Introduction
The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) was passed on June 30, 2020 by the Standing Committee of the National People's Congress (NPCSC).Footnote 1 It did not have immediate direct effect in the Hong Kong Special Administrative Region (HKSAR). After consulting the Committee for the Basic Law of the HKSAR (BLC) and the Government of the HKSAR (HKSARG), the NPCSC added the NSL to Annex III of The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law) before the Chief Executive of the HKSAR (Chief Executive) promulgated the NSL for local application.Footnote 2 All this happened on June 30, enabling the NSL to enter into force at 11 p.m., just ahead of the twenty-third anniversary of the establishment of the HKSAR on July 1, 2020.Footnote 3
Background
When the People's Republic of China (PRC) resumed the exercise of sovereignty over Hong Kong on July 1, 1997, it was contemplated that Hong Kong would enact its own laws to protect national security, and the PRC's national security laws would not apply in Hong Kong. While pre-existing English offences of treason, sedition, and official secrets were adapted for continued application after July 1997, the Central People's Government (CPG) and HKSARG considered these laws as insufficient to meet the requirements of Article 23 of the Basic Law, which required the enactment of laws to prohibit treason, secession, sedition, subversion, theft of state secrets, and certain activities of foreign and local political organizations or bodies. An attempt to have the Hong Kong legislature pass a Bill to implement Article 23 was aborted in 2003 when the HKSARG withdrew the Bill after mass protests and a shift in political support of some pro-government legislators.Footnote 4 As for anti-terrorism laws, Hong Kong enacted mainly terrorist financing laws after September 11, 2001, to adhere to the requirements of United Nations Security Council resolutions and recommendations of the Financial Action Task Force.Footnote 5 Hong Kong did not have a general offence of terrorism before the passage of the NSL.
Subsequent Hong Kong administrations avoided the Article 23 issue due to a highly polarized Legislative Council. A civil disobedience movement, mainly involving young people, emerged in 2014 in protest against nomination restrictions imposed by the NPCSC on an official proposal to elect the Chief Executive by universal suffrage. In June 2019, widespread protests erupted resulting in violent clashes with the police over an extradition reform bill that would have enabled ad hoc extradition arrangements to be concluded with the Mainland, Macau, Taiwan, and other jurisdictions.Footnote 6 Even after the bill was withdrawn, protests and violence continued resulting in considerable damage to public and private property, including the Legislative Council building, and conflicts not only between protesters and police but also amongst members of the public. As a result of concerns with the ongoing protests and violence and given the inability of the Hong Kong government to pass Article 23 legislation since 1997, the CPG decided to draft a national security law for Hong Kong and apply it locally pursuant to Article 18 of the Basic Law.
On May 28, 2020, the National People's Congress adopted a decision to improve the systems and mechanisms for Hong Kong to safeguard national security.Footnote 7 The preamble to the decision noted recent activities giving rise to risks to national security including “advocacy for ‘Hong Kong independence’” and foreign or external forces “flagrantly” interfering in Hong Kong's affairs and using Hong Kong to “carry out activities endangering national security.” The National People's Congress empowered the NPCSC to
formulate relevant laws on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security, in order to effectively prevent, stop and punish acts and activities to split the country, subvert state power, organise and carry out terrorist activities and other behaviors that seriously endanger national security, as well as activities of foreign or external forces interfering in the affairs of the HKSAR.Footnote 8
The Chief Executive was required to “regularly report to the CPG on the HKSAR's performance of the duty to safeguard national security, carry out national security education, forbid acts and activities of endangering national security in accordance with the law.”Footnote 9 The HKSARG still had to complete its task of implementing Article 23, the NSL being only a partial implementation.Footnote 10
The NSL was not the first time Article 18 was used to promulgate a national law added to Annex III for direct application in Hong Kong. Laws listed in Annex III are “confined to those relating to defense and foreign affairs as well as other matters outside the limits” of the HKSAR's autonomy.Footnote 11 Other examples of national law applied locally by promulgation include those concerning Chinese nationality, the military forces stationed by the CPG in Hong Kong, and the international law of the sea as implemented by the PRC. The NSL, however, is the first promulgated national law providing for criminal offences, punishment, and police powers; it is also the first to be promulgated without any public disclosure of its draft terms, even to members of the BLC.
Contents of the Law
As a national law, the NSL prevails over local Hong Kong laws.Footnote 12 The NPCSC has the power of interpretation of the NSL,Footnote 13 though in practice it is unlikely to override a judicial interpretation unless exceptionally necessary (see its practice in interpreting the Basic Law). It is noteworthy that Articles 4 and 5 provide, respectively, that, “Human rights shall be respected and protected in safeguarding national security” and the “principle of the rule of law shall be adhered to”.
The NSL's 66 articles create new criminal offences, establish institutions to oversee national security policy and administer the new law, and provide for new procedures and police powers for the effective enforcement of the law. The four categories of new offences relate to secession, subversion, terrorist activities, and collusion with a foreign country or with external elements to endanger national security.Footnote 14 Although drafted in the form of Chinese legislation, the NSL shows sensitivity to the common law traditions and principles of drafting criminal laws. However, punishment levels are severe, providing, distinctly from the perspective of Hong Kong criminal law, minimum terms of imprisonment of between ten years and life for principal offenders. Prescriptive extra-territorial jurisdiction is also conferred extensively.Footnote 15
A new high-level national security committee is established, chaired by the Chief Executive, but with CPG oversight in the role of the National Security Adviser.Footnote 16 Decisions of the committee are not amendable to judicial review.Footnote 17 Both the Department of Justice and the Hong Kong Police Force must have new departments to handle national security cases.Footnote 18 While no special courts are established, the Chief Executive must designate those judges and magistrates allowed to hear NSL cases.Footnote 19 A new Mainland office of national security is established in Hong Kong.Footnote 20 In exceptional cases, such as where a case is complex and too difficult for the HKSAR to exercise jurisdiction, this new office will take over the case and apply Mainland laws for the arrest, trial and punishment of defendants.Footnote 21 Acts of this office and its staff performed in the course of duty and in accordance with the NSL are not subject to Hong Kong's jurisdiction.Footnote 22
Persons charged with NSL offences are to be tried on indictment generally following existing procedures.Footnote 23 However, trials may exceptionally be closed to the media and public, jury trials may be replaced by trials presided over by three High Court judges, and certificate evidence binding on the court may be adduced.Footnote 24 New police powers to investigate national security offences are conferred on the Hong Kong police.Footnote 25 They are detailed in a set of Implementation Rules made by the Chief Executive in conjunction with the new Mainland office pursuant to Article 43 of the NSL and coming into operation on July 7, 2020.Footnote 26
Reaction to the Law
Many industrialized Western nations reacted critically to the NSL, expressing concerns with the law's potential impact on human rights and Hong Kong's loss of autonomy. The United States imposed sanctions on Hong Kong and Mainland officials “for undermining Hong Kong's autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.”Footnote 27 The United States, the United Kingdom, Canada, Australia, New Zealand, Germany, Finland, Ireland, and the Netherlands suspended their extradition and mutual assistance treaties with Hong Kong because of the risk that a person extradited to Hong Kong might now be subjected to trial and punishment on the Mainland under Chinese laws.Footnote 28 Some countries, including the United Kingdom, Australia, Canada, the United States, and Germany have indicated an intention to grant asylum or special visas to Hong Kong residents.
In the first Hong Kong judicial decision to consider the NSL, in the context of a habeas corpus application, the Court of First Instance held that courts “should continue to adopt the common law approach in the construction” of the NSL and provisions of the NSL ought “to be construed and applied, so far as reasonably possible, in a manner which is consistent with the protection of fundamental rights.”Footnote 29
Contents
Chapter I General Principles
Chapter II The Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security
Part 1 Duties
Part 2 Government Bodies
Chapter III Offences and Penalties
Part 1 Secession
Part 2 Subversion
Part 3 Terrorist Activities
Part 4 Collusion with a Foreign Country or with External Elements to Endanger National Security
Part 5 Other Provisions on Penalty
Part 6 Scope of Application
Chapter IV Jurisdiction, Applicable Law and Procedure
Chapter V Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region
Chapter VI Supplementary Provisions
Chapter I
General Principles
Article 1 This Law is enacted, in accordance with the Constitution of the People's Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and the Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region, for the purpose of:
• ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;
• safeguarding national security;
• preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;
• maintaining prosperity and stability of the Hong Kong Special Administrative Region; and
• protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region.
Article 2 The provisions in Articles 1 and 12 of the Basic Law of the Hong Kong Special Administrative Region on the legal status of the Hong Kong Special Administrative Region are the fundamental provisions in the Basic Law. No institution, organisation or individual in the Region shall contravene these provisions in exercising their rights and freedoms.
Article 3 The Central People's Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.
It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.
The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.
Article 4 Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.
Article 5 The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under the law.
A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected. No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings.
Article 6 It is the common responsibility of all the people of China, including the people of Hong Kong, to safeguard the sovereignty, unification and territorial integrity of the People's Republic of China.
Any institution, organisation or individual in the Hong Kong Special Administrative Region shall abide by this Law and the laws of the Region in relation to the safeguarding of national security, and shall not engage in any act or activity which endangers national security.
A resident of the Region who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China in accordance with the law.
Chapter II
The Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security
Part 1 Duties
Article 7 The Hong Kong Special Administrative Region shall complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law of the Hong Kong Special Administrative Region and shall refine relevant laws.
Article 8 In order to safeguard national security effectively, the law enforcement and judicial authorities of the Hong Kong Special Administrative Region shall fully enforce this Law and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security.
Article 9 The Hong Kong Special Administrative Region shall strengthen its work on safeguarding national security and prevention of terrorist activities. The Government of the Hong Kong Special Administrative Region shall take necessary measures to strengthen public communication, guidance, supervision and regulation over matters concerning national security, including those relating to schools, universities, social organisations, the media, and the internet.
Article 10 The Hong Kong Special Administrative Region shall promote national security education in schools and universities and through social organisations, the media, the internet and other means to raise the awareness of Hong Kong residents of national security and of the obligation to abide by the law.
Article 11 The Chief Executive of the Hong Kong Special Administrative Region shall be accountable to the Central People's Government for affairs relating to safeguarding national security in the Hong Kong Special Administrative Region and shall submit an annual report on the performance of duties of the Region in safeguarding national security.
The Chief Executive shall, at the request of the Central People's Government, submit in a timely manner a report on specific matters relating to safeguarding national security.
Part 2 Government Bodies
Article 12 The Hong Kong Special Administrative Region shall establish the Committee for Safeguarding National Security. The Committee shall be responsible for affairs relating to and assume primary responsibility for safeguarding national security in the Region. It shall be under the supervision of and accountable to the Central People's Government.
Article 13 The Chief Executive shall be the chairperson of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region. The other members of the Committee shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive's Office.
A secretariat headed by a Secretary-General shall be established under the Committee. The Secretary-General shall be appointed by the Central People's Government upon nomination by the Chief Executive.
Article 14 The duties and functions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be:
(1) analysing and assessing developments in relation to safeguarding national security in the Hong Kong Special Administrative Region, making work plans, and formulating policies for safeguarding national security in the Region;
(2) advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security; and
(3) coordinating major work and significant operations for safeguarding national security in the Region.
No institution, organisation or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review.
Article 15 The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall have a National Security Adviser, who shall be designated by the Central People's Government and provide advice on matters relating to the duties and functions of the Committee. The National Security Adviser shall sit in on meetings of the Committee.
Article 16 The Police Force of the Hong Kong Special Administrative Region shall establish a department for safeguarding national security with law enforcement capacity.
The head of the department for safeguarding national security of the Hong Kong Police Force shall be appointed by the Chief Executive. The Chief Executive shall seek in writing the opinion of the Office established under Article 48 of this Law before making the appointment. When assuming office, the head of the department for safeguarding national security of the Hong Kong Police Force shall swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, and swear to abide by the law and to observe the obligation of secrecy.
The department for safeguarding national security of the Hong Kong Police Force may recruit qualified professionals and technical personnel from outside the Hong Kong Special Administrative Region to provide assistance in the performance of duties for safeguarding national security.
Article 17 The duties and functions of the department for safeguarding national security of the Hong Kong Police Force shall be:
(1) collecting and analysing intelligence and information concerning national security;
(2) planning, coordinating and enforcing measures and operations for safeguarding national security;
(3) investigating offences endangering national security;
(4) conducting counter-interference investigation and national security review;
(5) carrying out tasks of safeguarding national security assigned by the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region; and
(6) performing other duties and functions necessary for the enforcement of this Law.
Article 18 The Department of Justice of the Hong Kong Special Administrative Region shall establish a specialised prosecution division responsible for the prosecution of offences endangering national security and other related legal work. The prosecutors of this division shall be appointed by the Secretary for Justice after obtaining the consent of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region.
The head of the specialised prosecution division of the Department of Justice shall be appointed by the Chief Executive, who shall seek in writing the opinion of the Office established under Article 48 of this Law before making the appointment. When assuming office, the head of the specialised prosecution division shall swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, and swear to abide by the law and to observe the obligation of secrecy.
Article 19 The Financial Secretary of the Hong Kong Special Administrative Region shall, upon approval of the Chief Executive, appropriate from the general revenue a special fund to meet the expenditure for safeguarding national security and approve the establishment of relevant posts, which are not subject to any restrictions in the relevant provisions of the laws in force in the Region. The Financial Secretary shall submit an annual report on the control and management of the fund for this purpose to the Legislative Council of the Hong Kong Special Administrative Region.
Chapter III
Offences and Penalties
Part 1 Secession
Article 20 A person who organises, plans, commits or participates in any of the following acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification shall be guilty of an offence:
(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; or
(3) surrendering the Hong Kong Special Administrative Region or any other part of the People's Republic of China to a foreign country.
A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.
Article 21 A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 20 of this Law shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.
Part 2 Subversion
Article 22 A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:
(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; or
(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.
A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.
Article 23 A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 22 of this Law shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.
Part 3 Terrorist Activities
Article 24 A person who organises, plans, commits, participates in or threatens to commit any of the following terrorist activities causing or intended to cause grave harm to the society 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 shall be guilty of an offence:
(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.
A person who commits the offence causing serious bodily injury, death or significant loss of public or private property shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; in other circumstances, a person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.
Article 25 A person who organises or takes charge of a terrorist organisation shall be guilty of an offence and shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years, and shall be subject to confiscation of property; a person who actively participates in a terrorist organisation shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall be imposed with a criminal fine; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction, and shall be liable to a criminal fine.
For the purpose of this Law, a terrorist organisation means an organisation which commits or intends to commit the offence under Article 24 of this Law or participates or assists in the commission of the offence.
Article 26 A person who provides support, assistance or facility such as training, weapons, information, funds, supplies, labour, transport, technologies or venues to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses substances such as explosive, poisonous or radioactive substances and pathogens of infectious diseases or uses other means to prepare for the commission of a terrorist activity, shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall be imposed with a criminal fine or subject to confiscation of property; in other circumstances, a person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine.
If the act referred to in the preceding paragraph also constitutes other offences, the person who commits the act shall be convicted and sentenced for the offence that carries a more severe penalty.
Article 27 A person who advocates terrorism or incites the commission of a terrorist activity shall be guilty of an offence. If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall be imposed with a criminal fine or subject to confiscation of property; in other circumstances, a person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine.
Article 28 The provisions of this Part shall not affect the prosecution of terrorist offences committed in other forms or the imposition of other measures such as freezing of property in accordance with the laws of the Hong Kong Special Administrative Region.
Part 4 Collusion with a Foreign Country or with External Elements to Endanger National Security
Article 29 A person who steals, spies, obtains with payment, or unlawfully provides State secrets or intelligence concerning national security for a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People's Republic of China shall be guilty of an offence; a person who requests a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People's Republic of China, or conspires with a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People's Republic of China, or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People's Republic of China, to commit any of the following acts shall be guilty of an offence:
(1) waging a war against the People's Republic of China, or using or threatening to use force to seriously undermine the sovereignty, unification and territorial integrity of the People's Republic of China;
(2) seriously disrupting the formulation and implementation of laws or policies by the Government of the Hong Kong Special Administrative Region or by the Central People's Government, which is likely to cause serious consequences;
(3) rigging or undermining an election in the Hong Kong Special Administrative Region, which is likely to cause serious consequences;
(4) imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People's Republic of China; or
(5) provoking by unlawful means hatred among Hong Kong residents towards the Central People's Government or the Government of the Region, which is likely to cause serious consequences.
A person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years.
The institution, organisation and individual outside the mainland, Hong Kong, and Macao of the People's Republic of China referred to in the first paragraph of this Article shall be convicted and punished for the same offence.
Article 30 A person who conspires with or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation, or individual outside the mainland, Hong Kong, and Macao of the People's Republic of China to commit the offences under Article 20 or 22 of this Law shall be liable to a more severe penalty in accordance with the provisions therein respectively.
Part 5 Other Provisions on Penalty
Article 31 An incorporated or unincorporated body such as a company or an organisation which commits an offence under this Law shall be imposed with a criminal fine.
The operation of an incorporated or unincorporated body such as a company or an organisation shall be suspended or its licence or business permit shall be revoked if the body has been punished for committing an offence under this Law.
Article 32 Proceeds obtained from the commission of an offence under this Law including financial aid, gains and rewards, and funds and tools used or intended to be used in the commission of the offence shall be seized and confiscated.
Article 33 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.
Article 34 A person who is not a permanent resident of the Hong Kong Special Administrative Region may be subject to deportation as the sole or an additional punishment if he or she commits an offence under this Law.
A person who is not a permanent resident of the Region may be subject to deportation if he or she contravenes the provisions of this Law but is not prosecuted for any reason.
Article 35 A person who is convicted of an offence endangering national security by a court shall be disqualified from standing as a candidate in the elections of the Legislative Council and district councils of the Hong Kong Special Administrative Region, holding any public office in the Region, or serving as a member of the Election Committee for electing the Chief Executive. If a person so convicted is a member of the Legislative Council, a government official, a public servant, a member of the Executive Council, a judge or a judicial officer, or a member of the district councils, who has taken an oath or made a declaration to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, he or she shall be removed from his or her office upon conviction, and shall be disqualified from standing for the aforementioned elections or from holding any of the aforementioned posts.
The disqualification and removal from offices referred to in the preceding paragraph shall be announced by the authorities responsible for organising and managing the relevant elections or for the appointment and removal of holders of public office.
Part 6 Scope of Application
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.
Article 39 This Law shall apply to acts committed after its entry into force for the purpose of conviction and imposition of punishment.
Chapter IV
Jurisdiction, Applicable Law and Procedure
Article 40 The Hong Kong Special Administrative Region shall have jurisdiction over cases concerning offences under this Law, except under the circumstances specified in Article 55 of this Law.
Article 41 This Law and the laws of the Hong Kong Special Administrative Region shall apply to procedural matters, including those related to criminal investigation, prosecution, trial, and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.
No prosecution shall be instituted in respect of an offence endangering national security without the written consent of the Secretary for Justice. This provision shall not prejudice the arrest and detention of a person who is suspected of having committed the offence or the application for bail by the person in accordance with the law.
Cases concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment.
The trial shall be conducted in an open court. When circumstances arise such as the trial involving State secrets or public order, all or part of the trial shall be closed to the media and the public but the judgment shall be delivered in an open court.
Article 42 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.
Article 43 When handling cases concerning offence endangering national security, the department for safeguarding national security of the Police Force of the Hong Kong Special Administrative Region may take measures that law enforcement authorities, including the Hong Kong Police Force, are allowed to apply under the laws in force in the Hong Kong Special Administrative Region in investigating serious crimes, and may also take the following measures:
(1) search of premises, vehicles, vessels, aircraft and other relevant places and electronic devices that may contain evidence of an offence;
(2) ordering any person suspected of having committed an offence endangering national security to surrender travel documents, or prohibiting the person concerned from leaving the Region;
(3) freezing of, applying for restraint order, charging order and confiscation order in respect of, and forfeiture of property used or intended to be used for the commission of the offence, proceeds of crime, or other property relating to the commission of the offence;
(4) requiring a person who published information or the relevant service provider to delete the information or provide assistance;
(5) requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People's Republic of China, or an agent of authorities or a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People's Republic of China, to provide information;
(6) upon approval of the Chief Executive, carrying out interception of communications and conducting covert surveillance on a person who is suspected, on reasonable grounds, of having involved in the commission of an offence endangering national security; and
(7) requiring a person, who is suspected, on reasonable grounds, of having in possession information or material relevant to investigation, to answer questions and furnish such information or produce such material.
The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be responsible for supervising the implementation of the measures stipulated in the first paragraph of this Article by law enforcement authorities including the department for safeguarding national security of the Hong Kong Police Force.
The Chief Executive shall be authorised, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under the first paragraph of this Article.
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.
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.
Article 45 Unless otherwise provided by this Law, magistrates' courts, the District Court, the High Court and the Court of Final Appeal shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the Hong Kong Special Administrative Region.
Article 46 In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members. Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.
Where the Secretary for Justice has issued the certificate, the reference to “a jury” or “a verdict of the jury” in any provision of the laws of the Hong Kong Special Administrative Region applicable to the related proceedings shall be construed as referring to the judges or the functions of the judge as a judge of fact.
Article 47 The courts of the Hong Kong Special Administrative Region shall obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.
Chapter V
Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region
Article 48 The Central People's Government shall establish in the Hong Kong Special Administrative Region an office for safeguarding national security. The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall perform its mandate for safeguarding national security and exercise relevant powers in accordance with the law.
The staff of the Office shall be jointly dispatched by relevant national security authorities under the Central People's Government.
Article 49 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall perform the following mandate:
(1) analysing and assessing developments in relation to safeguarding national security in the Hong Kong Special Administrative Region, and providing opinions and making proposals on major strategies and important policies for safeguarding national security;
(2) overseeing, guiding, coordinating with, and providing support to the Region in the performance of its duties for safeguarding national security;
(3) collecting and analysing intelligence and information concerning national security; and
(4) handling cases concerning offence endangering national security in accordance with the law.
Article 50 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall perform its mandate in strict compliance with the law and be subject to supervision in accordance with the law. It shall not infringe upon the lawful rights and interests of any individual or organisation.
The staff of the Office shall abide by the laws of the Hong Kong Special Administrative Region as well as national laws.
The staff of the Office shall be subject to the supervision of the national supervisory authorities in accordance with the law.
Article 51 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall be funded by the Central People's Government.
Article 52 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall strengthen working relations and cooperation with the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region, the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region, and the Hong Kong Garrison of the Chinese People's Liberation Army.
Article 53 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall establish a mechanism of coordination with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region to oversee and provide guidance on the work of the Hong Kong Special Administrative Region for safeguarding national security.
The working departments of the Office shall establish mechanisms for collaboration with the relevant authorities of the Region responsible for safeguarding national security to enhance information sharing and operations coordination.
Article 54 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region and the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region shall, together with the Government of the Hong Kong Special Administrative Region, take necessary measures to strengthen the management of and services for organs of foreign countries and international organisations in the Region, as well as non-governmental organisations and news agencies of foreign countries and from outside the mainland, Hong Kong, and Macao of the People's Republic of China in the Region.
Article 55 The Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall, upon approval by the Central People's Government of a request made by the Government of the Hong Kong Special Administrative Region or by the Office itself, 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.
Article 56 In exercising jurisdiction over a case concerning offence endangering national security pursuant to Article 55 of this Law, the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region shall initiate investigation into the case, the Supreme People's Procuratorate shall designate a prosecuting body to prosecute it, and the Supreme People's Court shall designate a court to adjudicate it.
Article 57 The Criminal Procedure Law of the People's Republic of China and other related national laws shall apply to procedural matters, including those related to criminal investigation, examination and prosecution, trial, and execution of penalty, in respect of cases over which jurisdiction is exercised pursuant to Article 55 of this Law.
When exercising jurisdiction over cases pursuant to Article 55 of this Law, the law enforcement and judicial authorities referred to in Article 56 of this Law shall exercise powers in accordance with the law. The legal documents issued by these authorities on their decisions to take mandatory and investigation measures and on their judicial decisions shall have legal force in the Hong Kong Special Administrative Region. The institutions, organisations and individuals concerned must comply with measures taken by the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region in accordance with the law.
Article 58 In a case over which jurisdiction is exercised pursuant to Article 55 of this Law, a criminal suspect shall have the right to retain a lawyer to represent him or her from the day he or she first receives inquiry made by the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region or from the day a mandatory measure is taken against him or her. A defence lawyer may provide legal assistance to a criminal suspect or defendant in accordance with the law.
A criminal suspect or defendant who is arrested in accordance with the law shall be entitled to a fair trial before a judicial body without undue delay.
Article 59 In a case over which jurisdiction is exercised pursuant to Article 55 of this Law, any person who has information pertaining to an offence endangering national security under this Law is obliged to testify truthfully.
Article 60 The acts performed in the course of duty by the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region and its staff in accordance with this Law shall not be subject to the jurisdiction of the Hong Kong Special Administrative Region.
In the course of performing duty, a holder of an identification document or a document of certification issued by the Office and the articles including vehicles used by the holder shall not be subject to inspection, search or detention by law enforcement officers of the Region.
The Office and its staff shall enjoy other rights and immunities provided by laws of the Region.
Article 61 The relevant departments of the Government of the Hong Kong Special Administrative Region shall provide necessary facilitation and support to the Office for Safeguarding National Security of the Central People's Government in the Hong Kong Special Administrative Region in performing its mandate in accordance with this Law, and shall stop any act obstructing the performance of such mandate and hold those who commit such act liable in accordance with the law.
Chapter VI
Supplementary Provisions
Article 62 This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.
Article 63 The law enforcement and judicial authorities and their staff who handle cases concerning offence endangering national security under this Law, or the law enforcement and judicial authorities of the Hong Kong Special Administrative Region and their staff who handle other cases concerning offence endangering national security, shall keep confidential State secrets, trade secrets or personal information which they come to know in the process of handling such cases.
A lawyer who serves as defence counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he or she comes to know in the practice of law.
The relevant institutions, organisations and individuals who assist with the handling of a case shall keep confidential any information pertaining to the case.
Article 64 In the application of this Law in the Hong Kong Special Administrative Region, the terms “fixed-term imprisonment”, “life imprisonment”, “confiscation of property” and “criminal fine” in this Law respectively mean “imprisonment”, “imprisonment for life”, “confiscation of proceeds of crime” and “fine”; “short-term detention” shall be construed, with reference to the relevant laws of the Region, as “imprisonment”, “detention in a detention centre” or “detention in a training centre”; “restriction” shall be construed, with reference to the relevant laws of the Region, as “community service” or “detention in a reformatory school”; and “revoke licence or business permit” means “revoke registration or exemption from registration, or revoke licence” as provided for in the relevant laws of the Region.
Article 65 The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.
Article 66 This Law shall come into force on the date of its promulgation.
