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Hong Kong national security law (NSL)
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The new national security law was adopted in Hong Kong on Tuesday night. Photo: Dickson Lee

National security law: Hong Kong legal experts worry authorities, police can bypass courts in carrying out probes, tapping phones

  • Sweeping powers of mainland Chinese law enforcers puts them ‘beyond the reach of Hong Kong law’
  • Doing away with jury trials and open hearings for some cases a major break from legal tradition
Hong Kong legal experts have expressed concern that the new national security law has introduced significant changes to a legal system long considered a cornerstone of the city’s global success.

For the first time, they noted on Wednesday, some decisions of the authorities would bypass the courts, and the new dedicated police unit investigating national security cases would have evidence-gathering powers that did not need prior court approval.

And while most people who ran afoul of the law would be covered by existing legal protections, such as being presumed innocent until proven guilty, those accused of grave offences would be handled by mainland Chinese officers implementing mainland laws in Hong Kong.

01:35

‘Protection of national security is everyone’s responsibility’, says John Lee

‘Protection of national security is everyone’s responsibility’, says John Lee

Lawyers said they appreciated the safeguards included in the new law that took effect late on Tuesday, but pointed out inconsistencies with the city’s common law system.

Arguing that the new law did not sit well with the Basic Law, the city’s mini-constitution, the Bar Association said: “The law contains numerous provisions that appear to be inconsistent with the provisions of the Basic Law.”

No need for judicial review

One aspect of the law that has caused concern is that the newly established Committee for Safeguarding National Security, to be chaired by the city’s chief executive, has powers to formulate relevant policies and coordinate major operations, with its decisions exempted from judicial review.

Simon Young says he is most concerned about the new powers granted to police investigating national security offences. Photo: SCMP

Simon Young Ngai-man, associate law dean of the University of Hong Kong (HKU), said removing that final legal recourse would not be too much of a concern if the committee only made policy decisions.

However, he pointed out, it also had oversight of the new team of mainland Chinese national security officers empowered to enforce the law in cases considered too serious or complex for Hong Kong to handle.

Courts have fine line to walk adjudicating national security law cases: experts

These mainland China officers would be part of Beijing’s new agency in the city, the Office for Safeguarding National Security, whose staff would have to observe local laws but would not be under Hong Kong jurisdiction while carrying out their duties.

Hong Kong national security law full text:

The Bar Association, representing the city’s barristers, said in a statement on Wednesday: “Some people are held out to be above the reach of local law.”

Icarus Wong Ho-yin, founder of the Civil Rights Observer group, was concerned that suspects handled by mainland Chinese authorities would be deprived of rights guaranteed by the Basic Law, including the right to silence.

He cited Article 59 of the new law, which states that anyone who has information about a case “is obliged to testify truthfully”.

Harder to get bail

HKU law scholar Eric Cheung Tat-ming said that suspects charged under the new law were likely to face challenges over applications for bail.

Under Hong Kong law, all defendants except those facing murder charges may apply for bail, and prosecutors who object must prove that a defendant might abscond, reoffend while out on bail or interfere with witnesses.

Eric Cheung says suspects may have difficulty with bail applications. Photo: K.Y. Cheng

But under the new law, Cheung noted, a judge could base his decision solely on whether there were reasonable grounds to believe the defendant would not commit another offence during the bail period.

Barrister Ronny Tong Ka-wah, a member of the city’s top advisory body, the Executive Council, agreed that the burden now lay with the defendant, but said that was because endangering national security was a serious offence.

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Hong Kong police arrest 10 under new national security law

Hong Kong police arrest 10 under new national security law

Trials behind closed doors

Hong Kong has a long legal tradition of jury trials for more serious crimes, with court hearings open to the public.

This will change for some cases prosecuted under the new law. The secretary for justice now has the power to decide if a case is too sensitive for jurors to decide and for spectators to witness.

In a first for Hong Kong, a three-judge panel will replace jurors, and the city’s chief executive has the power to establish a pool of judges to hear national security cases.

Although the law states the city leader may consult the chief justice in making that decision, a senior legal source said: “It means the chief executive may choose to consult, or not consult, the chief justice.”

Tong brushed aside that concern, saying judges would still be free from interference when handling these cases.

New police powers

HKU’s Young said he was most concerned about the new powers granted to police investigating national security offences.

Under the new law, officers can confiscate suspects’ travel documents without first obtaining the court’s permission, and search premises without a judge’s warrant.

They will only need the chief executive’s nod to start tapping phones, instead of having to seek a judge’s approval, as for non-national security cases.
The Bar Association says some people are held out to be above the reach of local law. Photo: Fung Chang

Young said: “People acting rationally will be able, for the most part, to avoid most of the new criminal offences. But avoiding the effects of [these new powers] will be more difficult because it won’t be known when one might be the victim of surveillance or have information which the authorities consider useful.”

The new arrangements had the effect of reversing years of hard-fought efforts to establish essential constitutional rights protections in the criminal process, he added.

Icarus Wong is concerned that suspects could be deprived of their rights. Photo: SCMP

Minimum sentences

Another variation from Hong Kong legal tradition is that while the courts operate on the basis of maximum sentences for various crimes, the new law sets minimum sentences, including life imprisonment for the most severe cases.

Tong, however, pointed out that those guilty of milder offences under the new law would be sentenced to community service. He expected that those convicted of more serious offences would face no less than 10 years’ jail, which he considered harsh.

HKU’s Young had a related concern. If the required minimum sentence was disproportionate, he said, it could be risky to file a legal challenge as Beijing could step in and issue its interpretation of the Basic Law, and that would put an end to any appeal.

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