
The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, commonly referred to as the Hong Kong National Security Law (“HKNSL”), was passed by the Standing Committee of the 13th National People's Congress on June 30, 2020. On the same day, it was incorporated into Annex III of the Basic Law of the Hong Kong Special Administrative Region as a national law, and subsequently promulgated and implemented in Hong Kong.
Legislative Background
In February 2018, a young Hong Kong man named Chan Tong Kai (“Chan”) murdered his girlfriend, Poon Hiu-wing Amber, in Taiwan and disposed of her body in a suitcase in New Taipei City. Since Chan had already returned to Hong Kong, the Hong Kong police were unable to charge him with murder, sparking public outcry. This case revealed a legal loophole in Hong Kong's judicial cooperation with Taiwan, despite Hong Kong having long-term extradition agreements with 20 other countries. However, due to the "One China" principle, the Hong Kong government also included mainland China in the scope of the proposed amendments to the Fugitive Offenders Ordinance. This meant that, if passed, Hong Kong residents could potentially be extradited to mainland China. The government claimed that the proposed amendment aimed to address the loophole and prevent Hong Kong from becoming a "haven for fugitives."
By mid-2019, widespread protests erupted against the proposed amendments. Many pro-democracy figures in Hong Kong expressed distrust of the mainland Chinese judicial system, leading to political deadlock and mass protests, including marches, rallies, sit-ins, singing, chanting slogans, strikes, non-cooperation movements, road blockades, vigilante justice, arson, and the destruction of shops and public facilities.
In response, General Secretary of the Chinese Communist Party and Chairman of the Central Military Commission Xi Jinping emphasized the need to "stop violence and restore order," prompting the Standing Committee of the National People's Congress to pass the Hong Kong National Security Law.
The Hong Kong National Security Law
The HKNSL addresses the prevention, suppression, and punishment of four types of criminal activities occurring in Hong Kong:
Secession
Subversion
Organisation and preparation of terrorist activities
Collusion with a foreign country or with external elements to endanger national security in relation to the HKSAR
The law also specifies the criminal liabilities associated with such acts.
Scope of the Law
The HKNSL stipulates that acts constituting crimes under the law are punishable regardless of whether they are committed in Hong Kong or whether the perpetrators are permanent residents of Hong Kong.
HKSAR v. Tong Ying Kit [2021] HKCFI 2200; [2021] 5 HKC 100
The case of Tong Ying Kit was the first prosecution under the Hong Kong National Security Law. Tong had participated in protests against the proposed amendments to the Fugitive Offenders Ordinance. On 1st July, 2020, the day the HKNSL came into effect, demonstrators staged a march on Hong Kong Island. At around 1:30 PM, a crowd gathered in the vicinity of Paterson Street, Causeway Bay. Tong was seen riding a motorcycle displaying a flag that read "FREE HONG KONG, REVOLUTION NOW (光復香港,時代革命)" and charged into a police cordon, injuring at least three officers. He was subsequently charged under the HKNSL with two offenses: "incitement to secession" (Articles 20 and 21) and "terrorist activities" (Article 24). Additionally, an alternate charge of dangerous driving causing grievous bodily harm was laid in relation to the second offense. At the request of the Department of Justice, the trial was held without a jury at the Court of First Instance, presided over by three judges, setting a precedent in Hong Kong's judicial system.
In the written judgment, the court held that under Article 21 of the HKNSL, Tong's incitement to secession constituted a "serious nature" offense. The prosecution argued that the slogan " FREE HONG KONG, REVOLUTION NOW " was a call for Hong Kong's independence from mainland China, while the defense contended that its meaning was ambiguous. The court held that, although the defendant acted alone and did not convey any specific plan to the public, the slogan was a general call for Hong Kong's separation from the People's Republic of China. The court also noted that Tong's actions were "premeditated," as evidenced by his "detour route" and "deliberate challenge" to the police cordon. The motorcycle was described as a "deadly weapon". The court remarked that it was "fortunate" the injuries sustained by the police officers were not more severe. Tong was sentenced to nine years imprisonment.
October 2024 Dr. Anthony Lai and Mr. Herbert Kwoon
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