant provisions of the “Criminal Procedure Ordinance”
of the Hong Kong Special Administrative Region.

As mentioned, there are different understandings of the law. Due to the difference in the legal
understandings, there are conflicting decisions. HKSAR’s Department of Justice sought “the
Court of Final Appeal’s ruling on the correct interpretation of Article 42(2) of the National
Security Law.” The Appeal Committee of the Hong Kong Court of Final Appeal found that
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“great and general importance is involved in the decision” of the High Court's decision on bail
and decided to accept it. The Court of Final Appeal, consisting of five judges, including Chief
Justice Andrew Cheung Kui-nung, accepted the case and interpreted the relevant legal
provisions.

5.2 Judgment of the Hong Kong Court of Final Appeal

Now, let’s look at the judgment of the Hong Kong Court of Final Appeal.

The Hong Kong Court of Final Appeal established the fundamental principles for interpreting
Article 42 (2). Paragraph 8 of the Court of Final Appeal’s judgment on the Lai Chee Ying’s
bail case on 8 February 2021 stated that: “Determination of the meaning and effect of NSL 42(2)
requires that provision to be examined in the light of the context and purpose of the NSL as a
whole, taking into account the constitutional basis upon which the NSL is applied in the
HKSAR.” Obviously, this is a holistic approach to judicial interpretation. It considers not only
the original intention of the legislation, but also the practical feasibility. It takes into account
both the central and the local governments. Based on the holistic approach to interpretation, the
final views of the judges of the Court of Final Appeal are shown in the following six basic
principles, which can be seen from the statement in paragraph 70 of the judgment:

1. The principle of judicial deference. “The legislative acts of the NPC (National People’s
Congress) and NPCSC (Standing Committee of the National People's Congress) leading to
the promulgation of the NSL as a law of the HKSAR in accordance with the provisions of
the Basic Law and the procedure therein, are not subject to constitutional review by the
Court on the basis of any alleged incompatibility as between the NSL and the Basic Law
or the ICCPR (International Covenant on Civil and Political Rights) as applied to Hong
Kong.”

2. The principle that the threshold for bail is higher if the case involves national security: NSL
42(2) creates a specific exception to the HKSAR rules and principles governing the grant
and refusal of bail, and imposes a stringent threshold requirement for bail applications.

3. The principle of integrity and non-discrimination in legal application: NSL 42(2) is to be

construed and applied with the guarantees of human rights and the rule of law values
affirmed by NSL 4 and NSL 5, as well as with the general procedural rules made applicable
by NSL 41 and NSL 42, read as a coherent whole.

4. The holism principle used to determine if there are “sufficient grounds”: In applying NSL
42(2) when dealing with bail applications in cases involving offences endangering national
security, the judge must first decide whether he or she “has sufficient grounds for believing
that the criminal suspect or defendant will not continue to commit acts endangering
national security.”

5. The lawful restriction of the presumption of bail: If, having taken into account all relevant
material, the judge concludes that he or she does not have sufficient grounds for believing
that the accused will not continue to commit acts endangering national security, bail must
be refused.

6. The principle of the rule of law in bail: If, on the other hand, the judge concludes that taking
all relevant material into account, he or she does have such sufficient grounds, the court
should proceed to consider all other matters relevant to the grant or refusal of bail, applying
the presumption in favour of bail. This includes consideration of whether there are
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substantial grounds for believing that the accused would fail to surrender to custody, or
commit an offence (not limited to national security offences) while on bail, interfere with
a witness or pervert or obstruct the course of justice. Consideration should also be given to
whether conditions aimed at securing that such violations will not occur ought to be
imposed.

To sum up, Lai Chee Ying’s case is a landmark case in the national security case law of the
Hong Kong Special Administrative Region. The significance of this case as a precedent is
reflected in the six basic principles in the Court of Final Appeal’s interpretation of Article 42(2):
the principle of judicial deference; the principle that the threshold for bail is higher if the case
involves national security; the principle of integrity and non-discrimination in legal application;
the holism principle used to determine if there are “sufficient grounds”; the exception to the
presumption of bail; the principle of the rule of law in bail.

Based on these six principles, Paragraph 80 in the Judgement of the Court of Final Appeal states
that judges of the High Court misconstrued Article 42(2) of the HKNSL and misapprehended
the nature and effect of the threshold requirement created. “Although he purported to apply the
correct legal test, his Lordship in fact adopted an erroneous approach by eliding the NSL 42(2)
question with the discretionary considerations set out in CPO 9G and never made a proper
assessment under NSL 42(2). The appellant’s appeal must accordingly be allowed, and the
Judge’s decision to grant the respondent bail must be set aside.

Thus, the decision of the Court of Final Appeal not only established the latest legal principles
for handling bail requests under the National Security Law, but also unified the courts’
interpretation of the bail issues relating to HKNSL.

In the end, according to the court's interpretation of relevant laws and regulations, Lai Chee
Ying was not released on bail. It should be noted that this decision of the court does not preclude
all persons suspected of violating national security laws from applying for bail. According to
the report by the Secretary for Security, by the end of March 2022, “78 and 59 persons were
remanded in custody and released on bail, respectively”. This shows that the criminal suspect’s
right to bail has received sufficient attention and protection in national security cases.

5.3 Comment

Now, let’s make some comments on the meaning of the ruling by Hong Kong Court of Final
Appeal.

All in all, the judgement on Lai Chee Ying’s bail case shows the Hong Kong courts’ judicial
activism based on judicial deference when it comes to the application of the National Security
Law. Judicial deference is manifested in the court's respect for the national legal authority that
is applicable to the HKSAR. Judicial activism is manifested in the active exercise of the power
of judicial interpretation by the courts in order to actively resolve legal tensions and possible
conflicts arising from the application of new national laws to the Hong Kong SAR. Therefore,
the interpretation of the Court of Final Appeal is of very timely and crucial significance. In the
judicialization of the National Security Law in Hong Kong, the principles established by the
Court of Final Appeal will lead the designated judges not to damage the authority of the HKNSL
when they follow the tradition of the common law (presumption of innocence and presumption
of bail) in dealing with the right to bail. At the very least, the interaction between Hong Kong’s
common law tradition and the HKNSL is sufficient to prove that the correct exercise of the
power of interpretation by the Court of Final Appeal will not cause inevitable tensions or
negative relationships, as some suggested. Please pay attention to this.
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6. Framework Case Law: Formation of Hong Kong’s National Security Case Law

Let’s now discuss framework case law: development of Hong Kong’s national security case
law.

In December 2023, the Department of Justice of the HKSAR publicly released online the
Annotations of the Hong Kong National Security Law and Sedition Offences in the Crimes
Ordinance. This document compiles various judgments made by Hong Kong courts from the
enactment of the National Security Law in 2020 to August 2023 through their observance and
application of the National Security Law (including the Implementation Rules for Article 43 of
HKNSL) and Sections 9 and 10 of the Crimes Ordinance. This publication signifies the
preliminary formation of a body of Hong Kong case law specifically concerning the
safeguarding of national security in the region.

Hong Kong national security case law can be understood as being primarily composed of
framework precedents established by Hong Kong courts. These precedents address the general
legal principles underpinning Hong Kong’s legal framework for safeguarding national security,
namely sovereignty, unity and territorial integrity, balanced institutional participation, and the
judicial application of human rights and the rule of law principles. Moreover, these precedents
collectively establish long-term binding legal norms for the prevention, suppression, and
punishment of offenses listed under the National Security Law.

According to the foreword written by the Secretary for Justice of Hong Kong, Mr. Lam Ting-
kwok, for the Annotations of the Hong Kong National Security Law and Sedition Offences in
the Crimes Ordinance, with the exception of cases stipulated under Article 55 of HKNSL, which
are subject to the jurisdiction of courts designated by the Supreme People’s Court, “the HKSAR
courts have assumed and exercised jurisdiction over cases concerning offences under the Law,
and have accumulated useful jurisprudence to assist us in the understanding and application of
various provisions in the Law.”

The Chief Justice of the Court of Final Appeal of the HKSAR, at the Ceremonial Opening of
the Legal Year 2024, reiterated the constitutional responsibility of upholding the national
security of China through Hong Kong common law (i.e., case law). Therefore, it is imperative,
at least academically, to seriously study and consider national security case law in the HKSAR.

We will now briefly explain how Hong Kong courts have developed various legal principles
for safeguarding national security through their adjudication of specific cases based on the cases
included in the Annotations of the Hong Kong National Security Law and Sedition Offences in
the Crimes Ordinance.

6.1 Framework cases

Secession (Articles 20, 21)

On secession, that court found:

a. Regardless of whether it was the offence of secession or incitement to secession, both
provisions were of utmost importance in upholding national unity and territorial integrity,
as well as the foundation of the constitutional system and the legal status of the HKSAR as
an inalienable part of the PRC under the “One Country, Two Systems” policy. (HKSAR
v. Ma Chun Man. [2022] HKCA 1151. Paragraph 71)

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UGCP1002 Hong Kong in the Wider Constitutional Order

b. The actus reus of the offence of secession under NSL 20 was simply the organisation,
planning, commission or participation in any of the acts specified in NSL 20(1)(1) to (3).
Whether an act
allegedly done by a defendant amounted to an act so specified was a matter of fact based
on the evidence and the specific circumstances surrounding a particular case. (HKSAR v.
Tong Ying-kit. [2022] HKCA 1151. [2021] HKCFI 2200. Paragraph 12)

c. The use of force or a threat to use force was not a necessary element of the offence.
(HKSAR v. Tong Ying-kit. [2022] HKCA 1151. [2021] HKCFI 2200. Paragraph 12;
HKSAR v. Chung Hon Lam. [2021] HKDC 1484. Paragraph 18)

d. The offence under NSL 20(1) was committed by persons who organised, planned,
committed or participated in secessionist acts. (HKSAR v. Lui Sai Yu. [2023] HKCFA 26
Paragraph 49. Defendant did not need to have any concrete and specific plan. HKSAR v.
Chung Hon Lam. [2021] HKDC 1484. Paragraph 18)

e. As to the mens rea of the offence of secession, the culpable mind was one which did the
prohibited act(s) with a view to committing secession or undermining national unification.
(HKSAR v. Tong Ying-kit. [2022] HKCA 1151. Paragraph 13)

f. Citing Basic Law 1 and 12 as well as NSL 2, and given the background leading to the
enactment of the NSL, the Court held that NSL 20 was, at the very least, not indefensible
notwithstanding the freedom of speech and freedom of expression as provided in Basic
Law 27 and Bill of Rights Ordinance 16 which were not absolute and could be subject to
restrictions. Bill of Rights Ordinance 16 also provided that the exercise of the right to
freedom of expression carried with it special duties and responsibilities. (HKSAR v. Ma
Chun Man. [2020] HKCFI 3132. Paragraph 25)

g. The offence of incitement to secession under NSL 21 was a pre-emptive offence.

“Incitement” (煽動) literally meant instigation and prompt with encouragement… the
gravamen of the offence of incitement to secession under NSL 21 might be expressed as
follows: (a) stop people from inciting (including by way of persuading or encouraging)
others to commit the offence of secession, even if no one so incited carried out the crime;
and (b) allow intervention of the law at the earliest possible stage to stop a person who had
been incited from carrying out the offence of secession. Its purpose was to sufficiently
protect important public interests such as national security and territorial integrity, as well
as the foundation of the constitutional system and legal status of the HKSAR, to ensure
that the offence of secession could be nipped in the bud by timely and effective suppression
and punishment. (HKSAR v. Ma Chun Man. [2022] HKCA 1151. Paragraphs 72-73)

h. As of August 2023, there were four cases in which defendants were convicted of inciting
subversion of under Article 23 of the Hong Kong National Security Law.

The court has identified the following elements of the offence of inciting secession:
(a) An incitement could be addressed to the public at large, whether in the form of a
published article, an advertisement, or a speech. (HKSAR v. Tong Tong Ying-kit.
[2022] HKCFI 2200. Paragraph 33)
(b) The offence of incitement did not require that someone was actually incited to
commit the relevant offence. (HKSAR v. Tong Tong Ying-kit. [2022] HKCFI 2200.
Paragraph 143; HKSAR v. Ma Chun Man [2021] HKDC 1325. Paragraphs 50 and
81.

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UGCP1002 Hong Kong in the Wider Constitutional Order

(c) It was immaterial whether the defendant took any actual action to commit secession,
nor was this an element of the offence. (HKSAR v. Ma Chun Man [2021] HKDC
1325. Paragraphs 50,66 and 81)
(d) There was no requirement that the incitor must specify the means by which the
offence was to be carried out. (HKSAR v. Tong Ying-kit. [2022] HKCFI 2200.
Paragraph 143)
(e) The criminality of the offence of incitement did not depend on the incitee actually
acting upon the incitement to commit the offence but on the incitor who sought to
influence another to commit an offence. (HKSAR v. Tong Ying-kit [2021] HKCFI
2239. Paragraphs 20 and 21)
(f) The Court held that there was no direct connection between incitement and the
number of inciters. The Court considered that no response from anyone did not mean
absence of inciting acts. (HKSAR v. Ma Chun Man [2021] HKDC 1325. Paragraphs
57-58)
(g) One had to assess incitement by looking at the overall environment, the social context
at the time, and individual behaviour, but not solely based on the reaction at the scene.
Incitement could take place by osmosis. (HKSAR v. Ma Chun Man [2021] HKDC
1325. Paragraph 77)

Subversion (Article 22, 23)

Let’s now look at subversion. (Article 22, 23)

As of August 2023, there were a total of 5 cases in which the defendant was convicted of inciting
subversion under Article 23 of the Hong Kong National Security Law. Regarding the offence
of subversion, the court found that inciting the commission by other persons of the offence of
subversion was a pre-emptive offence, the gravamen of which was to: (a) stop people from
inciting (including by way of persuading or encouraging) others to commit the offence of
subversion, even if no one so incited carried out the crime; and (b) allow the intervention of the
law at the earliest possible stage to stop a person who had been incited from carrying out the
offence of subversion. Its purpose was to sufficiently protect important public interests such as
national security and territorial integrity, as well as the foundation of the constitutional system
and legal status of the HKSAR, to ensure that the offence of subversion could be nipped in the
bud by timely and effective suppression and punishment. (HKSAR v. Wong Yat Chin and
Others. [2022] HKDC 1210. Paragraph 75)

Terrorist Activities (Articles 24-28)

As of August 2023, there has been only one case where a defendant was convicted of terrorist
activities under Article 24 of the Hong Kong National Security Law: HKSAR v. Tong Ying-
kit. Regarding the offence of terrorism, the court found:

a. The mens rea for the offence under NSL 24 was doing the prohibited act(s) with a view to
coercing the Central People’s Government, the HKSAR Government or an international
organisation or intimidating the public in order to pursue a political agenda. (HKSAR v.
Tong Ying Kit, [2021] HKCFI 2200. Paragraph 39)

b. As could be seen from NSL 24, the Prosecution had to prove grave harm being caused or
intended to be caused to the society when the Defendant committed the prohibited acts.
The ordinary meaning of the word “harm” was wide. The acts itemised in NSL 24(1)(1) to
(5) were of such a broad range that it could not be suggested that “grave harm” meant only

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physical harm. Harm, therefore, was not restricted to physical harm. (HKSAR v. Tong
Ying Kit, [2021] HKCFI 2200. Paragraph161).

c. The Defendant’s intention was to arouse public attention on the agenda of separating the
HKSAR from the PRC, which clearly was a political agenda. Such intimidation was for
the purpose of pursuing his political agenda, in that the intimidation was targeted against
those in the community who did not support the political agenda, thereby seeking to contain
or suppress counter-voices. An intimidation to a section of the public was intimidation to
the public all the same for a society was made up of individuals and different groups of
such individuals. (HKSAR v. Tong Ying Kit, [2021] HKCFI 2200. Paragraphs 164-165,
167-168)

d. Serious violence against persons did not mean serious injuries caused to the persons. It was
the nature of the act embarked upon which was required to be proved. Whether such an act
resulted in or caused serious bodily injury was a matter relevant to the sentence, not an
element of the offence of terrorist activities. (HKSAR v. Tong Ying Kit, [2021] HKCFI
2200. Paragraph 159)

e. The political agenda in Count 2 was of a secessionist nature, which involved a

contravention of Basic Law 1 and 12, which were the fundamental provisions in the Basic
Law under National Security Law 2. There was an added criminality in that such an agenda
was seeking to undermine national unification. (HKSAR v. Tong Ying Kit. [2021] HKCFI
2239. Paragraphs 36-37)

Collusion with a Foreign Country or With External Elements to Endanger National Security

According to the 5.28 Decision by the National People’s Congress, the country resolutely
opposes interference in the HKSAR's affairs by any foreign or external forces in any form, and
will take necessary countermeasures to prevent, stop and punish in accordance with the law
activities of secession, subversion, infiltration and sabotage carried out by foreign or external
forces in Hong Kong.

On December 18, 2023, the West Kowloon Magistrates’ Court in Hong Kong began hearing
the case against Jimmy Lai for conspiracy to collude with foreign forces. This marks the first
case accepted by Hong Kong courts involving charges of colluding with foreign forces to
endanger national security. As of July 25, 2024, the court ruled that there was a prima facie
case to answer, and the case was adjourned until November 20, 2024, for further proceedings.
"Prima facie case to answer" is a legal procedural term signifying that, after assessing the
evidence presented by the prosecution, the court has determined that the defense must respond
to prove their innocence. If the court finds that there is no prima facie case, the defendant is not
required to present a defense, and the court can declare them not guilty and release them
immediately.

6.2 Significance of the HKNSL Framework Cases

Generally speaking, the significance of the creation of national security framework cases is
about resolving the possible conflicts between the National Security Law and the rule of law in
Hong Kong to a large extent. Since the National Security Law was enacted and implemented
in Hong Kong, the question, which is often mentioned in the English-speaking context, is
answered and solved. The question had been whether China's national security legislation
would 'endanger' Hong Kong's rule of law. Therefore, what should be paid attention to in the
future is how to best establish the principle of the rule of law for Hong Kong's national security,
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instead of getting involved in other possible legal issues that may arise. In a word, the national
security case law of the Hong Kong SAR has at least embodied the spirit of judicial nationalism.
This is very helpful for our understanding of the long-term significance of the framework cases
in Hong Kong’s national security, and can shed light on academic and ideological controversies
bearing on these issues.

7. Conclusion

Now, let me make a simple conclusion.

Before ending this lecture, let me make reference to the comment made by Tom Ginsburg,
Professor in Comparative Constitutional Law, on the HKNSL: “there was little scope to
challenge the new law in terms of its constitutionality.” The new law refers to the HKNSL. His
basic view is that both China and the United States are willing to commit to a "return of
sovereignty" in the current new international legal system. Therefore, the rise of China will
push China back to the values of sovereignty. The National Security Law for Hong Kong can
be seen as an example of this new trend.

According to Bruce Ackerman, Professor of Constitutional Law at Yale University, there have
been three great constitutional revolutions in the United States. The first was led by the
Federalists in the eighteenth century (the Era of the founding of the Republic); the second was
led by Radical Republicans in the nineteenth century (the Civil War Era); the third was led by
New Deal Democrats in the twentieth century (1930-1940s). “All three shared a common aim—
a radical transfer of power from the states to the central government.” This statement vividly
reflects the spirit of constitutional nationalism in the United States. And the court plays the role
of a constitutional nationalist. Let’s look at the example of John Marshall, a pioneer in
advocating judicial review in the United States. As the leader of constitutional nationalism, he
incorporated the spirit of nationalism into the federal common law of the United States during
his 35 years in the Supreme Court.

Within the framework of the “One Country, Two Systems” policy, constitutional nationalism
can be seen as a constitutional movement to safeguard national security in Hong Kong. In this
movement, Hong Kong’s high degree of autonomy remains unchanged, but this cannot
constitute a fundamental restriction to the central government's power to pursue national
security, social justice or economic welfare in China as a whole. Courts and judges should play
the role of the guardian in national security. In this sense, framework cases (national security
case law) by courts in Hong Kong are a major part of China’s national security legal system.
Therefore, in the long run, the court's constitutional nationalism is both necessary and inevitable
for the protection of Hong Kong's national security and “One Country, Two Systems.”

Obviously, in the past four years, the previous judgments of Hong Kong courts have initially
formed the national security case law. Moreover, on a more profound constitutional level, Hong
Kong courts have gradually embedded the spirit of constitutional nationalism through the
exercise of jurisdiction and interpretation powers in cases involving the National Security Law.
Simply put, this spirit of constitutional nationalism can be manifested in the five basic principles
stated by the Standing Committee of the National People’s Congress when it enacted the
HKNSL on May 28, 2020. The first is to resolutely safeguard national security; the second is
to insist on and to refine the “One Country, Two Systems”; the third is to insist on the rule of
law in Hong Kong and to safeguard the Constitution and the Constitutional order created by the
Basic Law; the fourth is to oppose external interference; the fifth is to protect the legal rights
and interests of Hong Kong residents.

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UGCP1002 Hong Kong in the Wider Constitutional Order

In short, we need to expand our understanding of the legal system for safeguarding national
security. At present, there are many understandings of the national security law in academia
and in society, such as how to achieve a balance between national security and freedom,
between security and the rule of law, and between the central government and the local
government. It is not enough to stay at the level of theoretical assumption or ideological
consolidation. We need serious comparative studies of national security law. From there, we
will broaden our vision of norms, institutions, and practices. Then, we can know and promote
the general development of the Hong Kong Basic Law, HKNSL, Hong Kong National Security
Ordinance, and the “One Country, Two Systems” policy.

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