Hong Kong’s National Security Law Provisions and Latest Cases

Over the past few years, the precipitous fall of Hong Kong seems to be a saga no one wants to stick around to see the ensuing episodes. Widespread censorship, crackdown on press and academic freedom, and backlash on dissenting voices are enforcing a total takeover of Beijing over the city. Xi Jinping is making clear that the special administrative region will not escape his dictatorial and authoritarian vision of government and the world. Nowhere is this repression more acute than in the Hong Kong universities that were pivotal in giving the city its internationally renowned intellectual and academic reputation. Since the passing of the infamous National Security Law in 2020, Chinese authorities seem undeterred to extinguish any opposing views, especially voices coming from academia, the media and civil society. Law schools, including faculty, students and libraries have been particularly targeted given their prominence, intellectual activity and social influence. Shamefully, HSBC and other financial institutions in Hong Kong have expressed their tacit consent to this new law, completely ignoring the impact on transparency, accountability and ethical considerations in international trade and finance. As the famous writer, Eileen Chang wrote in her renowned book, Little Reunions which takes place in Hong Kong and Shanghai, “The end of time, when seas dry up and rocks crumble, comes quick.”

In this column, I will enumerate several important aspects of the Hong Kong National Security Law and in particulation its powerful new apparatus solely created to oversee the law’s implementation. Afterwards, I will mention the three first cases that have been decided so far and some of the upcoming ones in 2022. Given the rapidly evolving situation, this column does not intend to be exhaustive. I encourage readers to add more sources in the comments section or send them directly to me. Lastly, I’d like to thank my friend and colleague, Sergio Stone, Deputy Law Library Director and Lecturer in Law at Stanford Law School for his support and help in securing sources for this column.

Provisions: What is in it?

Commonly known as the Hong Kong National Security Law, the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (L.N. 136 of 2020) was officially enacted on 30 May 2020 during one of the many COVID-19 surges in the city. The law was passed after the massive protests in 2019-2020 which saw millions of people in the streets protesting the amendments to the extradition law of criminal offenders which was perceived as silencing political dissent and extending Chinese grip on Hong Kong. Broadly speaking, the Hong Kong National Security Law outlines four crimes or offenses: secession (art. 20-21), subversion (art. 22-23), terrorism (art. 24-28) and collusion (art. 29-30).

The scope of application of the law outlines that its jurisdiction applies to any person in the special administrative region and also to anyone anywhere in the world. Overseas activists have been issued arrest warrants in the spirit of the universality of article 38 in the law. Furthermore articles 6 and 35 stipulate the required allegiance to the national security law of public servants as well as candidates to office. These new requirements significantly impacted the availability of pro-democracy candidates to run for elections during the recent 2021 legislative elections. These sham elections saw a low turnout of voters (30%) and the unsurprising win of only pro-Beijing candidates led by current HK Chief Executive, Carrie Lam.

More troubling, the law creates a separate apparatus to implement, execute and oversee its provisions. First, the Central Government in Beijing creates a powerful Office for Safeguarding National Security in Hong Kong. This office has the responsibility to supervise and watch all operations related to the new national security law in the special region. A Committee for Safeguarding National Security is also created by Carrie Lam and with a few pro-Beijing participants or people handpicked by and from Beijing. This Committee operates in close coordination and full accordance with the Central Government’s Office and they are both outside of any judicial review. Furthermore, the HK Police Department (art. 16), HK Department of Justice (art. 18) and HK Financial Secretary (art. 19) were all tasked to create separate offices within their agencies in charge of arrests, prosecution and creating a fund for expenses related to the national security law. Last but not least, article 44 gives Carrie Lam to designate judges within each court to adjudicate these cases. These judges are selected for only one year and can be removed if they make any statement or behave in a way “threatening to national security”.

Cases: So Far and Upcoming

Since its enactment, hundreds of people have been arrested under the new national security law. Furthermore, bail has been severely curtailed under the new law. Despite its recent implementation, three cases have already been decided in a little over a year and many more will be coming up in 2022.

Tong Ying-kit was the very first person sentenced under the national security law in July 2021. The 24 years-old protester and former waiter was found guilty of terrorism and inciting secession and punished to nine years in prison when he paraded around the city in his motorcycle holding a banner with a pro-independence slogan. After an initial police chase, his motorcycle later crashed into a group of police officers.

The second case brought under the national security law involved a 31 years-old activist, Man Chun-man, commonly known as Captain America 2.0. Ma was found guilty of inciting secession and sentenced to five years and nine months. Man’s case brought special attention due to the fact that it involved solely an act of speech. Ma was found guilty after chanting and displaying pro-independence slogans during peaceful protests.

And in November 2021, the latest and third case brought under the national security law found Tony Chung, a 20-years old student guilty of secession and money laundering. Chung was accused of spreading pro-independence messaging on social media and receiving donations from an activism group online. Chung pleaded guilty and was punished to three years and seven months in prison.

More cases are expected to come to the fore this coming year. As the new national security law apparatus extends its reach and cracks down on more dissenting voices, especially in the media and academia, some of the cases will include prominent leaders as well. These upcoming cases will include Jimmy Lai, a pro-democracy media leader charged with colluding with foreign agents. Mr. Lai founded the Apple Daily, one of the last pro-democracy and free media outlets in the city. Another important case involving 47 politicians, activists and professors will be coming up this year. In this case, the charges include inciting subversion after the 47 people organized a primary election among pro-democracy leaders, which the HK government deemed illegal. Among the 47 accused there is renowned law professor, Benny Tai who was fired from his faculty position at the University of Hong Kong. Among the several people arrested and yet to be charged, there is John Clancey, an American human rights lawyer.

Undoubtedly, this year will also bring more arrests and more charges. Carrie Lam and her new pro-Beijing-only legislature are wasting no time to enact a new and local national security law which will expand on the crimes and offenses to be considered “threatening” to national security. Beijing’s appetite for control, censorship and repression in Hong Kong through Carrie Lam’s puppet government have just begun.

For further reading:

Ismangil, M., & Lee, M. (2021). Protests in Hong Kong during the Covid-19 pandemic. Crime, Media, Culture, 17(1), 17-20.

Loong-Yu, A. (2020). Hong Kong in Revolt. The Protest Movement and the Future of China. Pluto Press.

Ng, M., & Wong, J. D. (Eds.). (2017). Civil Unrest and Governance in Hong Kong. Taylor & Francis.

Tai, B., Veitch, S., Hualing, F., & Cullen, R. (2020). Pursuing democracy in an authoritarian state: protest and the rule of law in Hong Kong. Social & legal studies, 29(1), 107-145.

Petersen, C. J. (2020). THE DISAPPEARING FIREWALL: INTERNATIONAL CONSEQUENCES OF BEIJING’S DECISION TO IMPOSE A NATIONAL SECURITY LAW AND OPERATE NATIONAL SECURITY INSTITUTIONS IN HONG KONG. HONG KONG LAW JOURNAL, 50, 633-656.

Yeung, C. (2020). Free Press under Threat in Hong Kong Protest Fallout. Contemporary Chinese Political Economy and Strategic Relations, 6(3), 1041-XIV.