The NSL was adopted by the NPCSC on 30 June 2020 on the basis of the “Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the HKSAR” adopted on 28 May 2020 (“NPC 5.28 Decision”)².

The NSL was added to the list of national laws in Annex III to the Basic Law on 30 June 2020 pursuant to BL 18 and the “Decision of the NPCSC on Adding a Law to the List of National Laws in Annex III to the Basic Law of the HKSAR of the PRC” adopted on the same day³.

The NSL was promulgated in the HKSAR by the Promulgation of National Law 2020 (L.N. 136 of 2020)⁴. It applies in the HKSAR as from 11:00 pm on 30 June 2020.

The legislative history of the NSL is set out in the Introduction.

The related background materials (including: (a) the Explanation on the “Draft Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the HKSAR” of 22 May 2020; (b) the Explanation on the “Draft Law of the PRC on Safeguarding National Security in the HKSAR” of 18 June 2020; and (c) the Explanation on the “Draft Decision of the NPCSC on Adding a Law to the List of National Laws in Annex III to the Basic Law of the HKSAR of the PRC” of 30 June 2020) are collected in Articles and Reference Materials on the Law of the PRC on Safeguarding National Security in the HKSAR (中華人民共和國香港特別行政區維護國家安全法：文獻匯編)⁵ published by the Department of Justice and the Security Bureau in 2021.

As a national law applied to the HKSAR, the NSL has a special constitutional status focusing specifically on safeguarding national security and preventing and suppressing acts endangering national security in the HKSAR. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 37 (Case Summary))

The NPC 5.28 Decision was made pursuant to Arts. 31, 62(2), 62(14) and 62(16) of the Constitution⁶ and the relevant provisions of the Basic Law for the purposes of safeguarding national sovereignty, security and development interests, upholding and improving the “One Country, Two Systems” regime, safeguarding the long-term prosperity and stability of Hong Kong, and protecting the lawful rights and interests of Hong Kong residents.

The Explanation on the Draft Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security of 22 May 2020 (“Explanation on the Draft NPC Decision”)⁷ states that under the new situations, the overall requirements of the establishment and improvement of the legal system and enforcement mechanisms for safeguarding national security in the HKSAR at the national level are: (a) to thoroughly implement the holistic approach to national security⁸; (b) to uphold and improve the “One Country, Two Systems” regime; (c) to organically reconcile the preservation of the comprehensive jurisdiction of the Central Authorities over the HKSAR with the protection of the HKSAR’s high degree of autonomy; (d) to strengthen the establishment of systems for safeguarding national security and law enforcement; (e) to resolutely safeguard national sovereignty, security and development interests; (f) to safeguard the long-term prosperity and stability of Hong Kong; (g) to ensure that the “One Country, Two Systems” policy would not be changed or undermined; and (h) to ensure that the practice of “One Country, Two Systems” would not be bent or distorted.

According to the Explanation on the Draft NPC Decision, for the implementation of the above overall requirements, the following five basic principles must be followed:

As discussed by the court in HKSAR v Lui Sai Yu [2022] HKCA 1780, at para. 51 (Case Summary) , the above basic principles are contained and reflected in NSL 1.

Regarding the Constitution and the Basic Law both expressly referred to in NSL 1, they jointly constitute the constitutional order in the HKSAR. The constitutional order of the HKSAR established by the Constitution and the Basic Law must be resolutely upheld. The HKSAR must be administered in strict accordance with the Constitution and the Basic Law. The authority of the rule of law must be firmly established and resolutely upheld. Any person who contravenes the law or undermines the rule of law must be held liable in accordance with the law. (Explanation on the Draft NPC Decision, 22.5.2020, basic principle 3)

The “One Country” is the premise and basis of the “Two Systems”; the “Two Systems” is subordinate to and derived from “One Country”⁹. The policy of “One Country, Two Systems” under which Hong Kong people administer Hong Kong with a high degree of autonomy must be implemented resolutely, fully and faithfully. The correct direction of the “One Country, Two Systems” policy must be accurately understood. The institutional advantages of “One Country, Two Systems” must be fully developed. The system and mechanisms of the HKSAR for the implementation of the Constitution and the Basic Law must be improved. (Explanation on the Draft NPC Decision, 22.5.2020, basic principle 2)

The Central Authorities have comprehensive jurisdiction over the HKSAR under the Constitution, the Basic Law and the relevant laws. The high degree of autonomy enjoyed by the HKSAR is derived from the authorization by the Central Authorities. The NPCSC enacting the NSL [NSL 1] and deciding to list it in Annex III to the Basic Law, and the CPG establishing in the HKSAR an office for safeguarding national security [NSL 48(1)], which may exercise jurisdiction over cases concerning offences endangering national security under the NSL in specified circumstances [NSL 55], are important manifestations of the comprehensive jurisdiction of the Central Authorities. Concurrently, the executive authorities, legislature and judiciary of the HKSAR perform the duty to safeguard national security in accordance with the law [NSL 3(2) and (3) and NSL 8], the Committee for Safeguarding National Security of the HKSAR assumes primary responsibility for safeguarding national security [NSL 12], and the law enforcement and judicial authorities of the HKSAR exercise jurisdiction over the overwhelming majority of cases concerning offences endangering national security [NSL 40], are concrete manifestations of the HKSAR’s high degree of autonomy. These provisions bring together organically the comprehensive jurisdiction and the high degree of autonomy, both of which come under the practice of “One Country, Two Systems”. (Speech delivered by the Chairman of the NPCSC on 30 June 2020)¹⁰

Safeguarding national security is the prerequisite for guaranteeing the long-term peace and stability of the country and the long-term prosperity and stability of Hong Kong. It is the common responsibility of all the people of China, including the people of Hong Kong, and the collective duty of the country and the HKSAR. All activities that endanger the security of national sovereignty, challenge the power of the Central Authorities and the authority of the Basic Law, or use Hong Kong to carry out infiltration or sabotage against the Mainland, are activities that cross the red line, and are absolutely impermissible. (Explanation on the Draft NPC Decision, 22.5.2020, basic principle 1)

The affairs of the HKSAR are the internal affairs of the PRC. They must not be interfered with by any external elements. Any interference by any means in Hong Kong’s affairs by a foreign country, a foreign organisation or a foreigner must be firmly objected to. Any interference in Hong Kong’s affairs and any acts of secession, subversion, infiltration and sabotage by external elements must be firmly prevented and suppressed. (Explanation on the Draft NPC Decision, 22.5.2020, basic principle 4)

Safeguarding national security is fundamentally consistent with respecting and protecting human rights. The purpose of effectively preventing, suppressing and punishing the tiny number of offences endangering national security in accordance with the law is to better protect the lives and property of the overwhelming majority of Hong Kong residents as well as to better protect fundamental rights and freedoms. Any work or law enforcement for safeguarding national security must be carried out in strict compliance with the legal requirements, in accordance with statutory functions, and in observance of statutory procedures. The lawful rights and interests of Hong Kong residents, legal persons and other organizations shall not be violated. (Explanation on the Draft NPC Decision, 22.5.2020, basic principle 5)

The promulgation of the NSL as a law of the HKSAR was done in accordance with BL 18(2) and (3) on the footing that safeguarding national security is a matter outside the limits of the HKSAR’s autonomy and within the purview of the Central Authorities, and the CPG has an overarching responsibility for national security affairs relating to the HKSAR. In the light of Ng Ka Ling v Director of Immigration (No. 2) (1999) 2 HKCFAR 141, the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to constitutional review by the CFA on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 32, 37 and 70(a) (Case Summary))

Under NSL 65, the power of interpretation of the NSL shall be vested in the NPCSC. At the same time, NSL 40 provides for the HKSAR courts’ jurisdiction over cases concerning offences under the NSL except under the circumstances specified in NSL 55, and NSL 45 further provides that unless otherwise provided by the NSL, the HKSAR courts shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of HKSAR. In the circumstances, and in line with the principle of “One Country, Two Systems”, the HKSAR courts have assumed and exercised jurisdiction over cases concerning offences under the NSL, and have accumulated useful jurisprudence to assist in the understanding and application of various provisions in the NSL.

The approach of the HKSAR courts to the construction of the NSL has been authoritatively laid down by the CFA in HKSAR v Lai Chee Ying [2021] HKCFA 3 (Case Summary) which provided a comprehensive review of the legislative history of the NSL. The CFA laid down the approach of adopting a purposive and contextual construction to an NSL provision in its application to the HKSAR by examining the matrix in which it existed, consisting of the relevant provisions of the Basic Law and the NSL, the applicable corpus of local laws including human rights and rule of law principles, the statutory norms and the common law rules, with a view to ascertaining how it was intended to operate in that context. (Lai Chee Ying v Commissioner of Police [2022] HKCA 1574, para. 13 (Case Summary), citing HKSAR v Lai Chee Ying [2021] HKCFA 3 above) The articles in the NSL had to be read as a coherent whole, taking into account the constitutional basis upon which it was applied to Hong Kong. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 39 (Case Summary) ; Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 45 (Case Summary) )

One of the working principles adopted in drafting the NSL was stated to be accommodating the differences between Mainland China and the HKSAR and striving to address the “convergence, compatibility and complementarity” between the NSL, and the relevant national laws and local laws of the HKSAR¹¹. While the NSL is intended to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws, NSL 62 provides for how to deal with possible inconsistencies, giving priority to NSL provisions in such cases. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 18 and 29 (Case Summary))

Given the special status of the NSL as a national law applied under BL 18 and the express reference in NSL 1 to the NPC 5.28 Decision, regard might properly be had to the Explanations and Decisions made in proceedings of the NPC and NPCSC regarding promulgation of the NSL as a law of the HKSAR as extrinsic materials relevant to the consideration of the context and purpose of the NSL. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 11 (Case Summary)) Cf. HKSAR v Lui Sai Yu [2023] HKCFA 26, paras. 43-48 (Case Summary)

The court held that as far as Hong Kong courts were concerned, the common law approach should continue to be adopted in the construction of the NSL. If the Basic Law, which was right at the interface of “One Country, Two Systems”, was to be construed using the common law approach, there was no valid basis to adopt any other approach in the construction of the NSL. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, para. 49 (Case Summary))

The preamble to the Basic Law declares that the HKSAR is established in accordance with the provisions of Art. 31 of the Constitution to uphold national unity and territorial integrity and to maintain the prosperity and stability of Hong Kong. BL 1 provides that the HKSAR is an inalienable part of the PRC. BL 12 provides that the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the CPG.

NSL 2 refers to BL 1 and 12 as the lynchpin for safeguarding national security in the HKSAR. These articles are essential to upholding national unity and territorial integrity. In so prescribing the constitutional order of the HKSAR, they underscore the general constitutional duty of the Region to safeguard national security. (Lai Chee Ying v Secretary for Justice [2023] HKCFI 1382, para. 28 (Case Summary))

The effect of NSL 2 is that when anyone exercises his rights and freedoms, he cannot refuse to recognise the HKSAR being an inalienable part of the PRC, or that the HKSAR enjoys only a high degree of autonomy rather than complete autonomy. (HKSAR v Lai Man Ling and Others [2022] HKDC 981, para. 107 (Case Summary))

Safeguarding national security being a matter falling within the remit of the Central Authorities, the CPG has an overarching responsibility for national security affairs relating to the HKSAR. (Explanation on the Draft Decision of the NPCSC on Adding a Law to the List of National Laws in Annex III to the Basic Law of the HKSAR of the PRC, 30 June 2020, 6^th paragraph: see footnote 3 in [1.1] above)

Pursuant to NSL 3, the CPG deals with national security affairs at the national level while the HKSAR deals with the same at the local level. The respective roles of the CPG and the HKSAR ensure that the Region works in tandem with the CPG in safeguarding national security. (Lai Chee Ying v Secretary for Justice [2023] HKCFI 1382, para. 31 (Case Summary))

Since the HKSAR is part and parcel of the PRC, safeguarding national security in the HKSAR must be a component of the overall national security framework of the PRC, which must be a matter outside the limits of the HKSAR’s autonomy but within the purview of the Central Authorities. In other words, there is nothing called defending against “national security risk of Hong Kong”, but we should defend against “national security risk in the HKSAR”. (HKSAR v Lai Man Ling and Others [2022] HKDC 981, para. 60 (Case Summary))

Art. 3 of the NPC 5.28 Decision provides that the HKSAR has a constitutional duty to safeguard national sovereignty, unity and territorial integrity.

The fact that the HKSAR is under a constitutional responsibility to safeguard national security in the HKSAR is not inconsistent with the CPG having the responsibility for safeguarding national security in the Region under the Basic Law. (HKSAR v Lai Man Ling and Others [2022] HKDC 981, para. 60 (Case Summary))

The courts of the HKSAR are fully committed to safeguarding national security and to acting effectively to prevent, suppress and impose punishment for any act or activity endangering national security as required by NSL 3. That duty would unfailingly be carried out whenever national security issues are properly raised and duly explored, enabling the courts to undertake a proper adjudication of those issues. (Secretary for Justice v Timothy Wynn Owen, KC [2022] HKCFA 23, para. 33 (Case Summary))

There was a need for the court to give due weight to the views of the law enforcement agencies in matters of national security and related risk assessment. (Lai Chee Ying v Secretary for Security [2021] HKCFI 2804, para. 64 (Case Summary))

Viewed purposively having regard to NSL 3, 8 and 41, the intent of the NSL is plainly for national security to be safeguarded by the complementary application of the laws which it created together with the existing laws of the HKSAR, such as those contained in Part II of the Crimes Ordinance (Cap. 200). (HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, paras. 22-24 (Case Summary))

The imperative in NSL 3(3), 8 and 42(1) on strict and full application of laws to further the prevention, suppression and punishment of offences endangering national security covers not only the NSL but also local laws. (HKSAR v Lui Sai Yu [2022] HKCA 1780, para. 53 (Case Summary)).

NSL 4 stipulates that human rights should be respected and protected in safeguarding national security in the HKSAR. However, freedoms and rights of individuals in a society underpinned by the rule of law are neither infinite nor absolute. Otherwise, their destructive and disruptive force would be self-evident. Neither could the overriding principle of BL 1, i.e. “the [HKSAR] is an inalienable part of the [PRC]”, be neglected or ignored. (HKSAR v Ma Chun Man [2021] HKDC 1325, paras. 46-47 and 65 (Case Summary: ET))

The court held that jurisprudence from the European Court of Human Rights had to be approached with great caution as the NSL was a national law designed to safeguard national security in the local context, in particular the “One Country, Two Systems” policy which is the very foundation of the HKSAR. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 40 (Case Summary))

See also the annotations to NSL 2.

BL 39(1) provides that the provisions of the International Covenant on Civil and Political Rights (“ICCPR”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.

As an important facet of the principle of the rule of law, the principle of legality required that if a statute did not expressly or by necessary implication override or restrict fundamental rights, it would not be construed as doing so. (Lai Chee Ying v Commissioner of Police [2022] HKCA 1574, para. 23 (Case Summary))

Where the NSL refers to “offence[s] endangering national security” without distinguishing between those offences which it creates and other offences of that nature, subject to any contextual or purposive arguments to the contrary in any particular case, it is referring to all such offences without distinction. (HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, para. 27 (Case Summary))

In Tong Ying Kit v HKSAR [2020] HKCFI 2133, the construction of NSL 42(2) was discussed. One of the issues was whether an applicant for bail had to acknowledge that he had already committed acts endangering national security or the judge or magistrate had to form a view that the applicant had committed such acts and that he would not continue to commit them. The court held that it would be wholly illogical to read NSL 42(2) as meaning that the person seeking bail was first required to admit his guilt. Such a construction of NSL 42(2) would be wholly inconsistent with the presumption of innocence expressly recognised in NSL 5. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 29-30 (Case Summary))

Art. 54 of the Constitution provides: “Citizens of the PRC shall have the obligation to safeguard the security, honor and interests of the motherland; they must not behave in any way that endangers the motherland’s security, honor or interests.”

The Public Offices (Candidacy and Taking Up Offices) (Miscellaneous Amendments) Ordinance 2021 (Ord. No. 13 of 2021) seeks to implement the oath-taking requirements for public officers as stipulated in the NPCSC Interpretation of BL 104 (7 November 2016) and NSL 6, thereby fulfilling the HKSAR Government's constitutional responsibility. The Ordinance clearly explains the meaning of a reference to “upholding Basic Law and bearing allegiance to HKSAR”. “Upholding Basic Law and bearing allegiance to HKSAR” is a fundamental obligation and responsibility of public officers. The Ordinance further ensures that public officers understand their constitutional responsibility, and safeguards that only a person who meets the fundamental requirement of “upholding Basic Law and bearing allegiance to HKSAR” could hold the relevant public office in order to ensure “Hong Kong being administered by patriots”¹².

Where the NSL refers to “offence[s] endangering national security” without distinguishing between those offences which it created and other offences of that nature, subject to any contextual or purposive arguments to the contrary in any particular case, it is referring to all such offences without distinction. (HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, para. 27 (Case Summary))

Offences endangering national security under HKSAR law (as opposed to those under the NSL) include the offences of treason, incitement to disaffection and sedition under Parts I and II of the Crimes Ordinance (Cap. 200). (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 53(c)(ii) and footnote 40 (Case Summary))

NSL 40 provides that the HKSAR shall have jurisdiction over cases concerning offences under the NSL, except under the circumstances specified in NSL 55.

NSL 45 provides that unless otherwise provided by the NSL, magistrates’ courts, the District Court, the High Court (comprising the CFI and the CA) and the CFA shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the HKSAR.

NSL 41(1) makes it clear that in respect of offences endangering national security, the NSL and the laws of the HKSAR “shall apply to procedural matters”, including matters related to criminal investigation, prosecution, trial, and execution of penalty.

In HKSAR v Chui Chun Man [2023] HKMagC 3 (Case Summary: ET) , the defendant was charged with doing an act or acts with a seditious intention, contrary to s. 10(1)(a) of the Crimes Ordinance (Cap. 200), and the issue was whether the relevant evidence was admissible. (paras. 1, 17-18 and 26-27) Applying the relevant laws of the HKSAR, the court held that the search did not infringe the defendant’s right to silence or privilege against self-incrimination and allowed the admission of the disputed evidence (paras. 140-142 and 177).

It was held that adding a charge which fell outside the ambit of the NSL (e.g. causing grievous bodily harm by dangerous driving) as an alternative to a count of NSL offence (e.g. terrorist activity) was not an abuse of process where there was a close factual nexus between the two counts. It would be absurd to suggest that simply because the alternative count was not an offence endangering national security, that per se mandated a separate trial for that count. It would also be absurd to suggest that s. 51(1)(b) of the Criminal Procedure Ordinance (Cap. 221) was not applicable merely because the court was a panel of three judges formed under NSL 46¹. (HKSAR v Tong Ying Kit [2021] HKCFI 1644, paras. 10-15 (Case Summary))

In Chow Hang Tung v Secretary for Justice [2022] HKCFI 2225 (Case Summary) where the applicant and three interested parties were prosecuted for one charge of incitement to subversion contrary to NSL 22 and 23, the court considered whether s. 87A(2) of the Magistrates Ordinance (Cap. 227) imposed a mandatory duty on a magistrate to lift the reporting restrictions upon application by an accused pursuant to that subsection.

The court in considering bail under NSL 42 applied the two thresholds laid down by the CFA in HKSAR v Lai Chee Ying [2021] HKCFA 3 (Case Summary): see annotations to NSL 42 for details. In considering the first threshold, the court had to make a predictive and evaluative exercise. It was only if the applicant had passed the first threshold that the court would consider the second threshold which would be consideration under the Criminal Procedure Ordinance (Cap. 221). (HKSAR v Wan Yiu Sing Edmund [2021] HKCFI 1261, para. 14 (Case Summary) ; HKSAR v Chan Chi Chuen Raymond [2021] HKCFI 2997, paras. 26-31 (Case Summary))

Under s. 88(1) of the Magistrates Ordinance (Cap. 227) (“MO”), a magistrate could not transfer the indictable offences specified in Part III of the Second Schedule to the MO (“excepted offences”) to the District Court (“DC”). The excepted offences include “any offence against Part I or Part II of the Crimes Ordinance (Cap. 200)” (the 5^th category). The issue in HKSAR v Tam Tak Chi [2021] HKDC 424, para. 34 (Case Summary) was whether the sedition offences, being offences under Part II of the Crimes Ordinance (Cap. 200) (“CO”), were excepted offences in respect of which a magistrate could not transfer to the DC.

The District Judge in Tam Tak Chi held that the excepted offences under Part III of the Second Schedule to the MO did not cover sedition offences under s. 10 of the CO because they were summary offences before the enactment of the NSL. The prosecution was then entitled to transfer the summary offences to the DC for trial if the conditions under s. 88(1)(b) of the MO were met. By virtue of NSL 41(3), sedition offences, being offences endangering national security, became indictable offences despite the fact that the words “on indictment” did not appear in s. 10 of the CO. It was the intention of the NSL that indictable offences endangering national security could be heard in or handled by the Magistrates’ Courts, the DC, the High Court and the CFA: NSL 45. As the NSL prevailed over local laws of the HKSAR under NSL 62 where inconsistencies appeared, the excepted offences relating to Parts I and II of the CO as stated in Part III of the Second Schedule to the MO, being inconsistent with the General Principles under Chapter I and the relevant Articles of the NSL, would not be valid. Part III of the Second Schedule to the MO would have to be “adapted” to cater for offences endangering national security because of the enactment of the NSL. This meant that the sedition offence could be transferred to the DC for trial because the sedition offence was no longer an excepted offence in the Second Schedule to the MO. (HKSAR v Tam Tak Chi [2021] HKDC 424, paras. 44, 46, 48-50 and 54 (Case Summary))

In the subsequent case of HKSAR v Chan Tai Sum [2022] HKDC 815 (Case Summary) , another District Judge held that sedition had always been a summary offence and it remained so after the promulgation of the NSL. Sedition was a summary offence and triable summarily only under s. 14A of the Criminal Procedure Ordinance (Cap. 221). The court pointed out that the sedition offence was the only offence in the whole of Part I and Part II of the CO that had an offence-creating provision which did not contain any words to indicate that it was an indictable offence under s. 14A of the Criminal Procedure Ordinance. The fact that sedition was treated differently by the Legislature from the other eight offences in Parts I and II of the CO clearly indicated that sedition was intended by the Legislature to be a summary offence. Since BL 23 provided that the HKSAR “shall enact laws on its own” to prohibit any act of sedition, the NSL could not have the intention of amending the offence-creating provision in s. 10 of the CO and changing sedition from a summary offence into an indictable offence. If the NSL had such intention, it would have said so explicitly. Since the NSL did not seek to change the local laws relating to the sedition offence (including the provisions creating the offence of sedition), sedition remained to be triable summarily only and not on indictment, and the term “offence endangering national security” in NSL 41(3) did not include the sedition offence. Hence, a magistrate would have no jurisdiction to transfer a charge in respect of the sedition offence to the DC under s. 88(1)(a) of the MO. However, if the accused faced not only a charge in respect of the sedition offence but also other charges which could be properly transferred to the DC under s. 88(1)(a) of the MO, a magistrate would then have the jurisdiction and power, in the exercise of his discretion, to order the charge for sedition to be transferred to the DC together with the charges that could be properly transferred to the DC under s. 88(1)(b). (paras. 59, 68, 73, and 79-81)

In Chow Hang Tung v Secretary for Justice [2022] HKCFI 2225, para. 51 (Case Summary) , it was held that the common law principles of open justice and press freedom were eminently featured in BL 27, BL 87, BOR 10, NSL 4 and NSL 41(4). The right to a fair trial was entrenched by the Basic Law; the common law principles of open justice (subject to well-defined exceptions) remained the norm after Hong Kong returned to China, and the NSL did not change that.

For the meaning of “offence endangering national security”, see annotations to NSL 5 and NSL 41.

In HKSAR v Wan Yiu Sing Edmund [2021] HKCFI 1261 (Case Summary) , although the prosecution pointed out that the alleged offences (contrary to s. 10(1)(a) of the CO) were committed against national security and therefore the NSL instead of the Criminal Procedure Ordinance (Cap. 221) (“CPO”) would apply when considering bail, the court gave the benefit of doubt to the accused in view of the fact that he was charged under the CO and not under the NSL, thus proceeding to consider his bail application under the CPO. (para. 15) This approach would probably be inconsistent with the subsequent decision by the CFA in HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42 mentioned above.

The offence of non-compliance with a notice under s. 3(3)(b) of Sch. 5 to the Implementation Rules for Article 43 of the NSL (“IR”) is an offence endangering national security rather than an ancillary offence for the purposes of NSL 42(2). Therefore, the thresholds laid down by the CFA in HKSAR v Lai Chee Ying [2021] HKCFA 3 (Case Summary) for bail applications made by defendants in cases concerning offences endangering national security pursuant to NSL 42(2) apply to persons charged with such offence. (HKSAR v Leung Kam Wai and Another [2021] HKCFI 3214, para. 9 (Case Summary))

An assertion that the bail application would effectively be determined under closed door was inaccurate when the bail proceedings were in fact conducted in open court with the public gallery opened to the public and broadcasting facilities outside the courtroom. (HKSAR v Ho Kwai Lam [2021] HKCFI 2707, para. 3 (Case Summary))

With the full cooperation of the parties, magistrates and judges should proactively seek ways to bring NSL-related matters to trial expeditiously, consistently of course with the interests of justice. There should be proactive case management and a monitoring of the progress of the court. The court should set and enforce strict timetables and should critically consider whether any prescribed procedural steps could be eliminated, re-sequenced, modified, split up or made to run concurrently to avoid delay and wasted effort, consistent always with a fair trial. (HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, para. 34 (Case Summary))

Where the defendants had been in pre-trial custody for a year, the lower courts should consider case management exercise to impose milestone dates, namely, dates which were set in concrete and parties would have to work around those dates unless there were exceptional circumstances to move a date. (HKSAR v Fan Kwok Wai Gary [2022] HKCFI 1173, para. 12 (Case Summary))

The direction for timely disposal of the trial under NSL 42(1) strongly militated against the contention that the SJ’s decision to issue a non-jury trial certificate under NSL 46(1) was amenable to conventional judicial review challenge. Such a challenge would definitely breed elaborate and protracted satellite proceedings, thereby frustrating the directive of NSL 42(1) by delaying if not derailing the criminal process. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 69-70 (Case Summary))

NSL 42(2) should be construed in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis upon which the NSL is applied in the HKSAR. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 8 (Case Summary))

NSL 41 and 42 make it clear that in respect of offences of endangering national security, the laws of the HKSAR “shall apply to procedural matters”, including matters related to criminal investigation, prosecution, trial, and execution of penalty, as well as matters such as detention and time limit for trial. The rules governing bail in general therefore operate in national security cases subject to any specific changes effected by NSL 42(2) which are made to prevail by NSL 62². (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 40 (Case Summary))

The court held that as far as Hong Kong courts were concerned, the common law approach should continue to be adopted in the construction of the NSL. If the Basic Law, which was right at the interface of “One Country, Two Systems”, was to be construed using the common law approach, there was no valid basis to adopt any other approach in the construction of the NSL. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, para. 49 (Case Summary))

In HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 42 and 70(c) (Case Summary), the CFA held that NSL 42(2) was to be construed and applied with the guarantees of human rights and the rule of law values affirmed by NSL 4 and 5, as well as with the general procedural rules made applicable by NSL 41 and 42, read as a coherent whole. As far as possible, NSL 42(2) was to be given a meaning and effect compatible with those rights, freedoms and values. Cf. Tong Ying Kit v HKSAR [2020] HKCFI 2133, para. 38 (Case Summary) where the court held that NSL 42 should be construed and applied, so far as reasonably possible, in a manner consistent with the protection of fundamental rights, including the right to liberty of the person under BL 28 and BOR 5.

NSL 42(2), in substance, targeted the risk of the accused committing offences endangering national security while on bail. Withholding bail in such a situation would not give rise to arbitrary detention. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, para. 50 (Case Summary))

Where the accused was charged with offences contrary to the NSL and was refused bail by a magistrate, the proper procedure to challenge the refusal decision ought to be an application to the High Court under s. 9J of the CPO for review of refusal of bail, instead of an application for a writ of habeas corpus. The sole consideration of the court in a habeas corpus application was whether the magistrate had lawful authority to make an order remanding the accused in custody pending the next court hearing, not whether the magistrate’s decision was correct; the latter being a matter to be determined in a bail review which proceeded on the basis that the detention was lawful. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 3(2), 13 and 21 (Case Summary))

The court rejected the argument that a magistrate was not “independent” merely because he was one of the judges designated by the CE under NSL 44. There was nothing to suggest that the magistrate was not free from influence or pressure when considering the accused’s bail application. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 56 and 64 (Case Summary))

NSL 42 (2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a new and more stringent threshold requirement for bail applications. Under s. 9G(1) of the CPO, the rule is “grant bail unless there are substantial grounds to believe violation will occur” which embodies the presumption in favour of bail, while under NSL 42(2) it is “no bail unless there are sufficient grounds to believe violation will not occur”, thus excluding the presumption of bail in the first instance. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 53(b) and 70(b) (Case Summary), overruling the CFI’s rulings on NSL 42(2) in Tong Ying Kit v HKSAR [2020] HKCFI 2133 (Case Summary) and HKSAR v Tong Ying Kit [2020] HKCFI 2196 (Case Digest), which rulings had been applied in HKSAR v Lai Chee Ying [2020] HKCFI 3161 (Case Summary))

The more stringent threshold for the grant of bail under NSL 42(2) applies to both offences safeguarding national security created by the NSL and those offences existing under HKSAR law, including the offence under s. 10(1)(c) of the Crimes Ordinance. (HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, paras. 29 and 32 (Case Summary))

The decision whether or not to grant bail involved a predictive and evaluative exercise. The judge should regard the NSL 42(2) “sufficient grounds” question as a matter for the court’s evaluation and judgment and not as involving the application of a burden of proof, so that there was no burden resting on either party. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 67, 68 and 70(d)(iii) (Case Summary))

All bail decisions involved a risk assessment looking to the future. In deciding whether he had sufficient grounds for believing that the accused would not continue to commit acts endangering national security, the judge should consider everything that appeared to the court to be relevant to making that decision, including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial. The court should not be confined to looking only at the evidence available at the time of the bail hearing and to exclude consideration of matters which might have a bearing on the accused’s likely conduct pending trial. It might in particular cases be helpful to have regard to factors such as those set out in s. 9G(2) of the CPO³. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 57, 58, 60 and 70(d)(i) (Case Summary); applied in HKSAR v Lai Chee Ying [2021] HKCFI 448, para. 16 (Case Summary), contrasting s. 9N(e) of the CPO which spoke in terms of “any other materials or representations which it considers credible or trustworthy in the circumstances”)

The court could take into account all the relevant matters, including matters of public record and assertions, which might not be of public record, including the applicant’s past performance, and conduct, and the bail conditions offered, in carrying out the “predictive and evaluative exercise”. (HKSAR v Lai Chee Ying [2021] HKCFI 448, para. 23 (Case Summary); HKSAR v Chan Chi Chuen Raymond [2021] HKCFI 2997, para. 26 (Case Summary)) This approach of carrying out “a predictive and evaluative exercise” on all the materials before the court has been followed in a number of bail review decisions: see, for example, HKSAR v Wong Ji Yuet [2022] HKCFI 1136 (Case Digest) ; Secretary for Justice v Ho Kai Ming Kalvin [2021] HKCFI 864 (Case Digest); and HKSAR v Wong Pak Yu [2021] HKCFI 2875 (Case Digest).

Although one’s financial might, political ideology, and associations were not, per se, suggestive of the commission of any offence, these were relevant matters in the assessment. Matters like an applicant’s background, associations, community ties and financial position were clearly relevant considerations. (HKSAR v Lai Chee Ying [2021] HKCFI 448, paras. 21-22 (Case Summary))

In an appropriate case, an undertaking not to repeat the alleged conducts could serve as a means to satisfy the NSL 42(2) “sufficient grounds” requirement. However, in HKSAR v Ma Chun Man [2020] HKCFI 3132, at paras. 32-33 (Case Summary), the court did not accept the applicant’s undertaking offered after having considered his behaviour displayed, including his repeated commission of similar offences whilst under police bail and his speeches appearing to become more radical over time.

If, having taken into account all relevant materials, the judge concluded that he did not have such sufficient grounds, bail had to be refused. If, on the other hand, the judge concluded that he did have such sufficient grounds, the court should proceed to consider all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail. These included consideration of: (a) whether there were substantial grounds for believing that the accused would fail to surrender to custody, or commit an offence (not limited to national security offences) while on bail, or interfere with a witness or pervert or obstruct the course of justice; and (b) whether conditions aimed at securing that such violations would not occur ought to be imposed in accordance with ss. 9D(2) and 9G of the CPO. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 70(e) and (f) (Case Summary))

Accordingly, the court in considering bail under the NSL applied the two thresholds laid down by the CFA in HKSAR v Lai Chee Ying [2021] HKCFA 3 (Case Summary). In considering the first threshold, the court had to make a predictive and evaluative exercise. It was only if the applicant had passed the first threshold that the court would consider the second threshold which would be consideration under the CPO. (HKSAR v Wan Yiu Sing Edmund [2021] HKCFI 1261, para. 14 (Case Summary); HKSAR v Chan Chi Chuen Raymond [2021] HKCFI 2997, paras. 26-31 (Case Summary))

The court held that by using the word “continue”, NSL 42(2) recognised that the defendant was alleged to have committed offence(s) involving acts endangering national security, and required assurance that he would not commit acts of such a nature if bail was granted. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 53(c)(i) (Case Summary))

In Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 28-30 (Case Summary), it was held that NSL 42 was part of Chapter IV of the NSL which envisaged a trial to determine the question of guilt of an accused person. The word “continue” in NSL 42(2) merely meant “for a continuing period, ie for the future if bail is granted”.

The court also discussed the construction of NSL 42(2) in the above case. One of the issues was whether an applicant for bail had to acknowledge that he had already committed acts endangering national security, or the judge or magistrate had to form a view that the applicant had committed such acts and that he would not continue to commit them. The court held that it would be wholly illogical to read NSL 42(2) as meaning that the person seeking bail was first required to admit his guilt. Such a construction of NSL 42(2) would be wholly inconsistent with the presumption of innocence expressly recognised in NSL 5. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 29-30 (Case Summary))

The court, in considering bail, had to look at the individual circumstances of each particular applicant. While it might be helpful for counsel to refer to other applicants involved in the same case as to their success in being granted bail, it was ultimately for the court to make the evaluation and assessment based on the individual applicant’s background and conduct in the past, whether he, if granted bail, would not continue to commit acts endangering national security. (HKSAR v Chan Chi Chuen Raymond [2021] HKCFI 2997, para. 23 (Case Summary))

It was difficult to envisage the accused committing acts endangering national security which would not amount to offences either under the NSL or under HKSAR law such as the offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 53(c)(ii) (Case Summary); HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, paras. 12-13 (Case Summary))

Where the NSL provision refers to “acts endangering national security” (NSL 42(2)) or to “acts and activities endangering national security” (NSL 8), that phrase should be construed as referring to acts endangering national security which are “capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security.” (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 53(c)(ii) and 70(d)(ii) (Case Summary); HKSAR v Ng Hau Yi Sidney [2021] HKCFA 42, para. 28 (Case Summary))

In making the assessment, consideration should not be restricted to the likelihood and feasibility of a repetition of the same or similar acts forming the basis of the charge. The CFA in HKSAR v Lai Chee Ying [2021] HKCFA 3 (Case Summary) did not so limit the ambit and “acts endangering national security” in the context of NSL 42(2) was construed as referring to “acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security”. (HKSAR v Lai Chee Ying [2021] HKCFI 448, para. 19 (Case Summary))

It was not reasonably arguable that generally, the grant of bail by a Judge of the CFI was a final decision falling within the CFA’s appellate jurisdiction under s. 31(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). The original order granting bail was not final but could be revoked or varied, not just on the application of the accused, but also at the instance of the prosecution. (HKSAR v Lai Chee Ying [2020] HKCFA 45, paras. 15-17 (Case Summary))

Where the prosecution had been granted leave to appeal to the CFA on the ground that the Judge might have erred in his construction or application of NSL 42(2) in adopting his approach to the grant of bail, the Appeal Committee of the CFA had jurisdiction to entertain an application by the prosecution for the accused who had been granted bail by the Judge to be held in custody pending determination of the appeal. In order to avoid possible irreparable prejudice to national security and the appeal being rendered nugatory, the status quo ante (involving the accused being remanded in custody pursuant to the order of the Chief Magistrate) ought to be maintained pending determination of the appeal, subject to the Appeal Committee giving directions for the appeal to be heard and determined with exceptional expedition. (HKSAR v Lai Chee Ying [2020] HKCFA 45, paras. 20 and 29-31 (Case Summary))

The court in considering bail had a duty to protect the integrity of the future proceedings and to ensure that what was said at the preliminary stage in the bail application did not hamper the ultimate handling of the case by counsel for the accused in the trial. (HKSAR v Chan Chi Chuen Raymond [2021] HKCFI 2997, para. 24 (Case Summary)) Should an applicant wish to instruct a new counsel to represent him in the future, the new counsel should not be hampered in his representation of the applicant by what was said by the counsel in the bail application. (HKSAR v Ho Kwai Lam [2021] HKCFI 2707, para. 2 (Case Summary))

For case law on NSL 42, reference may be made to those cases cited in the above paragraphs as well as the following bail review cases (in the alphabetical order of the names of the parties):

• HKSAR v Cheung Kim Hung [2021] HKCFI 3372 (Case Digest)
• HKSAR v Cheung King Sang Kinson [2021] HKCFI 3584 (Case Digest)
• HKSAR v Chow Ka Sing [2021] HKCFI 2075 (Case Digest)
• HKSAR v Chui Chi Kin [2021] HKCFI 969 (Case Digest)
• HKSAR v Chung Kam Lun [2021] HKCFI 1473 (Case Digest)
• HKSAR v Fan Kwok Wai Gary [2021] HKCFI 3109 (Case Digest)
• HKSAR v Fung Tat Chun Frankie [2022] HKCFI 744 (Case Digest)
• HKSAR v Fung Wai Kong [2022] HKCFI 1017 (Case Digest)
• HKSAR v Lam Cheuk Ting [2022] HKCFI 1797 (Case Digest)
• HKSAR v Leung Kwok Hung [2021] HKCFI 1227 (Case Digest)
• HKSAR v Mo Man Ching Claudia [2021] HKCFI 1435 (Case Digest)
• HKSAR v Ng Man Yee Carol [2022] HKCFI 1061 (Case Digest)
• HKSAR v Sham Tsz Kit [2021] HKCFI 1331 (Case Digest)
• HKSAR v Tam Hoi Pong [2021] HKCFI 2669 (Case Digest)
• HKSAR v Wan Siu Kin Andrew [2021] HKCFI 1255 (Case Digest)
• HKSAR v Yu Wai Ming Winnie [2021] HKCFI 2562 (Case Digest)
• HKSAR v Yung Chung Hei [2021] HKCFI 2765 (Case Digest)
• Secretary for Justice v Cheng Tat Hung [2021] HKCFI 792 (Case Digest)
• Secretary for Justice v Cheung Ho Sum [2021] HKCFI 875 (Case Digest)
• Secretary for Justice v Kwok Ka Ki [2021] HKCFI 862 (Case Digest)
• Secretary for Justice v Lee Yue Shun [2021] HKCFI 919 (Case Digest)
• Secretary for Justice v Ng Kin Wai [2021] HKCFI 772 (Case Digest)
• Secretary for Justice v Or Yiu Lam Ricky [2021] HKCFI 849 (Case Digest)
• Secretary for Justice v Pang Cheuk Kei [2021] HKCFI 850 (Case Digest)
• Secretary for Justice v Sze Tak Loy [2021] HKCFI 900 (Case Digest)
• Secretary for Justice v Tam Man Ho Jeremy Jansen [2021] HKCFI 791 (Case Digest)
• Secretary for Justice v Wong Pik Wan [ 2021] HKCFI 771 (Case Digest)

The court held that one of the primary objectives of the NSL was to effectively suppress, prevent and punish offences and acts endangering national security. Effective investigation by the police was crucial to achieving such objective. The police must have sufficient powers to take all necessary measures in carrying out investigation. The legislative purpose of NSL 43(1) was to give effect to the above objective of the NSL. (Lai Chee Ying v Commissioner of Police [2022] HKCA 1574, para. 17(1) (Case Summary))

For the meaning of “offence endangering national security”, see annotations to NSL 5 and NSL 41.

It is reasonably clear from the wording of NSL 43 that the powers granted thereunder are in addition to those existing at the time when the NSL was made. (Lai Chee Ying v Secretary for Security [2021] HKCFI 2804, para. 29 (Case Summary))

By the clear wording of NSL 43, the NPCSC intended to confer on the Police additional powers in handling cases concerning offence endangering national security. The Police are vested with power both under the NSL and the Police Force Ordinance (Cap. 232) in investigating offences endangering national security, and are entitled to invoke both powers in their investigations. (Lai Chee Ying v Commissioner of Police [2022] HKCFI 2688, para. 13(1) (Case Summary))

It is incorrect that the NSL only confers power on police officers posted in the National Security Department of the Police (“NSD”) to apply the measures under NSL 43(1). It is clear from NSL 43(2) that the measures stipulated in NSL 43(1) are to be applied by law enforcement authorities not limited to the NSD. The provisions of r. 2 of the “Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (see next section) refer to “a police officer” as opposed to an officer in the NSD. (Next Digital Limited and Others v Commissioner of Police [2021] HKCFI 1677, para. 76 (Case Summary))

The CE in conjunction with the Committee for Safeguarding National Security of the HKSAR has made the “Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (“IR”) (L.N. 139 of 2020) which came into force on 7 July 2020⁴.

It is clear from NSL 43(3) that the phrase “the measures stipulated in [or under] the first paragraph of [Article 43]” (“本條第一款規定措施”) refers to the powers under NSL 43(1)(1) to (7). The IR was accordingly made, with its seven schedules each dealing with one measure under NSL 43(1)(1) to (7). (Next Digital Limited and Others v Commissioner of Police [2021] HKCFI 1677, para. 76(3) (Case Summary))

NSL 43(1), in its terms, mandates that the NSL and the laws of the HKSAR shall apply to procedural matters including criminal investigation in respect of cases concerning offence endangering national security over which the HKSAR exercises jurisdiction. Accordingly, both the NSL and local laws on search apply in the investigation of an offence endangering national security, indicating that Sch. 1 of the IR and the local laws on search are to work in tandem as a coherent whole. (Lai Chee Ying v Commissioner of Police [2022] HKCA 1574, paras. 16 and 17(2) (Case Summary))

In Lai Chee Ying v Commissioner of Police [2022] HKCFI 2688, para. 13(3) and (4) (Case Summary), the court held that the regime under Part XII of the Interpretation and General Clauses Ordinance (Cap. 1) (“IGCO”) did not enjoy any constitutional status. Since the IR were a necessary part of the NSL and its implementation, in case of any inconsistencies between local laws (including the IGCO) and the IR (which were made pursuant to NSL 43), the latter should prevail because of NSL 62 which expressly provided that the NSL should prevail where provisions of the local laws of the HKSAR were inconsistent with the NSL.

Pursuant to NSL 43(1)(3), a property may be subject to different measures taken by the authority, namely, freezing of, applying for restraint order, charging order and confiscation order in respect of, and forfeiture of property. The property which may be subject to such actions is: (a) property used or intended to be used for the commission of an offence; (b) proceeds of crime; or (c) other property relating to the commission of an offence.

It was implicit that the offence or crime referred to in NSL 43(1)(3) was intended to be NSL offence or crime. (Lai Chee Ying v Secretary for Security [2021] HKCFI 2804, paras. 45-46 (Case Summary))

“Designated judges” are the judges in each level of courts designated by the CE to handle cases concerning offences endangering national security pursuant to NSL 44(1). (HKSAR v Lai Man Ling and Others [2022] HKDC 355, paras. 15-16 (Case Summary))

In HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 44-46 (Case Summary), it was held that the appointment of judges by the Executive did not per se compromise the independence of those judges. All judicial officers in Hong Kong, whether designated under NSL 44 or not, were appointed by the CE under BL 88. Although the CE had a wide discretion under NSL 44 as to designation of judges, he did not have a free rein because the appointment of judges was governed by the Basic Law (BL 85 and 88-92) and relevant local legislation, including the Judicial Officers Recommendation Commission Ordinance (Cap. 92).

In the above case, it was further held that apart from the qualities and qualification of the person who was appointed to judicial office, the following factors were also conducive to public confidence in the independence of the Judiciary: (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 48-49 and 52-53 (Case Summary))

It had been submitted that there was no public information about the criteria for designation of judges, the consultation process, or the number, identity, renewal or removal of designated judges. The court held that NSL 44 on its face did not require the CE to disclose such information. In any event, any legal duties on the CE to make such disclosure would be overridden by NSL 62. The absence of such information in the public domain would not render the trial unfair or apparently unfair. Designations were only made from serving judicial officers who had already been considered as fit and proper persons to perform judicial function at their respective levels. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 58-60 (Case Summary))

The court held that the setting up of a list of designated judges was conducive to improving the efficiency of trials and consistency. NSL 42(1) read with NSL 58(2) required the fair and timely disposal of NSL cases. The CE had to designate sufficient number of judges at different levels of courts so that NSL cases could be dealt with as expeditiously as fairness demanded. The size of the pool of designated judges would depend on the number of cases to be dealt with, the numbers of judicial officers with the relevant expertise available, and generally operational needs. In view of the number of judges which had already been designated and since assignment of trial judges for any given case was a matter entirely for the court leaders, the CE could not manipulate the allocation of trial judges. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 56-57 (Case Summary))

As regards deputy judges and judicial officers at different levels of trial courts⁵, they are all appointed by the CJ without any involvement of the CE. Their appointments are temporary and are usually on short-term basis. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 47 (Case Summary))

For the meaning of “offence endangering national security”, see annotations to NSL 5 and NSL 41.

In one case, the CFI quoted an open statement by Ma CJ that in considering the suitability of judges to be designated, any legal objections would have to be taken into account, such as those set out in NSL 44 or any objections based on bias or reasonable perceptions of bias. Judges of foreign nationality are not excluded from designation. (HKSAR v Lai Chee Ying [2023] HKCFI 1440 , paras. 54-55 (Case Summary))

If reports of the Judicial Officers Recommendation Commission to the CE should be privileged and confidential under ss. 9 and 11 of the Judicial Officers Recommendation Commission Ordinance (Cap. 92), there was no reason why the advice given by the CJ to the CE under NSL 44 should not similarly be confidential. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 59 (Case Summary))

Even if the designation of a judge is not renewed or is revoked, the judge still enjoys the security of tenure guaranteed by the Basic Law. A designation under NSL 44 gives a judge no advantage and in case of non-renewal the judge suffers no loss. The proposition that a judge would be perceived by a reasonable person to be likely to seek to maintain his status as a designated judge by subconsciously favouring the Government borders on an insinuation about the integrity of members of the Judiciary. NSL cases comprise only a small proportion of all criminal cases, and elevation to a higher judicial post is based on the Judicial Officers Recommendation Commission’s recommendation. General security of tenure as entrenched by the Basic Law is sufficient to protect judges, designated or not, from Executive interference. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 61 and 69 (Case Summary))

The requirement that a judge is not to be designated and, if designated, should be removed from the list of designation, if he has made any statement or behaved in any manner endangering national security, is legitimate, reasonable and necessary. The threshold for revocation of designation is extremely high. Any suggestion that designated judges would not be renewed or would be removed for an illegitimate purpose is based on pure speculation. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 50, 60 and 61(1) (Case Summary))

NSL 44(3) provides that the proceedings in relation to the prosecution for offences endangering national security in each level of courts “shall be” handled by designated judges in the respective courts. The court held that by using the word “shall”, NSL 44(3) made it mandatory that all proceedings relating to the prosecution for “offences endangering national security” in each level of courts had to be and could only be handled by the designated judges in that level of courts. (HKSAR v Lai Man Ling and Others [2022] HKDC 355, paras. 15-16 (Case Summary))

A request by the prosecution to the Registrar of the District Court that a case concerning the offence of sedition be handled by a designated judge pursuant to NSL 44(3) was made solely for the purpose of ensuring that the ensuing legal proceedings would be conducted in accordance with the requirements of the law. Whether or not the presiding judge had the jurisdiction to hear the case was an important matter that had to be resolved the sooner the better. If such an issue had arisen, the prosecutor in charge of the criminal prosecution had the primary duty to raise the issue with the Court to ensure that the ensuing legal proceedings would not be rendered null and void. (HKSAR v Lai Man Ling and Others [2022] HKDC 355, paras. 43-44 (Case Summary)).

The court held that listing and handling of cases and the assignment of which judge to handle a case were matters within the sole responsibility of the Judiciary. The function of a listing judge was to ensure that cases were listed before appropriate judges with minimum delay. (HKSAR v Tam Tak Chi [2020] HKDC 1153, para. 7 (Case Summary))

Where there was a dispute between the parties as to whether a designated judge should be assigned to determine an application or to handle the proceedings of a case, the substantive argument should be listed before a designated judge to avoid any potential ultra vires problems and so that the parties could focus on their substantive argument without being sidetracked by collateral matters. (HKSAR v Tam Tak Chi [2020] HKDC 1153, paras. 5 and 7 (Case Summary))

In Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 3(5), 54 and 55 (Case Summary), it was held that NSL 44 only enabled the CE to designate a number of judges at different levels of courts in Hong Kong to handle cases concerning offence endangering national security. The question of which designated judge was assigned to hear any given case remained a matter for the Judiciary, not the CE or the Government. There was no proper or sufficient basis to contend that, in relation to such cases, the CE or the Government was in a position to interfere in matters that were directly and immediately relevant to the adjudicative function.

In the above case, it was further held that NSL 44 had nothing to do with a designated judge’s security of tenure which was protected by BL 89(1). Judges were duty-bound by the judicial oath to discharge their functions strictly in accordance with the law, and to be completely free of any interference from, or influence by, the Government. A reasonable, fair-minded and well-informed observer would not think that judges designated by the CE were, or might be, no longer be independent of the Government. (Tong Ying Kit v HKSAR [2020] HKCFI 2133, paras. 3(5) and 58-59 (Case Summary))

Judicial independence is guaranteed by BL 85. The court held that professional judges would not be affected in any way by public statements concerning the case which were attributed to people or entities perceived to represent the views of the authorities. The case was to be determined according to applicable laws and solely on the basis of available evidence of which those public statements formed no part. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 78 (Case Summary))

In Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 27 (Case Summary), it was held that by virtue of the introductory words in NSL 45 (“Unless otherwise provided by this Law”), NSL 46(1), if invoked, would allow a non-jury trial to be conducted in the Court of First Instance of the High Court. Thus, even assuming that there was a right to jury trial entrenched in BL 86 which provided that the principle of trial by jury previously practised in Hong Kong should be maintained, it was not absolute and might be abrogated by NSL 46(1).

The court further noted in the above case that it was provided in NSL 45 and NSL 62 that in respect of the procedure for trials of NSL offences, the provisions in the NSL should prevail over other laws in Hong Kong. Hence, insofar as there was conflict between s. 41(2) of the Criminal Procedure Ordinance (Cap. 221) and NSL 46, the latter should prevail. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 81 (Case Summary))

NSL 45 provides that unless otherwise provided by the NSL, all courts in Hong Kong, including the District Court, shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the HKSAR. The court held that if sedition offences under s. 10 of the Crimes Ordinance (“CO”) were offences endangering national security, it would be absurd that the NPCSC would “exclude” those s. 10 offences from being tried in the District Court. It was the intention of the NSL that indictable offences endangering national security, including the sedition offences under s. 10 of the CO, could be heard in or handled by the Magistrates’ Courts, the District Court, the High Court and the CFA: NSL 41(3) and 45. (HKSAR v Tam Tak Chi [2021] HKDC 424, paras. 39-40, 46 and 54 (Case Summary)) Cf. HKSAR v Chan Tai Sum [2022] HKDC 815, para. 80 (Case Summary), holding that sedition had always been a summary offence and it remained so after the promulgation of the NSL.⁶

Before the promulgation of the NSL, trial before a judge and a jury was the only mode of criminal trial available in the CFI because of the procedural requirement of s. 41(2) of the Criminal Procedure Ordinance (Cap. 221) (“CPO”). After the promulgation of the NSL, there are two possible ways to deal with criminal proceedings concerning offences endangering national security in the CFI: (i) the conventional mode of having a trial before a judge and a jury; and (ii) the new mode of having a trial before a panel of three judges. In the absence of a certificate issued under NSL 46(1), the procedural requirements contained in the local legislation including those of the Magistrates Ordinance (Cap. 227), the District Court Ordinance (Cap. 336) and the CPO should be followed. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, paras. 13 and 23 (Case Summary))

Since the NSL is not subject to review on the basis of any alleged incompatibility as between the NSL and the BL or the ICCPR as applied to Hong Kong, NSL 46(1) cannot be reviewed in courts. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 26 (Case Summary))

The court held that in construing NSL 46(1), the court should apply the same well-established common law technique of purposive and contextual construction adopted by the CFA in interpreting NSL 42(2) in HKSAR v Lai Chee Ying [2021] HKCFA 3. The context in which NSL 46(1) operated consisted of the legislative process of the NSL, various articles in the NSL, the relevant articles of the Basic Law and the BOR that shed light on context and purpose, and the corpus of law concerning jury trial and prosecutorial decisions protected by BL 63. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 31 and 34-35 (Case Summary))

As the NSL is consistent with the Basic Law, there can be no inconsistency or incompatibility between NSL 46(1) and BL 63 or 86. NSL 46(1), BL 63 and BL 86 should be read as a coherent whole. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 45 (Case Summary))

NSL 46(1) had to be read together with NSL 4 and 5, BL 87, and BOR 10 and 11, to ensure that the accused’s constitutional right to a fair trial as embodied in those provisions was not compromised. The prosecution also had a legitimate interest in maintaining the fairness of the trial. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 42 (Case Summary))

The court noted the following basic features of NSL 46(1): (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 36 (Case Summary))

NSL 46 provides that in “criminal proceedings in the [CFI] concerning offences endangering national security”, the SJ may issue a certificate directing that the case shall be tried without a jury, and by a panel of three judges instead. It does not provide that such a certificate can only be issued in a case which “only concerned” offences endangering national security. Where the accused is charged with an NSL offence and the prosecution applies for leave to add an alternative count which is not of an offence endangering national security, the proceedings remain to be criminal proceedings “concerning” offences endangering national security. NSL 46 should not be construed as requiring different tribunals of fact (i.e. a panel of three judges, and a jury) to be formed in one single set of criminal proceedings to deal separately with offences endangering national security and other offences which could properly be included in one indictment. (HKSAR v Tong Ying Kit [2021] HKCFI 1644, para. 7 (Case Summary))

The decision-making process undertaken by the SJ under NSL 46(1) may involve classified information such as State secrets, confidential intelligence concerning involvement of foreign factors, sensitive materials on risks of personal safety of jurors or their family members or threats to due administration of justice. The information or materials are ordinarily of such a nature that it would not be in the public interest to disclose, or for the SJ to reveal to, or discuss with, the accused before trial. The court held that the SJ had to take into account all the relevant circumstances in assessing all the materials available, some of which might not be admissible in evidence, and made a judgment call. It was usually of the impressionistic and instinctual variety. NSL 46(1) entrusted the SJ alone with this enormous task. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 64 (Case Summary))

The Appeal Committee of the CFA decided in Chiang Lily v Secretary for Justice (2010) 13 HKCFAR 208 that the SJ’s decision on venue of trial, which resulted in a non-jury trial by operation of a statutory provision, was a prosecutorial decision protected under BL 63 and was not reviewable on conventional judicial review grounds. The Court of Appeal held that likewise, issuing a certificate under NSL 46(1) was undeniably a prosecutorial decision made by the SJ in the criminal process, and BL 63 shielded that decision from any conventional judicial review challenge. Hence, the SJ’s decision under NSL 46(1) was not amenable to conventional judicial review challenge such as the principle of legality and procedural safeguards. It was only amenable to judicial review on the limited grounds of dishonesty, bad faith and exceptional circumstances. By definition and as confirmed in the case law, these challenges were rare. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 54, 56, 68, 71 and 73 (Case Summary))

The mere absence of any or any detailed reasons given in the certificate was plainly insufficient to meet the very high evidential threshold for reviewing a prosecutorial decision. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, para. 44 (Case Summary))

The direction for timely disposal of the trial under NSL 42(1) strongly militated against the contention that the SJ’s decision to issue a non-jury trial certificate under NSL 46(1) was amenable to conventional judicial review challenge. Such a challenge would definitely breed elaborate and protracted satellite proceedings, thereby frustrating the directive of NSL 42(1) by delaying if not derailing the criminal process. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 69-70 (Case Summary))

The express grounds given in NSL 46(1) were such that it would neither be reasonable nor appropriate for SJ to seek an accused’s views on them before trial. It would be unwise to have a mini-trial (before verdict) for the parties to argue whether the case would involve State secrets; whether there were foreign factors; whether there was any attempt (by the accused or someone else) to interfere with jury and so forth. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, para. 31 (Case Summary))

A right to be consulted or be heard before the SJ issued his certificate under NSL 46(1) could not be derived from BL 86. Just as BL 86 could not be relied upon to mount a conventional judicial review against the SJ’s decision on venue, neither could it be relied upon to mount such challenge against the decision to issue a certificate under NSL 46(1). (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 78 and 83 (Case Summary))

The NSL focused specifically on safeguarding national security and preventing and suppressing acts endangering national security in the HKSAR. NSL 46(1) sought to give full effect to that primary purpose of the NSL in that: (a) it applied to criminal proceedings in the CFI concerning offences endangering national security; and (b) the first two stated grounds upon which the SJ might issue a non-jury trial certificate (namely, protection of State secrets and involvement of foreign factors) plainly arose from the special nature and needs of the offences endangering national security. The third ground stated in NSL 46(1) (namely, protection of personal safety of jurors and their family members) had to be understood with fairness of a criminal trial in mind. When the personal safety of jurors or their family members was under threat, it would seriously undermine the integrity of the criminal process. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 37-38 and 43 (Case Summary))

A non-jury trial by a panel of three judges as mandated by NSL 46(1) served the prosecution’s legitimate interest in maintaining a fair trial and safeguarded the accused’s constitutional right to a fair trial. The two reasons specified in the certificate in Tong Ying Kit’s case (namely, the threat to personal safety of jurors and their family members and the risk of impairment to due administration of justice) were amply supported by considerations of fair trial. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 43-44 (Case Summary))

The new mode of trial in the CFI could be used if and only if the SJ genuinely believed that the grounds stated in the certificate existed. The grounds given in NSL 46(1) for invoking the new mode were non-exhaustive. There could be grounds other than the three given which might justify a trial without jury. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, para. 23 (Case Summary))

Jury trial is not the only means of achieving fairness in the criminal process. Neither BL 87 nor BOR 10 specifies trial by jury as an indispensable element of a fair trial in the determination of a criminal charge. When there is a real risk that the goal of a fair trial by jury would be put in peril by reason of a threat to the personal safety of jurors and their family members, the only assured means for achieving a fair trial is a non-jury trial. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 43 (Case Summary))

Where an accused person’s right to a fair trial was not engaged and he did not have a right to a jury trial, the SJ’s decision to issue a non-jury trial certificate under NSL 46 would not constitute a restriction of his rights and the 4-step proportionality test set out in Hysan Development Co Ltd v Town Planning Board would not be engaged. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, para. 46 (Case Summary))

In Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 27 (Case Summary), it was held that by virtue of the introductory words in NSL 45 (“Unless otherwise provided by this Law”), NSL 46(1), if invoked, would allow a non-jury trial to be conducted in the Court of First Instance of the High Court. Thus, even assuming that there was a right to jury trial entrenched in BL 86 which provided that the principle of trial by jury previously practised in Hong Kong should be maintained, it was not absolute and might be abrogated by NSL 46(1).

In the above case, it was further held that even assuming that there was a right to jury trial under s. 41(2) of the Criminal Procedure Ordinance (Cap. 221) for prosecutions brought by way of indictment, such right had been curtailed by NSL 46 because of NSL 45 and 62. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, paras. 79-82 (Case Summary))

The certificate, once issued by the SJ, serves as a mandatory direction that the case should be tried without a jury by a panel of three judges. (Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, para. 22 (Case Summary))

Where a case is presided over by a panel of three judges without a jury, legal principles such as those relating to burden of proof, standard of proof, presumption of innocence, right of silence and right to a fair trial, apply in the case as much as they apply in any criminal case tried in the CFI with a jury: NSL 5, 41 and 45. It could not be suggested that unfairness would result when a defendant is tried without a jury for, in the Magistrates’ Courts and District Court, all the cases are tried without a jury. (HKSAR v Tong Ying Kit [2021] HKCFI 2200, paras. 7 and 8 (Case Summary); and Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 28 (Case Summary) where the applicant accepted that he would still have a fair trial before the panel of three judges even though it was not a jury trial.)

Section 81DA in Division 6 (appeal by way of case stated) of Part IV of the Criminal Procedure Ordinance (Cap. 221)⁷ provides that if the CFI tries a case concerning offences endangering national security without a jury by a panel of three judges, and the CFI gives a verdict or order of acquittal in relation to a defendant in the case, the SJ may appeal to the CA by way of case stated against the verdict or order. The appeal may relate to matters of law only, which have been interpreted in case authorities to include a perverse conclusion or finding of fact that no reasonable judge, applying his mind to the proper considerations and giving himself the proper directions, could have come to. If the CA is satisfied that there are sufficient grounds for interfering with the verdict or order, it must reverse the verdict or order, and direct that the trial be resumed or the respondent be retried.

The courts of the HKSAR shall request and obtain a certificate from the CE 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 concerning an offence endangering national security. (NPCSC Interpretation of NSL 14 and 47 (2022), para. 2) ⁸

Paragraph 2 of the NPCSC Interpretation of NSL 14 and 47 (2022) only requires the HKSAR courts to request and obtain a certificate from the CE as to whether an act involves national security “when such a question arises in the adjudication of a case concerning an offence endangering national security”. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 82 (Case Summary))

National security is the responsibility of the Executive and the Government has much greater expertise in the assessment of risks to national security. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 75(3) (Case Summary))

The question whether overseas lawyers not qualified to practise generally in the HKSAR may serve as defence counsel or legal representatives in cases concerning an offence endangering national security is a question that requires certification under NSL 47, and a certificate from the CE shall be obtained. If the courts of the HKSAR have not requested or obtained a certificate on such question from the CE, the Committee for Safeguarding National Security of the HKSAR shall perform its statutory duties and functions in accordance with the provisions of NSL 14 to make relevant judgements and decisions on such situation and question. (NPCSC Interpretation of NSL 14 and 47 (2022), para. 3; considered in Lai Chee Ying v Secretary for Justice [2023] HKCFI 1382, para. 61 (Case Summary) and HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 82 (Case Summary))

The certificate shall be binding on the courts. (NPCSC Interpretation of NSL 14 and 47 (2022), para. 2) NSL 47 is applicable in civil as well as criminal cases and is not restricted to trials by designated judges. That the courts are bound as regards certain matters by a certificate from the Executive does not mean that the courts may be biased. It simply means that their jurisdiction is restricted in relation to those matters, an example of which can be found in BL 19 concerning “acts of state”. Since there can be no challenge to the constitutionality of NSL 47, that article cannot afford the accused person a ground for stay of proceedings or to support his contention of “apparent bias”. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 62-64 (Case Summary))

Art. 4 of the NPC 5.28 Decision provides that when needed, relevant national security organs of the CPG will set up agencies in the HKSAR to fulfil relevant duties to safeguard national security in accordance with the law.

While the NSL is intended to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws, NSL 62 provides for possible inconsistencies, giving priority to NSL provisions in such cases. (HKSAR v Lai Chee Ying [2021] HKCFA 3, paras. 18 and 29 ((Case Summary))

In general, the rules governing bail in the laws of the HKSAR operate in national security cases subject to any specific changes effected by NSL 42(2) which are made to prevail by NSL 62. (HKSAR v Lai Chee Ying [2021] HKCFA 3, para. 40 (Case Summary))

It was held that, as the NSL prevailed over local laws of the HKSAR under NSL 62 where inconsistencies appeared, the excepted offences relating to Parts I and II of the Crimes Ordinance (Cap. 200) as stated in Part III of the Second Schedule to the Magistrates Ordinance (“MO”), being inconsistent with the General Principles under Chapter I and the relevant Articles of the NSL, would not be valid. Part III of the Second Schedule to the MO would have to be “adapted” to cater for offences endangering national security because of the enactment of the NSL. This meant that the sedition offence could be transferred to the District Court for trial because the sedition offence was no longer an excepted offence in the Second Schedule to the MO. (HKSAR v Tam Tak Chi [2021] HKDC 424, paras. 44, 46, 48-50 and 54 (Case Summary)) Cf. HKSAR v Chan Tai Sum [2022] HKDC 815, para. 80 (Case Summary), holding that sedition had always been a summary offence and it remained so after the promulgation of the NSL.⁹

It is provided in NSL 45 and NSL 62 that in respect of the procedure for trials of NSL offences, the provisions in the NSL should prevail over other laws in Hong Kong. Hence, insofar as there is conflict between s. 41(2) of the Criminal Procedure Ordinance (Cap. 221) and NSL 46, the latter should prevail. (Tong Ying Kit v Secretary for Justice [2021] HKCA 912, para. 81 (Case Summary))

Local sentencing laws must operate in tandem with the NSL to achieve the aim of safeguarding national security, giving priority to NSL provisions in case of inconsistency. (HKSAR v Lui Sai Yu [2022] HKCA 1780, para. 56 (Case Summary); affirmed by the CFA in HKSAR v Lui Sai Yu [2023] HKCFA 26, para. 35 (Case Summary))

It had been argued that NSL 14 was subject to the common law rule that a statutory provision which ousted the court’s supervisory jurisdiction over a public body did not apply if the impugned decision was made outside the public body’s powers (“the Ultra Vires Rule”). The court held that such reliance on the Ultra Vires Rule was entirely misplaced. Under the constitutional norm of the HKSAR, the courts had not been vested with any jurisdiction over the work of the Committee for Safeguarding National Security of the HKSAR (“CSNS”) under NSL 14 to begin with. The question of NSL 14 ousting the courts’ supervisory jurisdiction over the CSNS simply did not arise. In any event, in light of NSL 62, priority had to be given to NSL 14 over the Ultra Vires Rule, which meant that the rule could have no application to the work and decisions of the CSNS. (Lai Chee Ying v Secretary for Justice [2023] HKCFI 1382, paras. 26 and 41 (Case Summary))

NSL 44 on its face does not require the CE to disclose information about the criteria for designation of judges, the consultation process, or the number, identity, renewal or removal of designated judges. Any legal duties on the CE to disclose such information would be overridden by NSL 62. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, para. 59 (Case Summary))

By virtue of NSL 62, the law on “apparent bias” had to be subject to NSL 44 and 46 so that a systemic attack on trials by designated judges could not be entertained. The contention that there was a real possibility that any judge designated under NSL 44 would be biased (actually or apparently) against the accused, if correct, would mean that the accused could not be tried by any HKSAR courts, regardless of the seriousness of the allegations against him. That would plainly be contrary to public interests and the legislative intent of the NSL. (HKSAR v Lai Chee Ying [2023] HKCFI 1440, paras. 70-71 (Case Summary))

In Lai Chee Ying v Commissioner of Police [2022] HKCFI 2688, para. 13(3) and (4) (Case Summary), the court held that the regime under Part XII of the Interpretation and General Clauses Ordinance (Cap. 1) (“IGCO”) did not enjoy any constitutional status. Since the IR were a necessary part of the NSL and its implementation, in case of any inconsistencies between local laws (including the IGCO) and the IR (which were made pursuant to NSL 43), the latter should prevail because of NSL 62 which expressly provided that the NSL should prevail where provisions of the local laws of the HKSAR were inconsistent with the NSL.

NSL 64 provides that in the application of the NSL in the HKSAR, the various penalties provided for in the NSL mean the corresponding penalties under local laws, or the corresponding penalties with reference to the relevant local laws. After making such comparison or reference, “fixed-term imprisonment” provided for in the NSL refers to imprisonment under the local law; “short-term detention” refers to imprisonment, detention in a detention centre or detention in a training centre under the local law; and “restriction” refers to community service or detention in a reformatory school under the local law. (HKSAR v Wong Yat Chin [2022] HKDC 1210, para. 68 (Case Summary: ET))

Art. 67(4) of the Constitution provides that the NPCSC has the function and power to interpret laws. Art. 48(2) of the Legislation Law of the PRC (“Legislation Law”) provides that the NPCSC shall interpret a law if: (a) the specific meaning of a provision needs to be further defined; or (b) after its enactment, new developments make it necessary to define the basis on which the law is to be applied.

Although the NPCSC has the power to interpret both the Basic Law and the NSL under the Constitution and the Legislation Law, the interpretation of the Basic Law is not the same as that of the NSL as the former has to comply with the provisions of BL 158 which are different from those of NSL 65. (NPCSC Answers to Media Questions on the Interpretation of NSL 14 and 47, Q&A 3) The purpose of an NPCSC interpretation is to give further clarification to the meaning of relevant provisions and to clarify the basis on which the law is to be applied when new circumstances or a new problem arises. The NPCSC does not directly get involved in judicial proceedings. Its interpretation is in the nature of legislative interpretation which forms part of the norms of the legislative system at the national level. It is different from judicial interpretation by the judicial authorities in the adjudication of cases. (NPCSC Answers to Media Questions on the Interpretation of NSL 14 and 47, Q&A 4) In exercising its power of interpretation, the NPCSC generally does not deal with a request for interpretation on whether a particular matter is consistent with the legislative intent and objectives of a law without any reference to the relevant provisions of that law. (NPCSC Answers to Media Questions on the Interpretation of NSL 14 and 47, Q&A 2)

On 28 November 2022, the CE submitted a report to the CPG pursuant to NSL 11 recommending that a request be made to the NPCSC to issue an interpretation of the NSL in accordance with NSL 65, clarifying whether an overseas lawyer who was not qualified to practise generally in Hong Kong could participate by any means in the handling of work in cases concerning offence endangering national security “based on the legislative intent and objectives of the NSL”.

On 30 December 2022, the NPCSC adopted the Interpretation of NSL 14 and 47 (L.N. 5 of 2023)¹⁰ in accordance with the provisions of Art. 67(4) of the Constitution and NSL 65. The Head of the Legislative Affairs Commission of the NPCSC explained the background, purpose, legal basis, major provisions and legal effect of the Interpretation in his answers to questions of the media on the same day (“NPCSC Answers to Media Questions on the Interpretation of NSL 14 and 47”)¹¹.

The purpose of the Interpretation of NSL 14 and 47 (2022) is to resolve a problem arising from the implementation of the NSL properly and in a timely manner, to ensure the full and faithful implementation of the NSL, to uphold the constitutional order of the HKSAR established by the Constitution and the Basic Law, and to safeguard national sovereignty, security and development interests. (Report of the Constitution and Law Committee of the NPC on the motion concerning the draft Interpretation of NSL 14 and 47, dated 30 December 2022¹²)

In Lai Chee Ying v Secretary for Justice [2023] HKCFI 1382 (Case Summary), the court admitted two expert reports on relevant Mainland law prepared by an eminent jurist on Mainland law. Reading the expert evidence together with the relevant local case law, the court arrived at the following propositions (at paras. 49-55):

By the Order of the President of the People’s Republic of China (No. 49) dated 30 June 2020¹³, President Xi Jinping gave notice that the NSL came into force on 30 June 2020. The NSL applies in the HKSAR as from 11:00 pm on 30 June 2020 by virtue of the Promulgation of National Law 2020 made by the Chief Executive of the HKSAR. See annotations to NSL 1.