Theme 1 Topic 1 Part D: Law of the People's Republic of China on Safeguarding National Security in the HKSAR

Question 1

What are the three main parts that make up the Central Authorities of the PRC responsible for the national security of the PRC and HKSAR?

Answer 1

• National People’s Congress
• State Council
• Central National Security Commission

Question 2

According to China’s Constitution, Central Authorities of the PRC have the ________________________________________ to safeguard national security in the whole of China.

Answer 2

constitutional responsibilities

Question 3

What constitutional responsibility does the National People’s Congress have for national security of PRC and HKSAR?

Answer 3

Make laws / statutes / decisions to promote national security
e.g.
National Security Law (1993)
National Security Law of the PRC (2015) (based on the holistic concept of national security)

Question 4

What constitutional responsibility does the State Council have towards national security of PRC and HKSAR?

Answer 4

Policy making with national security in mind.

Question 5

What are the functions of Central National Security Commission?

Answer 5

• Formulate and implement national security strategies
• Promote development of national security laws
• Formulate policy directions for work about national security
• Research solutions to important national security problems

Question 6

Why does Hong Kong have the constitutional responsibility to maintain national security?

Answer 6

(1) Hong Kong is an inalienable part of China (One Country, Two systems)
(2) HKSAR comes directly under the Central People’s Gov
(3) Article 23 of Basic Law

Question 7

Why do we need a national security law specific for Hong Kong when there is already a law in effect in mainland China Security Law of PRC 2015)?

Answer 7

1. National security risks in Hong Kong pose threat to national security of China + constitutional responsibility => Hong Kong needs to take actions to promote national security
2. Incomplete local legislation to safeguard national security
   - Narrow definition of national security under the Public Order Ordinance, which regulates public gatherings, meetings, assemblies processions etc. National security was defined as territorial integrity and the independence of the PRC only
   - Deadlock in local legislation based on Article 23, which has a wider coverage of acts threatening national security
3. Under the principle of “One Country, Two systems” the National Security Law of China (2015) is not directly applied to Hong Kong
4. Feasibility and practicality concerns of implementing non-adapted National Security Law of the PRC (2015) in Hong Kong e.g. differences in legal systems and contexts between mainland China and Hong Kong

Question 8

What are the key points of Article 18 of the Basic Law that reasons why the National Security Law of China is not directly applied to Hong Kong?

Answer 8

• The laws in force in the HKSAR shall be
  1. Basic Law
  2. The laws previously in force in Hong Kong
  3. The laws enacted by the Legislative Council
• National laws shall not be applied in the HKSAR except for those listed in Annex III to this Law. The laws listed in Annex III shall be applied locally by way of promulgation or legislation by the region.
• The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the HKSAR and the government of the region. Laws listed in Annex III to this law shall be confined to those relating to
  1. defence
  2. foreign affairs
  3. other matters outside the limits of the autonomy (e.g. national security)
  of the region

Question 9

How is the enactment process of the “Law of the PRC on Safeguarding National Security in the HKSAR” (i.e. Hong Kong National Security Law):

Answer 9

2015: National Security Law of the PRC was passed based on the holistic concept of national security

28 May 2020: National People’s Congress decided to establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security. The Standing Committee of the National People’s Congress collected views from various representatives of HK and mainland officials.

30 June 2020: The Standing Committee of the National People’s Congress passed the Law of the People’s Republic of China on Safeguarding National Security in the HKSAR and listed it in Annex III of the Basic Law.

The Law is applied in the HKSAR by promulgation.

Question 10

What are the four categories of offences listed in the HKNSL?

Answer 10

Offences: Organization, planning, commitment to or participating in acts by force, threat of force or other unlawful means
e.g.
Acts of collusion
Acts of secession
Acts of subversion
Terrorist activities

Question 11

What do acts of collusion include?

Answer 11

Acts of collusion with a foreign country or with external elements (body or individual) to endanger national security:
1. Stealing, spying, obtaining with payment or unlawfully providing state secrets or intelligence concerning national security
2. Requestin or conspiring with or receiving instructions, control or support from external elements to
(a) wage a war against PRC or threating to use force to undermine its sovereignty, unification and territorial integrity
(b) seriously disrupt the formulation and implementation of laws or policies by the HKSAR Government or by the Central People’s Government
(c) rig or undermine an election in HKSAR
(d) impose sanctions or blockage or engaging in other hostile activities against HKSAR or PRC
(e) provoke by unlawful means hatred among HK residents towards the Central People’s Government or the HKSAR Government

Question 12

What is the penalty to acts of collusion?

Answer 12

Penalty: Serious offenders: 10 years - life imprisonment
Offenders: 3-10 years
External elements shall be convicted and punished for the same offence

Question 13

What do acts of secession include?

Answer 13

Acts of secession (undermining national unification)
1. separating HKSAR or any other part of PRC from PRC
2. altering the legal status by unlawful means
3. surrendering HKSAR or any other part of PRC to a foreign country

Question 14

What do acts of subversion include?

Answer 14

Acts of subversion subverting state power):
1&2: overthrowing or undermining the basic system of PRC established by the Constitution of PRC, the body of central power of PRC or the body of power of the HKSAR.
3. seriously interfering in, disrupting or undermining the performance of duties and functions of the body of central power of PRC or the HKSAR.
4. attacking or damaging the premises and facilities used by the body of power of HKSAR

Question 15

What is the penalty to acts of secession or acts of subversion?

Answer 15

• Principal/Serious offenders 10 years => life
• Active participants 3-10 years
• Other participants: max 3 years
• Inciters, assistants, funders (serious) 5-10 years
• Inciters, assistance, funders (minor): max 5 years

Question 16

What do terrorist activities include?

Answer 16

1. Organize, plans, commits, participates in or threaten to commit activities to cause or intend to cause harm to the society or to intimidate the public to coerce the Central People’s Gov or HKSAR Gov to pursue political agenda
2. Providing support (e.g. training, weapons, labour, technologies, funds etc.) for the commission of a terrorist activity
3. Illegally possesses or manufactures substances to prepare for the commission of a terrorist activity (e.g. explosives or pathogens)
4. advocates terrorism or incites the commission of a terrorist activity

Question 17

What is the penalty to terrorist activities?

Answer 17

Causing seriously injury or significant loss of public or private property: 10 years - life
others 3-10 years
Organizers : more than 10 years - life + confiscation of property
Active participants: max 10 years + fine
others: 3 years + fine
Serious offenders: 5-10 years
minor offenders <5years + fine

Question 18

What are others provision on penalty to offences listed in the Hong Kong National Security Law?

Answer 18

1. Operation of companies or organizations will be suspended + license / business permit revoked + criminal fine
2. national security law offenders will be disqualified from standing as a candidate in elections / holding public office / removed from public office.

Question 19

What does office for safeguarding National Security of the Central People’s Government in HKSAR do?

Answer 19

1. analysing and assessing developments in safeguard national security and making proposals on major strategies
2. overseeing, guiding and providing support the Region to perform its national security duties
3. Strengthen work and cooperation with the CPG’s other institutions in Hong Kong (e.g. the Hong Kong Garrison of the Chinese People’s Liberation Army)
4. collection and analyzing intelligence and information concerning national security
5. Handling cases concerning offence endangering national security in accordance with the law
   a. information sharing, operation coordination
   b. exercise jurisdiction over a case which is complex, serious and impose a major and imminent threat (request made by HKSAR or the Officee, approval of CPG)

Question 20

How does the Office for Safeguarding National Security of the Central People’s Government in HKSAR functions with cases?

Answer 20

1, The office to initiate investigation of these cases
2. prosecution and adjudication done according to the national laws of the People’s Republic of China by state organs (e.g. Supreme People’s Court of PRC.)

Question 21

What are the general responsibilities of HKSAR on National Security?

Answer 21

1. complete legislation for safeguarding national security (article 23 of the Basic Law)
2. fully enforce the National Security Law of HKSAR
3. take necessary measures to strengthen public communication, guidance, supervision and regulation over matters concerning national security
4. promote national security education (e.g. in schools and through media)

Question 22

What are the responsibilities of the chief executive on national security?

Answer 22

1. submit reports to CPG regarding national security
2. nominate / appoint / designate relevant individuals to key positions
3. give approval to Financial Secretary who would appropriate funds for safeguarding national security
4. give approval to law enforcement when required (eg. authorize interception of communication and covert surveillance)
5. issues certificate on whether an act involves national security or state secrets when such question arises in the court when trialing cases

Question 23

What is the relationship between the chief executive and the judiciary?

Answer 23

The chief executive designate a number of judges within the Judiciary to handle national security cases (after consulting the HKSAR Committee for safeguarding National Security + Chief Justice of the Court of Final Appeal)

Question 24

What does the HKSAR Committee for Safeguarding National Security do?

Answer 24

(mainly consists of some principal officials like Chief Secretary for Administration, Financial Secretary, Secretary for Justice, Secretary for Security, the Commissioner of Police etc. + Head of the National Security Department of the Hong Kong Police force)

formulate policies + advance legal systems and enforcement mechanisms + coordinate significant operations
*Decisions of the Committee are not subject to judicial review

Question 25

What are the commissioner of police + head of National Security Department of the HK police force responsible for?

Answer 25

carry out duties related to investigating national security crimes (of cases which HKSAR has jurisdiction over) + law enforcement

Question 26

What are the responsibilities of the secretary for justice in national security matters?

Answer 26

1. appoint prosecutors to the National Security Prosecutions Division of the Department of Justice, which is responsible for deciding whether or not to prosecute the suspect (i.e. bring the suspect to court for trial)
2. decided whether the trial would involve a jury

Question 27

What are the responsibilities of the judiciary in national security matters?

Answer 27

1. trail cases independently in accordance to laws
2. trail by 1 designated judge _ jury or 3 designated judges without jury
3. open court unless the trail involves State secrets
4. ensure that cases concerning offence endangering national security are handled in a fair and timely manner
5. bail may be offered only if there is sufficient evidence that the arrested will not engage in activities endangering national security

Question 28

How does it balance between safeguarding national security and protection of human right by upholding the rule of law?

Answer 28

upholding the principle of the rule of law by protecting the legal rights of arrestees (Article 5 of HKNSL)
- conviction and sentencing of crimes should be well-defined in the law. The public will not be prosecuted arbitrarily by the authorities
- presumption of innocence: A person is presumed innocent until convicted by a judicial body. The prosecution must prove guilty beyond reasonable doubt.
- protecting the rights in judicial proceedings: right to defend, right to seek professional legal advice and employ a defence lawyer
- Non bis in idem: No one shall be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings.
- Non-retroactivity of law: offences before the enactment of the law will not be prosecuted

Respecting and protecting human rights (Article 4 of HKNSL)
- The HKSAR Government shall protect nad respect human rights, including: The freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the HKSAR enjoy under the Basic Law and the provisions of the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural rights.

Question 29

What are the functions of the National security Law for the HKSAR?

Answer 29

1. safeguarding the security of the country and Hong Kong
   - the enactment of the National Security Law has established a mechanism for safeguarding national security in the HKSAR. It affirms the leading, guiding and dominant role of the Central Authorities in national security affairs, and also clarifies the duties of the HKSAR
2. ensuring the implementation of one country, two systems.
   - safeguarding the security of state sovereignty and territorial integrity is a prerequisite for implementing “one country, two systems”. The Central Authorities has enacted the National Security Law for the HKSAR according to actual circumstances rather than directly enforcing the national security law of the Mainland in the HKSAR.
3. maintaining social stability by preventing, suppressing and punishing four categories of offences