I. Hong Kong’s autonomy and the CFA’S constitutional role

On paper, the Basic Law endows Hong Kong with an extraordinarily high degree of autonomy. Hong Kong has “independent finances”, issues its own currency, and is not subject to taxation by the Central Government.Footnote ²⁶ Hong Kong also issues its own passports and visas, monitors its land and sea borders, and operates its own immigration and customs regimes.Footnote ²⁷ Beijing promised to limit its own governance over Hong Kong to the areas of defence and foreign affairs.Footnote ²⁸ Even in that arena, Hong Kong is expressly authorized to “conduct relevant external affairs”, by participating in international organizations and by entering into agreements with foreign states.Footnote ²⁹ This is an important element in Hong Kong’s claim to international legal capacity, one that has been widely recognized, not only by scholars but also by foreign governments and courts.Footnote ³⁰ The local government publishes a long list of its bilateral agreements with foreign governments, as well as the multilateral agreements that apply to the territory.Footnote ³¹

Hong Kong has maintained its membership (under the name “Hong Kong, China”) in numerous international organizations, including the World Health Organization, the Asian Development Bank, and the Asia-Pacific Economic Forum (APEC).Footnote ³² Hong Kong was a founding member of the World Trade Organization (WTO) and continued to maintain its separate membership, even after Mainland China was admitted in 2001.Footnote ³³ Hong Kong also regularly participates in organizations that are formally limited to “states” (designated either as an “associate member” or as part of the China delegation).Footnote ³⁴

For the first two decades after the handover, the international community continued to recognize Hong Kong as a separate territorial unit, one with a good reputation for rule of law and transparency. These factors are important when foreign governments determine whether they can trust officials not to misuse or re-export sensitive technology and other controlled exports. Many foreign governments also negotiated Mutual Legal Assistance Agreements directly with the Hong Kong government.Footnote ³⁵ Prior to 2020, these governments knew that a fugitive who was extradited to Hong Kong would not be transferred to Mainland China because there was no extradition agreement between the two governments. This lack of an extradition mechanism was not the result of some “loophole” in Hong Kong’s legal system (as the local government implied during the “anti-extradition” protests of 2019). Rather, the legislature had consciously chosen not to provide for the possibility of extradition to other parts of China.Footnote ³⁶

Pursuant to Article 153 of the Hong Kong Basic Law, international agreements that applied to Hong Kong prior to 1997 (including human rights treaties) continued to apply after the handover. Beijing also promised to seek the views of the Hong Kong Government before applying any new treaties to the territory.Footnote ³⁷ Hong Kong has used this autonomy to “opt out” of certain treaties that apply to China generally. For example, although the United Kingdom and China are both states parties to the 1951 Convention on the Status of RefugeesFootnote ³⁸ and its 1967 Protocol,Footnote ³⁹ both governments agreed not to apply this treaty to Hong Kong, in deference to the Hong Kong government’s “firm policy of not granting asylum to or determining the refugee status of anyone”.Footnote ⁴⁰ Similarly, when China ratified the UN Trafficking Protocol,Footnote ⁴¹ it agreed not to apply the treaty to Hong Kong.Footnote ⁴² China has also filed special reservations for Hong Kong regarding a number of treaties.Footnote ⁴³

The drafters of the Joint Declaration and the Basic Law were well aware of the need to reassure Hong Kong residents that civil liberties would be maintained after reunification with China. Both instruments therefore promise that Hong Kong residents shall continue to enjoy the freedoms of speech, assembly, association, travel, religious belief, academic research, choice of occupation, the right to form trade unions and to strike.Footnote ⁴⁴ The Joint Declaration and Basic Law also provide that the ICCPR, the ICESCR, and various International Labour Organization (ILO) conventions “shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region”.Footnote ⁴⁵

Hong Kong residents (and the business community) also needed to be reassured that no court in Mainland China would hear appeals from Hong Kong. The CFA was thus established, replacing the Judicial Committee of the Privy Council in Hong Kong’s chain of appeal. The CFA sits as a bench of five judges: the Chief Justice; three “permanent judges” of the CFA; and a fifth “non-permanent” judge. The fifth judge can be selected from a panel of foreign judges (although there is no requirement that a foreign judge participate in every case). The practice of including foreign judges was authorized in the Basic Law as a means of enhancing confidence in Hong Kong’s legal system and many esteemed judges from other common law jurisdictions have served.Footnote ⁴⁶ Of course, there have been some noteworthy resignations by foreign judges since the NSL was enacted in mid-2020.Footnote ⁴⁷

The CFA hears appeals from Hong Kong’s Court of Appeal (an intermediate appellate court) and the Court of First Instance (CFI) (which exercises both criminal and civil jurisdiction). There is no appeal beyond the CFA and no mechanism by which a court in Mainland China (or any other central authority) can overturn a CFA judgment in a particular case. Although the Basic Law does not expressly state that Hong Kong courts have the power to engage in constitutional review of local legislation, the CFA has held that this power is implicit in Article 11 of the Basic Law, which states that no law enacted by the local legislature shall contravene the Basic Law.Footnote ⁴⁸ The CFA thus serves as a constitutional check on the local legislature and the local government. It should be noted, however, that some scholars from Mainland China have questioned whether the CFA holds the power to judicially review local laws.Footnote ⁴⁹

Moreover, the CFA does not hold the ultimate power to interpret the Hong Kong Basic Law. Unfortunately, this issue was not expressly addressed in the Joint Declaration. Common law lawyers reading the Joint Declaration in 1984 likely assumed that the power of interpretation would rest with Hong Kong’s independent judiciary, as an inherent part of its power of final adjudication. However, in China’s socialist legal system, the power of interpretation rests with the body that originally enacted the relevant legislation. The issue was extremely controversial during the drafting of the Basic Law. Mainland Chinese members of the Drafting Committee insisted that the power of interpretation should rest with the Standing Committee of the National People’s Congress (NPC) because the NPC would enact the Basic Law.Footnote ⁵⁰ Hong Kong members of the Drafting Committee opposed this because the Standing Committee is not an independent court but rather a political body within China’s one-party system. The final version of Article 158 of the Basic Law reflects an awkward compromise. It begins by stating that the power of interpretation of the Basic Law “shall be vested” in the NPC Standing Committee.Footnote ⁵¹ It then states that Hong Kong courts are authorized to interpret the Basic Law in the course of adjudicating cases; but the CFA must seek an interpretation from the NPC Standing Committee before issuing a final judgment that requires an interpretation of a provision of the Basic Law concerning “affairs which are the responsibility of the Central People’s Government” or “the relationship between the Central Authorities and the Region”.Footnote ⁵²

Article 158 of the Basic Law would be far less problematic if the Standing Committee only used its power to interpret Hong Kong’s Basic Law when the Hong Kong CFA requested an interpretation. But that expectation disappeared soon after the handover. In 1999, after the local government lost two actions for judicial review in the CFA, Hong Kong’s first Chief Executive (Tung Chee-hwa) requested an interpretation from the Standing Committee of Articles 22 and 24 of the Basic Law (which define who enjoys the “right of abode” in Hong Kong).Footnote ⁵³ Prior to this, it was widely assumed that any requests for interpretation would come from the CFA, through the process described in Article 158. Nonetheless, Tung insisted that the broad executive powers in the Basic Law implicitly empowered him to also request interpretations. Beijing apparently agreed because the Standing Committee issued the requested interpretation and essentially overruled the CFA. This did not change the outcomes in the two cases (because Article 158 provides that judgments previously rendered shall not be affected) but Hong Kong courts were obligated to apply the new interpretation in subsequent cases. The saga made it clear that Beijing would not hesitate to use its power of interpretation, despite the negative impact on the public’s perception of the CFA’s authority and Hong Kong’s autonomy.

The CFA has since acknowledged the binding force of interpretations issued by the Standing Committee and the fact that it need not wait for a judicial reference.Footnote ⁵⁴ The CFA has also acknowledged that interpretations by the Standing Committee can be legislative in nature and have the effect of supplementing the text.Footnote ⁵⁵ Unfortunately, this has become an easy way for Beijing to amend the Basic Law without admitting that it is doing so. Yet the CFA still applies common law rules when following Standing Committee interpretations.Footnote ⁵⁶ For example, the CFA has held that interpretations by the Standing Committee apply retrospectively, from the time the Basic Law took effect.Footnote ⁵⁷ It would seem more appropriate to apply such interpretations prospectively, particularly when the interpretation itself does not purport to apply retrospectively.Footnote ⁵⁸

The five official “interpretations” of the Basic Law by the NPC Standing Committee are only the tip of the iceberg. The Central Government regularly uses the power of interpretation to achieve Beijing’s desired outcomes, generally under the heading of a “decision” by either the NPC Standing Committee or the NPC itself.Footnote ⁵⁹ For example, in 2018, the NPC Standing Committee issued a decision pronouncing that the co-location arrangement (which provides for the application of Mainland China’s law and jurisdiction at its immigration checkpoint in a Hong Kong train station) is fully compliant with the Basic Law, pre-empting a constitutional challenge in the Hong Kong courts.Footnote ⁶⁰ Beijing has also made it clear that it is willing to use its power of interpretation to influence pending litigation, as it did during the “oath taking” controversy in 2016.Footnote ⁶¹

In this environment, it is probably pointless for the CFA to issue judgments that conflict with core interests of the Chinese Communist Party. Professors Chen and Yap have argued that the CFA has responded to this dilemma by taking a “middle path” – it develops constitutional rights in certain areas but avoids issuing judgments that will prompt a conflicting interpretation of the Basic Law from Beijing, which would further undermine the public’s faith in the CFA’s power of final adjudication.Footnote ⁶²

Finally, it should be noted that the CFA did not use the judicial reference mechanism in Article 158(3) of the Basic Law until 2011, when it sought the NPC Standing Committee’s views regarding the scope of “foreign affairs” and “acts of state”.Footnote ⁶³ The Standing Committee decided that the words “acts of state such as defense and foreign affairs” in Article 19(3) of the Basic Law included the determination by the Central Government as to rules of state immunity and that the courts of Hong Kong must, therefore, apply the principle of “absolute” immunity, which China had consistently applied in its relations with other sovereign states. But that situation did not last long: on 1 September 2023, China enacted the Foreign State Immunity Law, which took effect on 1 January 2024 and adopted the restrictive approach to state immunity.Footnote ⁶⁴ Thus foreign states will no longer enjoy sovereign immunity in litigation relating to commercial transactions and execution against state assets in Hong Kong which are used in commercial activities.

II. The impact of the ICCPR in Hong Kong prior to July 2020

As a common law legal system, Hong Kong adheres to the dualist approach to unincorporated treaties.Footnote ⁶⁵ Thus, although the United Kingdom (UK) ratified the ICCPR and the ICESCR in 1976 and applied both treaties to Hong Kong, they were not directly enforceable in the courts. The situation changed, with respect to the ICCPR, after the crackdown in Beijing in June 1989. In an effort to rebuild public confidence, Hong Kong’s colonial government proposed to draft a local BRO, which would be largely copied from the ICCPR. This was a logical choice because Beijing had already promised that the ICCPR and the ICESCR would continue to apply in Hong Kong.Footnote ⁶⁶

The BRO was introduced into the Legislative Council in 1990 and enacted in 1991.Footnote ⁶⁷ As originally enacted, the BRO stated (in the long title and in section 2(3)) that its purpose was to provide for the incorporation of the ICCPR as applied to Hong Kong. The UK simultaneously amended the Letters Patent (the colonial constitution for Hong Kong) in order to give the ICCPR constitutional force.Footnote ⁶⁸

Beijing initially threatened to invalidate the BRO in 1997, using its powers under Article 160 of the Basic Law.Footnote ⁶⁹ However, the BRO was not invalidated, probably because this would have been perceived as a violation of Article 39 of the Basic Law and of the Joint Declaration.Footnote ⁷⁰ Instead, the NPC Standing Committee declared only three provisions (sections two-three, three, and four) invalid, on the grounds that they purported to give the BRO a superior status. In practice, these provisions were superfluous and their deletion did not affect the local judiciary’s application of the BRO and the ICCPR.Footnote ⁷¹

Because the CFA was not established until 1997, it initially fell to Hong Kong’s lower courts to interpret and apply the BRO. In an important early decision, the Court of Appeal stated that Hong Kong judges can take guidance from courts in jurisdictions that have constitutionally entrenched bills of rights, as well as from the European Court of Human Rights, the European Human Rights Commission, and the decisions and comments of the UN Human Rights Committee.Footnote ⁷² Ironically, the Privy Council in London (which served as Hong Kong’s highest court of appeal prior to the handover) urged a more cautious approach with respect to the use of comparative materials.Footnote ⁷³ But Hong Kong judges have continued to cite foreign and international judgments. Lawyers in Hong Kong have also become very adept at using international and comparative materials in their arguments.

In 1999, the CFA decided Ng Kung Siu, a landmark judgment on the status of the ICCPR in Hong Kong’s legal system.Footnote ⁷⁴ The defendants had been convicted of violating two local ordinances that prohibited desecration of the national and regional flags. The Court of Appeal held that the restrictions violated the right to freedom of expression, which is protected by Article 27 of the Basic Law and Article 16 of the BRO (copied from Article 19 of the ICCPR). In its successful appeal to the CFA, the Hong Kong government relied heavily on the fact that certain democratic nations that have ratified the ICCPR also enforce laws prohibiting flag desecration. The CFA cited these examples in its judgment and upheld the two ordinances. It also cited several international sources (including the Siracusa Principles and an Advisory Opinion of the Inter-American Court of Human Rights) to strengthen its conclusions that the concept of “ordre public” was wide enough to include societal interests in protecting the national and regional flags and that the restriction on expression imposed by the ordinances was a proportionate means of achieving that legitimate aim. Thus, the restrictions could be justified under Article 16(3)(b) of the BRO (equivalent to Article 19(3)(b) of the ICCPR).

At the time, at least one local law professor was highly critical of the CFA’s judgment.Footnote ⁷⁵ However, one has to bear in mind that one of the local ordinances under review had implemented the National Flag Law, one of the few laws that China had applied to Hong Kong at that time.Footnote ⁷⁶ If the CFA had agreed with the Court of Appeal that the ordinance was unconstitutional, then it would have risked a second “re-interpretation” from the NPC Standing Committee, very soon after the first re-interpretation. Thus, the CFA apparently decided that Hong Kong could live with that narrow restriction on the form of political expression.

It is also noteworthy that the CFA took the opportunity in Ng Kung Siu to rule that the Hong Kong BRO provides for the incorporation of the ICCPR into the laws of Hong Kong and that any restriction on freedom of expression cannot contravene the ICCPR as it was applied to Hong Kong. In a subsequent case (upholding mandatory life sentences for murder) the CFA implied that this incorporation is actually required by Article 39 of the Basic Law, stating that the BRO “effects the necessary incorporation into our domestic laws of the ICCPR as applied to Hong Kong”.Footnote ⁷⁷ The CFA also cited the UN Human Rights Committee, the European Court of Human Rights, and numerous foreign courts regarding the meaning of Article 5 of the BRO (which incorporates Article 9 of the ICCPR).Footnote ⁷⁸ Thus, although these two early CFA judgments largely sided with the local government, they also established important precedents regarding the status of the ICCPR in Hong Kong’s legal system and the relevance of international and foreign case law, particularly when applying the proportionality test.Footnote ⁷⁹

In Leung Kwok Hung and Others v. Hong Kong SAR, the CFA held that a clause giving the police the power to restrict or prohibit a demonstration on the ground of ordre public was unconstitutionally vague and failed to meet the ICCPR’s requirement that any such restriction be prescribed by law.Footnote ⁸⁰ The CFA therefore severed the words ordre public from the Public Order Ordinance. This was arguably a conservative judgment because the CFA upheld the prior notification requirement and did not condemn the criminal penalties that can be imposed for merely failing to notify the police of a peaceful demonstration. But the CFA emphasized that freedom of assembly is a fundamental right and that the Commissioner of Police must exercise his powers in such a manner that any restriction imposed upon the demonstrators “is no more than necessary” to accomplish the relevant statutory legitimate purpose. It also stated that the Police Commissioner must give reasons for restrictions, which must be specific enough to “show that he has properly applied the proportionality test in making his decision”.Footnote ⁸¹ Interestingly, the CFA cited Hong Kong’s Second Periodic Report to the UN Human Rights Committee as support for the proposition that the right of assembly imposes a positive duty on the government to enable lawful assemblies to take place.Footnote ⁸² It also cited the Siracusa Principles, Nowak’s commentary on the ICCPR, the European Court of Human Rights, and many foreign courts.

In this author’s view, the CFA’s 2005 judgment in Yeung May-wan and Others v. Hong Kong SAR was one of the CFA’s strongest judgments regarding civil liberties.Footnote ⁸³ The CFA did not have to invoke its constitutional jurisdiction in this case but it did consider how constitutionally protected rights interact with criminal law and the powers of the police. A group of Falun Gong practitioners had been protesting peacefully outside the Hong Kong offices of the Liaison Office of the Central People’s Government and refused to obey a police order to move to another location. The Court of Appeal overturned their convictions for obstruction of a public place but the CFA went further and also reversed the convictions arising from certain defendants’ efforts to resist arrest. The judgment interpreted the freedom of assembly in Article 17 of the Hong Kong BRO (Article 21 of the ICCPR) and also the right to have one’s conviction reviewed by a higher tribunal, which is protected by Article 11 of the BRO (Article 14 of the ICCPR). The CFA cited the Human Rights Committee’s General Comment 13 on Article 14 of the ICCPR as well as foreign authorities on the law of obstruction and the question of what constitutes a “reasonable suspicion” for the purposes of determining whether an arrest is lawful. The CFA then reached the fairly dramatic conclusion that the police were not even acting in the “due execution” of their duties when they arrested the defendants. The CFA made it clear that foreign case law had influenced its analysis, noting that the police had been presented “with a difficult situation in relation to an area of the law which has been developing”.Footnote ⁸⁴ The CFA took a similar approach in 2013 when it had to interpret a provision in the Public Order Ordinance that prohibits acting “in a disorderly manner” at a public gathering for the purposes of preventing the transaction of business.Footnote ⁸⁵ It cited the European Court of Human Rights and several foreign courts and ultimately held that it was necessary to give this statutory prohibition a narrow interpretation because it restricts the freedoms of speech and assembly.Footnote ⁸⁶

This is just a small sample of the decisions in which the CFA has used international law and foreign jurisprudence in the context of civil liberties. In contrast, international law has played virtually no role in promoting local democracy. The Joint Declaration was vague on this point but it implied that Hong Kong would develop democracyFootnote ⁸⁷ and the colonial government certainly encouraged that expectation.Footnote ⁸⁸ For example, during the public consultation on the Joint Declaration, the colonial government went so far as to circulate a “Green Paper” proposing a parliamentary system of government.Footnote ⁸⁹ Even after disputes developed with Beijing, the British government continued to assure the UN Human Rights Committee that it was pursuing measures to “establish a fully democratic system in Hong Kong” before 1997.Footnote ⁹⁰ In the end, however, even the modest reforms implemented in 1995 were undone in 1997 by the Provisional Legislative Council established by Beijing.Footnote ⁹¹ The conflicts over democracy have plagued Hong Kong ever since.Footnote ⁹²

This is one area in which Article 21 of the BRO (which was copied from Article 25 of the ICCPR) has not assisted, largely because the “as applied to Hong Kong” language in Article 39 of the Basic Law has been interpreted as preserving the reservations to the ICCPR filed by the UK in 1976.Footnote ⁹³ In any event, Beijing has repeatedly used its powers of interpretation of the Basic Law to block democracy reforms.Footnote ⁹⁴ The NPC Standing Committee’s Decision of 31 August 2014 was particularly devastating and effectively launched the Occupy Central and “umbrella” movements.Footnote ⁹⁵ While these movements remained peaceful, they also failed to generate any meaningful reforms.

After Occupy Central ended, Beijing became far more adept at curtailing political speech and interfering in local governance, decreasing confidence in OCTS.Footnote ⁹⁶ This set the stage for the 2019 protests, which began as a peaceful protest against a government proposal to amend Hong Kong’s law of extradition but evolved into a massive anti-government movement, including a good deal of property damage and some violent clashes with the police.Footnote ⁹⁷ In early October, the Hong Kong government invoked the Emergency Regulations Ordinance (ERO) to promulgate the Prohibition on Face Covering Regulation (PFCR), which criminalized the wearing of masks by protesters. Pro-democracy legislators immediately challenged the PFCR and the Court of First Instance (CFI) decided that the ERO was not compatible with the Basic Law and was therefore unconstitutional. The CFI also held that the prohibitions in the PFCR, in respect of unauthorized assemblies, public meetings and public processions, were unconstitutional because they placed disproportionate restrictions on the freedoms of assembly and speech and the right to privacy, as protected in the Basic Law and the Hong Kong Bill of Rights.Footnote ⁹⁸ This decision provoked a very worrying statement from a spokesperson from the Legislative Affairs Commission of the NPC Standing Committee, claiming that only the NPC Standing Committee possessed the power to declare whether a local Hong Kong ordinance complies with the Basic Law.

Of course, if the NPC Standing Committee had pursued that position in an official “Interpretation” it could have destroyed the longstanding practice of constitutional review by Hong Kong courts. Fortunately, that has not occurred. But that may have something to do with the fact that the CFI’s decision was later reversed by Hong Kong’s Court of AppealFootnote ⁹⁹ and the CFA.Footnote ¹⁰⁰ The CFA walked a careful path in its decision. On one hand, it applied the BRO and the ICCPR and cited the European Court of Human RightsFootnote ¹⁰¹ and also the Human Rights Committee’s General Comment 37, which provides that participants in a public assembly should be allowed to maintain their anonymity unless there are compelling reasons not to allow it.Footnote ¹⁰² But the CFA then determined that those compelling reasons existed by late 2019 because approximately 30% of public gatherings were ending in violence and the ability to conceal one’s identity might encourage certain people to engage in unlawful acts. Thus, although the CFA sided with the government on this particular restriction, its judgment can be seen as an attempt to maintain the general principle that restrictions adopted in the name of public order cannot be disproportionate.

However, while Hong Kong judges debated the scope of the right to protest, the Chinese Communist Party was devising a way to eliminate it. The Party reportedly decided, as early as October 2019, to draft a national security law for Hong Kong, although it did not announce it until May 2020.Footnote ¹⁰³ As explained in the next section, the NSL has marginalized the ICCPR in Hong Kong, particularly with respect to the right to fair trial and the freedoms of expression, assembly, and association.

III. The reduced role of the ICCPR in Hong Kong’s security era

Article 18 of the Basic Law gives the Central Government the power to add national laws to Annex III but states that such laws “shall be confined to those relating to defense and foreign affairs as well as other matters outside the limits of the autonomy” of Hong Kong.Footnote ¹⁰⁴ Annex III was initially quite short; it included, inter alia, laws relating to the national flag, nationality, and China’s Declaration on the territorial sea.Footnote ¹⁰⁵ However, in May 2020, the NPC adopted a Decision authorizing the NPC Standing Committee to adopt a law safeguarding national security in Hong Kong.Footnote ¹⁰⁶ This arguably violated Articles 18 and 23 of the Basic Law, which provides that Hong Kong “shall enact laws on its own” to protect national security.Footnote ¹⁰⁷ Hong Kong did have pre-existing legislation that fell within the scope of national security. But the local government withdrew, in 2003, a bill to fully implement Article 23 (due to public opposition) and it never proposed a modified bill.Footnote ¹⁰⁸ This was a mistake, as Beijing would later point to this failure to legislate locally as one of the justifications for applying the NSL to Hong Kong in 2020.Footnote ¹⁰⁹

The NSL was enacted on 30 June 2020 and brought into force by 11:00 pm that evening.Footnote ¹¹⁰ There was no opportunity for residents to read the law before it came into force. The NSL criminalizes subversion, secession, collusion with foreign forces and “terrorist acts”. The NSL defines the new offenses (as well as the inchoate offenses associated with them, such as “incitement to secession”) in very broad language, so as to criminalize at least some peaceful speech acts.Footnote ¹¹¹ As with the Basic Law, the courts of Hong Kong may interpret the NSL in the course of adjudication; but the Standing Committee of the NPC holds the overriding authority to promulgate interpretations.Footnote ¹¹² Beijing has already used this power to override the Hong Kong courts, ensuring that Jimmy Lai could not retain a British barrister (Timothy Owen) to defend Lai in his national security trial.Footnote ¹¹³ In the event of a conflict with local law, the NSL expressly prevails.Footnote ¹¹⁴

The NSL also established powerful new security institutions, which are now operating in Hong Kong but accountable only to Beijing. This is a major change to OCTS, as Beijing was not supposed to play a role in law enforcement in Hong Kong.Footnote ¹¹⁵ Beijing has established its own Office for Safeguarding National Security of the Central People’s Government in Hong Kong.Footnote ¹¹⁶ Hong Kong police and customs officials have no jurisdiction over the staff from this new Office and cannot search their vehicles.Footnote ¹¹⁷

There is also a new “special branch” within the Hong Kong police to investigate NSL offenses, which can recruit personnel directly from the Mainland.Footnote ¹¹⁸ It was given extraordinary powers of investigation, including the power to conduct warrantless searches.Footnote ¹¹⁹ A Committee for Safeguarding National Security was also created, which has promulgated rules for warrantless searches, as well as “operating guidelines and principles” for covert surveillance.Footnote ¹²⁰ Acts of this Committee are shielded from judicial review.Footnote ¹²¹ The NSL also provides for a special prosecution division for NSL offenses. The prosecutors are appointed by the Secretary for Justice but only after obtaining consent from the Committee for Safeguarding National Security.Footnote ¹²²

Perhaps most concerning are the changes to Hong Kong’s rules of criminal procedure for “security-related” cases. The NSL requires these cases to be tried by certain specially designated judges and a judge can be removed from the list if she “makes any statement or behaves in any manner endangering national security” during the term of office.Footnote ¹²³ Although Hong Kong residents normally have a right to jury trial for serious offenses, the NSL empowers the Secretary for Justice to require a bench trial.Footnote ¹²⁴ As a result, there have been no jury trials thus far for NSL offenses. The normal presumption in favour of bail in Hong Kong has also been reversed, which means that defendants have languished in pretrial detention for months and even years.Footnote ¹²⁵ The government now routinely opposes bail applications in NSL cases, even when the alleged crimes were entirely peaceful. The UN Human Rights Committee criticized this practice in its fourth periodic review of Hong Kong, conducted in July 2022.Footnote ¹²⁶

One of the few positive aspects of the NSL is that Articles 4 and 5 purport to preserve the right to fair trial, the right to be presumed innocent, and other important human rights, including those stated in the ICCPR and the ICESCR. The Hong Kong government repeatedly pointed to this language during the UN Human Rights Committee’s 2022 review. But the Committee was not convinced, partly because the government’s replies to questions indicate that it considers virtually any enforcement action as compliant with the ICCPR, as long as it is done according to law (the NSL) and in the name of protecting national security.Footnote ¹²⁷

Professors Fu and Hor have argued that the human rights clauses in the NSL – and especially the reference to the ICCPR – “should not be regarded as a mere window dressing exercise not meant to have any constraints over enforcement”.Footnote ¹²⁸ But, in practice, the only way that Articles 4 and 5 of the NSL will have practical impact is if the judiciary enforces them. We cannot expect Hong Kong courts to invalidate specific provisions in the NSL (despite the obvious conflicts with the ICCPR). Indeed, the CFA has gone out of its way to state that legislative acts of the NPC Standing Committee are not subject to judicial review in Hong Kong “on the basis of any alleged incompatibility with the Basic Law or the ICCPR as applied to Hong Kong”.Footnote ¹²⁹ However, local courts should be able to use the ICCPR as a guide to interpreting the vague language in the NSL, particularly in light of the express reference to the ICCPR in the Basic Law.Footnote ¹³⁰

The CFA’s opinion in HKSAR v. Lai Chee Ying (in which the government successfully appealed a lower court decision granting bail to Jimmy Lai) appeared to endorse such an approach.Footnote ¹³¹ The CFA held that Article 42(2) is a specific exception to Hong Kong’s ordinary bail regime and must be enforced. But it also stated that Articles 4 and 5 are “centrally important to the interpretation of the NSL” and that “those rights, freedoms and values are to be protected and adhered to” in applying the NSL.Footnote ¹³² This implies that any vague language restricting civil liberties should be interpreted to comply with the ICCPR, which allows restrictions to protect national security but only to the extent that they are necessary and proportionate.Footnote ¹³³ The UN Human Rights Committee regularly reminds governments that they cannot invoke “national security” as a blanket justification for suppressing political expression.Footnote ¹³⁴ Rather, a restriction must be a proportionate response to a tangible threat. Hong Kong’s CFA has developed a similar proportionality test in its own pre-NSL jurisprudence.Footnote ¹³⁵

Unfortunately, the CFA’s 2021 judgment in HKSAR v. Ng Hau Yi revealed that it will not require the government to justify expansive interpretations of its new powers under the NSL. In that case the CFA agreed with the government that the presumption against bail provided in Article 42 of the NSL can be applied even to non-NSL offenses (such as seditious speech, which is not covered in the NSL but rather in local legislation).Footnote ¹³⁶ Given that the language in Article 42 of the NSL is ambiguous, the CFA could have looked to Article 19 of the ICCPR for guidance and not given the presumption against bail in Article 42 of the NSL a broader interpretation than necessary. For some reason, the CFA also took the opportunity to hold that the extraordinary investigation powers conferred by Article 43 of the NSL also apply to these non-NSL offenses, although there was no need to address this issue in an appeal relating to a bail application.Footnote ¹³⁷

Thus far, the CFA has had few opportunities to review actual convictions for national security offenses. One missed opportunity was the case of Tong Ying Kit, the first person to be convicted under the NSL. On 1 July 2020, less than 24 hours after the NSL came into force, Tong drove his motorcycle through the streets of Hong Kong flying a banner that stated: “Liberate Hong Kong. Revolution of our Times” (a slogan that was common at that time). He refused to stop at police barricades and ultimately collided with a group of policemen. He was charged with “terrorist activities” and “incitement to secession”Footnote ¹³⁸ under the NSL, denied bail, and also denied a jury trial. He was convicted of both offenses by three specially designated national security judges and sentenced to nine years. The trial court’s judgment never mentioned freedom of expression and made no attempt to use the ICCPR when interpreting the new offense of “incitement to secession”.Footnote ¹³⁹ Unfortunately, Tong mysteriously withdrew his appeal, apparently without consulting his lawyer.Footnote ¹⁴⁰

However, appeals from other convictions in security-related cases are gradually making their way to the CFA. In March of 2025, the CFA issued two notable judgments. In the most important of these two cases the CFA unanimously quashed the convictions of Chow Hang Tung (who had served as the Vice-Chairperson of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKA)) and two of HKA’s committee members. The defendants were convicted by a Magistrate of failing to comply with notices served by the Commissioner of Police (CP), an offense provided under the Implementation Rules of the NSL (which are adopted by the Committee for Safeguarding National Security).Footnote ¹⁴¹ The notices claimed that HKA was a “foreign agent” and demanded extensive documentation, including information about members and staff, and the minutes of meetings. The defendants had responded by stating, in an open letter, that they were not foreign agents and would challenge the legality of the notices. The CFA held that the appellants could challenge the validity of the notices as part of their criminal defense, overruling the determination by the judge in the CFI (who heard the appeal from the conviction) that such challenges would constitute an impermissible collateral attack.Footnote ¹⁴² It also held that the lower courts had erred by holding that it was sufficient for the CP to assert that he had “reasonable grounds” to believe that HKA was a foreign agent. Rather, the government had the burden of proving that HKA was a foreign agent, as an element of the offense.Footnote ¹⁴³ The CFA further stated that the prosecution had disabled itself from establishing that point by heavily redacting the only documents that were introduced to prove that HKA was a foreign agent.Footnote ¹⁴⁴ The lower court had upheld the prosecution’s claim that non-disclosure was necessary for an important public interest (the protection of national security). But this did not eliminate the duty to consider whether non-disclosure of the redacted facts would deprive the defendants of the right to fair trial.Footnote ¹⁴⁵ In this case, the redactions deprived the appellants of all information relevant to the government’s claim that HKA was a foreign agent.Footnote ¹⁴⁶ Thus, their “convictions involved a miscarriage of justice and would in any event not have been permitted to stand”.Footnote ¹⁴⁷

Granted, this case involved a fairly minor offense (and Chow Hang Tung is still in prison due to other convictions). However, the CFA’s judgment is the most positive one to be issued in a security-related case and it established an important principle: a defendant simply cannot be denied access to information or material that could enable her to prove her innocence or raise a reasonable doubt as to her guilt. In those situations, the prosecution must make a choice: either make the disclosure and proceed with trial or withhold disclosure and discontinue the prosecution.Footnote ¹⁴⁸ The CFA also cited English case law and made it clear that common law principles of a fair trial still apply, at least if there is no express legislation to the contrary. It also affirmed that the ICCPR has constitutional status in Hong Kong’s legal system and that the NSL preserves ICCPR-protected rights.

Of course, Beijing could override the CFA’s judgment on the right to fair trial by having the NCP Standing Committee issue a contrary interpretation. But it is interesting that a member of the Hong Kong Executive Council published, in China Daily, an opinion piece that described the CFA’s judgment in a positive light, as demonstrating that the right to fair trial is still being protected in Hong Kong.Footnote ¹⁴⁹ That may indicate that the central and local governments are willing to tolerate this judgment, at least for now.

In any event, the Hong Kong government was, no doubt, pleased by the other judgment that the CFA issued on 6 March 2025. It rejected the appeal of Tam Tak Chi from his conviction for “uttering seditious words”, which was governed at the time by Hong Kong’s colonial-era law of sedition. (The law was dormant for decades but the government began enforcing it again as part of the security crackdown.) In particular, the CFA held that there was no need for the prosecution to prove that the defendant intended to incite third parties to violence or public disorder.Footnote ¹⁵⁰ By the time the CFA heard the appeal, the legislation at issue had already been replaced by the 2024 legislation to implement Article 23.Footnote ¹⁵¹ But the judgment still matters because it provides an indication of how the CFA will approach appeals from convictions under the new law of sedition. It appears that the CFA largely accepts the government’s broad view of what constitutes national security. Indeed, this approach was already discernible in 2024, when the Appeals Committee held that Tam Tak Chi’s third point on appeal (which sought to argue that the offenses would be unconstitutionally invalid if they did not require proof of an intention to incite third parties to violence or public disorder) was not reasonably arguable.Footnote ¹⁵² What is particularly striking about that decision is that the Appeals Committee actually quoted from the SNSO’s definition of national security (although the SNSO was enacted in 2024, after Tam Tak Chi committed his alleged offenses).Footnote ¹⁵³ This new statutory definition goes well beyond the political or territorial integrity of China and includes the much broader concepts of unity, the welfare of the people, sustainable economic and social development, and other major interests of the state.Footnote ¹⁵⁴ In future cases, this broad definition of national security would enable the CFA to claim that it is still applying the traditional proportionality analysis while actually departing from the views of the UN Human Rights Committee on what restrictions can be justified under Article 19(3) of the ICCPR.

Over time, more appeals will eventually work their way to the CFA because the Hong Kong government has been enforcing the NSL with great enthusiasm. A particularly striking example was its decision to prosecute 47 pro-democracy politicians with “conspiracy to commit subversion” for what would be considered ordinary politics in a democratic system. The defendants were accused of organizing or participating in a political primary, with the goal of maximizing their political power in the Legislative Council and then using that power (e.g. by threatening to veto government budgets) to compel the government to implement democracy reforms and other demands of the 2019 protest movement. Most of the defendants were denied bail and held in pre-trial detention for more than three years. Eventually, 31 of the defendants decided to plead guilty (perhaps because the government had a perfect conviction rate at the time and a guilty plea could lead to a shorter sentence). Of the 16 defendants who maintained their not guilty pleas, only two were acquitted (the first acquittals under the NSL) and 14 were convicted.Footnote ¹⁵⁵ The Court of Appeal is expected to rule on the pending appeals (by 12 of the defendants) by April of 2026.Footnote ¹⁵⁶ The other major pending case is that of Jimmy Lai (the former publisher of Apple Daily newspaper). As of this writing, Lai had spent close to five years in custody and is still on trial.Footnote ¹⁵⁷ The trial court will hear closing arguments in August of 2025 but the verdict is unlikely to be issued until 2026.

Thus far, all prosecutions for NSL offenses have occurred in Hong Kong. However, under Article 55 of the NSL, the central authorities can take jurisdiction over a case in three situations: (1) the case is “complex” due to the involvement of a foreign country or external elements; (2) a serious situation occurs where the Hong Kong government is unable to effectively enforce the law; or (3) a major and imminent threat to national security has occurred. The procedures for shifting jurisdiction are shockingly simple: the Central Government only needs to approve a request from Hong Kong’s Chief Executive (who is appointed by Beijing and increasingly seen as a mere figurehead). There does not appear to be any procedure (such as an extradition hearing) which would allow an individual to challenge the Chief Executive’s decision to request that a case be transferred to the central authorities.

After the NSL was imposed in Hong Kong, the British government accused Beijing of violating the Joint DeclarationFootnote ¹⁵⁸ and many governments stopped treating Hong Kong as a separate jurisdiction for the purposes of trade, extradition and other agreements.Footnote ¹⁵⁹ At least ten nations have suspended their Surrender of Fugitive Offender Agreements and/or Mutual Legal Assistance Agreements with the Hong Kong Special Administrative Region.Footnote ¹⁶⁰ This is understandable given the enormous changes to Hong Kong’s criminal justice system. However, some of the responses from foreign governments were arguably unfair to the people of Hong Kong.Footnote ¹⁶¹ A good example is the Trump administration’s determination that goods imported to the United States from Hong Kong must be labelled “made in China” rather than “made in Hong Kong”, which generated a predictable dispute in the WTO.Footnote ¹⁶² In this author’s view, proposals to sanction Hong Kong judges are also likely to be counterproductive.Footnote ¹⁶³ Despite the enormous impact of the NSL, the right to fair trial is still better protected in Hong Kong than in Mainland China. That is largely because of the quality and independence of Hong Kong judges and lawyers. Indeed, many solicitors and barristers are working hard on behalf of defendants, in the hope that they may be able to at least mitigate the impact of the new security laws.

Perhaps the most striking example is the advocacy by Chow Hang Tung, a well-known barrister and human rights activist.Footnote ¹⁶⁴ Although in jail, she has continued to advocate for the right to fair trial and has also secured some important victories. In addition to the CFA’s judgment of March 2025 overturning the convictions of Chow and her two colleagues (discussed above), she also successfully applied for judicial review of a magistrate’s refusal of her request to lift the reporting restrictions for her committal proceedings.Footnote ¹⁶⁵ To a large extent, the judgment relied upon the plain meaning of section 87A(2) of the Magistrate’s Ordinance, which simply does not give a magistrate the discretion to refuse to lift reporting restrictions when the accused has made the request.Footnote ¹⁶⁶ But the judge also cited the right to fair trial, the common law principles of open justice, and the freedom of the press. As he observed, these principles are protected by the ICCPR and the Hong Kong BRO, which were not displaced by the NSL.Footnote ¹⁶⁷ Decisions like these demonstrate the risks of proposals to sanction Hong Kong judges, as they may cause some good judges to simply resign. This would not stop the security crackdown in Hong Kong and it might make the situation of individual defendants even worse.

Moreover, the Hong Kong judiciary (including the CFA) is still issuing judgments that embrace international human rights norms and improve the lives of vulnerable citizens, albeit in areas of law that do not particularly concern Beijing. The next section of the article demonstrates this in the context of gender equality and the rights of gay and transgender residents of Hong Kong.

IV. Gender equality and the rights of gay and transgender residents

When the UK ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),Footnote ¹⁶⁸ it decided not to apply the treaty to Hong Kong. This was almost certainly because there were many discriminatory laws and policies in the colony at that time, including a prohibition on female inheritance of land in the New Territories (a remnant of Chinese customary law).Footnote ¹⁶⁹ The appointed colonial government had no interest in reforming these laws; nor did it wish to enact anti-discrimination legislation that would apply to the private sector, given its longstanding commitment to free-market policies.

However, the women’s movement gained leverage in the early 1990s, partly due to the BRO but also because limited democracy reforms were introduced in preparation for 1997. In December 1992, Emily Lau (one of the first directly elected legislators) introduced a resolution calling for CEDAW to be extended to Hong Kong, which passed overwhelmingly.Footnote ¹⁷⁰ Although this motion was not binding, it compelled the government to start a public consultation process, which eventually showed strong support for CEDAW. Meanwhile, another female legislator, Anna Wu, introduced the first anti-discrimination legislation, which led to the enactment of a compromise bill, the Sex Discrimination Ordinance (SDO). These developments helped to clear the way for CEDAW, which was applied to Hong Kong in 1996. Although China is also a party to CEDAW, Hong Kong produces its own report and receives a separate set of Concluding Observations from the CEDAW Committee.

The CEDAW reporting process has generated a number of reforms and the CFI has used CEDAW as a guide to interpreting the SDO.Footnote ¹⁷¹ However, the right to gender equality is still undeveloped in Hong Kong, partly because some of the most controversial policies were carefully protected from litigation.Footnote ¹⁷² For example, the Small House Policy is protected by express exemptions in the SDO, by reservations to CEDAW, and by Article 40 of the Hong Kong Basic Law; these provisions were enforced by the CFA when the Small House Policy was challenged.Footnote ¹⁷³

On the other hand, the ICCPR has played a very important role in redressing discrimination against gay and transgender residents of Hong Kong. This process started in the early 1990s when the Hong Kong government introduced legislation to decriminalize male-to-male sexual relations. Although many legislators did not want to decriminalize, the colonial government persuaded them to do so, partly by pointing out that the existing laws would conflict with the right to privacy in the ICCPR, which was about to be incorporated through the BRO.Footnote ¹⁷⁴ In order to make the idea more acceptable to local legislators, the colonial government initially put forth a legislative package that included a higher age of consent for anal intercourse than for vaginal intercourse. But that law was successfully challenged in Leung TC William Roy v. Secretary for Justice Footnote ¹⁷⁵ (Leung). The CFI cited the ICCPR, the UN Human Rights Committee,Footnote ¹⁷⁶ and other international and comparative jurisprudence. The Court of Appeal rejected the government’s appeal and confirmed that the ICCPR prohibits discrimination on the ground of sexual orientation because it falls within “other status” in Articles 2 and 26 of the ICCPR.Footnote ¹⁷⁷ The Court of Appeal also noted that courts should not simply defer to the legislature when a criminal law discriminates on the ground of sexuality. Rather, judges should intensely scrutinize the legislature’s purported justification for unequal treatment and “protect minorities from the excesses of the majority”.Footnote ¹⁷⁸

In 2007, Hong Kong’s CFA took a similar approach in Secretary for Justice v. Yau Yuk Lung, Footnote ¹⁷⁹ which challenged the offense of “buggery” with another man otherwise than in private. The CFA agreed with the lower courts that the statute was unconstitutional under both Article 25 of the Basic Law and Article 22 of the BRO (equivalent to Article 26 of the ICCPR). The CFA also endorsed the approach taken in Leung, noting that gay men constitute a minority and that the courts should scrutinize “with intensity” whether a difference in legal treatment was justified.

The CFA has also gradually expanded the rights of same-sex couples. For example, in 2018, in QT v. Director of Immigration, it held that the Hong Kong Immigration Department could not limit spousal dependent visas to expatriates in heterosexual marriages.Footnote ¹⁸⁰ The CFA did not have to rely on its powers of constitutional review in this case, as the Immigration Department’s policy was found to be both irrational and unreasonable in the Wednesbury sense.Footnote ¹⁸¹ Nonetheless, it cited the European Court of Human Rights and other foreign sources, noting the “convergence in the approaches of various courts, including our own, to what constitutes discrimination, influenced by international human rights instruments”.Footnote ¹⁸² Similarly, in 2019, the CFA held that it was unconstitutional for the Civil Service to deny spousal benefits to same-sex couples who were married overseas and for the Inland Revenue Department to prohibit same-sex couples from filing joint tax returns.Footnote ¹⁸³

Thus far, the CFA has not recognized a constitutional right to same-sex marriage. Here the CFA’s frequent reliance on the Human Rights Committee’s interpretations of the ICCPR appears to have slowed progress in Hong Kong. The Human Rights Committee has not interpreted the ICCPR as requiring a right to same-sex marriage because it views Article 23 as controlling the issue.Footnote ¹⁸⁴ In Sham Tsz Kit v. Secretary for Justice,Footnote ¹⁸⁵ the CFA took a similar approach. It applied the doctrine of lex specialis and held that the right to marry in Hong Kong is limited to opposite-sex couples, due to the language in Article 37 of the Basic Law and Article 19 of the BRO (Article 23 of the ICCPR). However, the CFA granted a declaration that the local government is in breach of a positive obligation under Article 14 of the BRO (Article 17 of the ICCPR) to establish an alternative framework for legal recognition of same-sex partnerships (such as a registered civil partnership or civil union). The CFA suspended its declaration for a period of two years to give the government time to comply with its obligations. In July of 2025, the Hong Kong government responded by introducing the “Registration of Same-Sex Partnerships Bill”.Footnote ¹⁸⁶ If enacted, it will permit a same-sex couple who has already entered into a marriage or civil partnership in a foreign jurisdiction to register that partnership in Hong Kong and obtain a specified range of legal benefits. While the bill reflects a rather narrow reading of the CFA’s judgment, it would represent progress and LGBT groups are actively supporting it.Footnote ¹⁸⁷ If it is not enacted (due to opposition from some very conservative legislators in the new “patriots only” Legislative Council) then the government may ask the CFA to revise its original order and give it additional time to comply.Footnote ¹⁸⁸ However, if the government fails to provide an alternative form of legal recognition that complies with the CFA’s judgement then Sham Tsz Kit will also have the right to seek further remedies from the CFA, without the need to begin a new action for judicial review.Footnote ¹⁸⁹

Meanwhile, the lower courts continued to issue decisions to alleviate the practical disadvantages of not being able to marry. For some reason, the Hong Kong government also continued to appeal these judgements, although it was clear that they would fail in the CFA. For example, in October 2024, the CFA rejected the government’s appeals from lower court decisions holding that it was unlawful to exclude same-sex couples married overseas from equal access to public housing and also unlawful to exclude spouses in same-sex marriages conducted in foreign countries from their legal entitlements and benefits under the intestacy and inheritance laws of Hong Kong.Footnote ¹⁹⁰

The CFA has also issued a number of decisions advancing the rights of transgender individuals. For example, in W v. Registrar of Marriages,Footnote ¹⁹¹ it upheld the right of a transgender woman who had completed gender-affirmation surgery to marry in her acquired gender. The CFA applied Article 37 of the Basic Law and Article 19(2) of the BRO (equivalent to Article 23(2) of the ICCPR) and determined that it is unconstitutional to exclude a post-operative “male-female transsexual” when interpreting and applying Hong Kong’s marriage laws.

Similarly, in Q v. Commissioner of Registration, the CFA applied the right to privacy (protected by Article 14 of the BRO, equivalent to Article 17 of the ICCPR) to hold that the government could not refuse to change the gender markers on the identity cards of two transgender men simply because they had not undergone certain surgery (including the removal and construction of sex organs).Footnote ¹⁹² The CFA issued orders quashing the government’s decision to refuse to alter the gender markers and a declaration that the government’s policy guidelines violated the constitutional right to privacy. The Hong Kong government was initially very slow to revise its guidelines, leading to another legal challenge in March 2024; two weeks later, the government announced that it had revised its policy.Footnote ¹⁹³ While this policy is also imperfect, there is a good chance that it will be further refined after a new action for judicial review.

The CFA’s recent decisions advancing the rights of LGBT residents demonstrate that in cases that are not security-related it is still willing to rule against the government and enforce rights protected under the BRO and the ICCPR. The next section of the article explores another field of law in which the CFA has relied upon international law to compel the local government to change its policies.

V. Protection against refoulement

The Refugee Convention and its 1967 Protocol have never applied to Hong Kong (despite the fact that they were ratified by the UK and by China). For many years, the Hong Kong government refused to screen asylum seekers although it would allow them to stay in the territory as “overstayers” while they were being screened by the Office of the United Nations High Commissioner for Refugees (UNHCR). Because the UNHCR does not give reasons for its decisions, there was no way for an applicant to challenge a negative decision by the UNHCR.Footnote ¹⁹⁴

The first important case in this field to reach the CFA was Prabakar v. Secretary for Security Footnote ¹⁹⁵ (Prabakar). Immigration officials detained Mr Prabakar after determining (in the transit area of the Hong Kong airport) that he was holding a forged Canadian passport. While in detention, he wrote a letter to the UNHCR and the Immigration Department, alleging that he had suffered torture in Sri Lanka and would be subjected to torture again if deported. Nonetheless, the Secretary for Security signed a deportation order, relying on the fact that the UNHCR had decided not to recognize Mr Prabakar as a refugee.

Article 3 of CAT had not been expressly incorporated into Hong Kong’s domestic legal system. But the CFA noted that the Hong Kong government’s stated policy (according to a periodic report that it had submitted to the UN Committee Against Torture) was not to deport a person with a well-founded fear of torture. The CFA held that this policy must be implemented with a high standard of fairness, which could not possibly be met by merely following the UNHCR’s unexplained rejection of refugee status.Footnote ¹⁹⁶ This holding led the government to establish its own screening mechanism for torture claimants. In 2012, the CFA further held that the Hong Kong government must also independently assess claims by persons who allege that they will be subjected to cruel, inhuman or degrading treatment or punishment.Footnote ¹⁹⁷

In 2013, the CFA went further and decided that the government also had a responsibility to screen non-refoulement claims under the Refugee Convention, despite the fact that Hong Kong has never been bound by the Refugee Convention.Footnote ¹⁹⁸ The appellants (and also the UNHCR, which intervened in the case) argued that the principle of non-refoulement is now a rule of customary international law. However, the CFA offered no views on that issue. Instead, it took an approach that was similar to that used in Prabakar: the CFA determined that it was the practice of Hong Kong’s Director of Immigration to have regard to whether an asylum seeker’s claim is based on a well-founded fear of persecution when deciding whether to use his power under the Immigration Ordinance to remove the asylum seeker. The government tried to distinguish Prabakar because it dealt with claims under CAT, which applied to Hong Kong. However, the CFA held that this distinction was immaterial because Article 3 of CAT had not been incorporated into domestic legislation. Thus, Prabakar had been decided on the basis of the government’s stated policy, which the CFA viewed as indistinguishable from the “practice” of taking into account whether an asylum seeker’s claim was well founded. The CFA thus held that the Director must make a determination as to whether the claim was well-founded and apply a high standard of fairness, having regard to the gravity of the consequences of the determination.

As a result of these decisions, the government was compelled to create a unified screening system (USM), which is now used for claimants under CAT and asylum seekers under the Refugee Convention. The USM has not changed the government’s firm policy of not recognizing anyone as a refugee under the Refugee Convention.Footnote ¹⁹⁹ Thus, if a person’s non-refoulement claim is substantiated under the USM on grounds of persecution then the government will refer that case to the UNHCR for recognition as a refugee and resettlement to a safe third country.

There are still many problems with the Hong Kong government’s treatment of asylum seekers and torture claimants, including restrictions on their ability to work and flaws in the USM itself. These problems are particularly significant in light of the credible argument that the duty of non-refoulement is now a rule of customary international law. However, the process does allow for appealsFootnote ²⁰⁰ and the possibility of judicial review when it does not meet the high standard of fairness required by the CFA.Footnote ²⁰¹

VI. Conclusion

In 2007, I described the ICCPR as Hong Kong’s “gold standard”, not only because the courts were enforcing it but because the government also regularly acknowledged its binding force.Footnote ²⁰² Interestingly, local government officials still like to emphasize the ICCPR’s status in Hong Kong, particularly when they are marketing the city as a good place to do business.Footnote ²⁰³ But the local government has also fully embraced Beijing’s broad definition of “national security” and regularly uses it to justify very broad restrictions on ICCPR-protected rights, including the freedoms of expression, association, and assembly and the right to fair trial. Thus far, Hong Kong courts have not done much to counter this view. Indeed, it appears that the CFA has decided to embrace the government’s very broad definition of “national security”. While this makes it easier for the CFA to avoid clashing with Beijing, it also means that the CFA’s jurisprudence will likely be cited by the Hong Kong government to support its position that the new restrictions on civil liberties are “necessary” to protect national security. It may also be cited by other authoritarian governments who hope to undermine the UN Human Rights Committee’s much narrower interpretation of the “legitimate aim” of protecting national security.Footnote ²⁰⁴ While this is disappointing, it is also understandable, given Beijing’s extensive powers and the many restrictions that the NSL has placed on Hong Kong’s judiciary.Footnote ²⁰⁵ In essence, the NSL has created a separate criminal justice system for political offences, one that is largely insulated from judicial review and ensures punishment for political opponents of the Chinese Communist Party. Thus, while the “shadow of Beijing” has been present since the handover in 1997, it has become far more prominent in post-2020 Hong Kong. Perhaps it is simply not possible for a small territory to preserve a high degree of civil liberties inside such a large and powerful authoritarian nation.Footnote ²⁰⁶

Nonetheless, Beijing’s shadow has not cast darkness on all areas of law in Hong Kong. The Hong Kong judiciary still has room to develop human rights and to apply international and comparative jurisprudence in a meaningful manner. This is particularly evident in the jurisprudence advancing the rights of the LGBT community and, to some extent, in the decisions compelling the government to create a USM for asylum seekers and individuals who could be subjected to torture if deported. Eventually, the CFA may be able to apply the ICCPR in a manner that at least mitigates the negative effects of the NSL and the SNSO.Footnote ²⁰⁷ In this regard, the CFA’s March 2025 judgment on the right to fair trial is encouraging.

The CFA could do more to protect the rights of vulnerable groups in Hong Kong, including migrant workers, asylum seekers, persons living with disabilities,Footnote ²⁰⁸ and the many Hong Kong residents who live in poverty.Footnote ²⁰⁹ Although Hong Kong has traditionally prioritized civil liberties, Article 39 of the Basic Law refers to the ICESCR in precisely the same language as the ICCPR. Unfortunately, there is no single Hong Kong ordinance incorporating the ICESCR and the CFA has described Article 39 of the Basic Law as “declaratory” of the dualist principle.Footnote ²¹⁰ This holding appears to preclude any argument that Article 39 was sufficient to incorporate the ICESCR into domestic law and to give it constitutional status. Hong Kong courts have also been rather reluctant to hold that other laws (such as the Employment Ordinance) have incorporated specific articles in the ICESCR.Footnote ²¹¹ Nevertheless, there is no reason why the courts cannot use the ICESCR as a guide to interpreting relevant provisions in the Basic Law, such as Article 36 (right to social welfare)Footnote ²¹² and the many ordinances that the Hong Kong government cites when it drafts its periodic reports to the UN Committee on Economic, Social and Cultural Rights.Footnote ²¹³

Indeed, there has been a steady increase in income inequality in Hong Kong since 1997Footnote ²¹⁴ and at least some commentators argued that economic pressures and a lack of upward mobility contributed to the sustained protests of 2019.Footnote ²¹⁵ This is, therefore, an opportune time to dispel the myth that socio-economic rights are “aspirational” and not suitable for judicial enforcement. Better enforcement of the ICESCR might also help to rebuild public confidence, not only in the role of international law in Hong Kong’s legal system but also in the future of one of the world’s great cities.