The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKSAR National Security Law) was gazetted on 30 June 2020 and took immediate effect on the same day. The full text of the HKSAR National Security Law can be found at https://www.gld.gov.hk/egazette/pdf/20202444e/cs220202444136.pdf (Chinese only). An English translation of the HKSAR National Security Law can be found at http://www.xinhuanet.com/english/2020-07/01/c_139178753.htm (for reference only).
In this alert, we highlight six key areas of the HKSAR National Security Law :-
(I) A summary on the four categories of offences enacted under the HKSAR National Security Law
The HKSAR National Security Law stipulates the offences under four categories (Offences) in Articles 20 to 30, which specify the elements of each offence and the relevant penalties:
Secession [Article 20]
Anyone shall be guilty of an offence if they organise, plan, commit or participate in the acts of (1) separating the Hong Kong Special Administrative Region (HKSAR) or any other part of the People’s Republic of China (PRC) from the PRC, (2) altering by unlawful means the legal status of the HKSAR or of any other part of the PRC or (3) surrendering the HKSAR or any other part of the PRC to a foreign country, whether or not by force or threat of force, with a view to committing secession or undermining national unification.
Penalties for Secession include life imprisonment, fixed-term imprisonment, short-term detention or restriction, depending on the level of involvement.
Subversion [Article 22]
Anyone shall be guilty of an offence if they organise, plan, commit or participate in any of the acts of (1) overthrowing or undermining the basic system of the PRC established by the Constitution of the PRC, (2) overthrowing the body of power of the PRC or the HKSAR, (3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of power of the PRC or the HKSAR, or (4) attacking or damaging the premises and facilities used by the body of power of the HKSAR to perform its duties and functions, by force or threat of force or other unlawful means with a view to subverting the State power
Similarly, penalties for Subversion include life imprisonment, fixed-term imprisonment, short-term detention or restriction, depending on the level of involvement.
Terrorist Activities [Article 24]
Anyone who shall be guilty of an offence if they organise, plan, commit, participate in or threaten to commit the terrorist activities which include: (1) serious violence against a person or persons, (2) explosion, arson, or dissemination of dangerous substances, (3) sabotage or serious interruption of infrastructures, public service facilities and transportations, and (4) other dangerous activities which seriously jeopardise public health, safety or security, causing or intended to cause grave harm to the society with a view to coercing the Central People’s Government (CPG), the Government of the HKSAR or an international organisation or intimidating the public in order to pursue a political agenda
Moreover, a person shall be guilty of an offence if they: (1) organise or take charge of a terrorist organisation, (2) aid and abet the terrorism activities or (3) advocate terrorism or incites the commission of a terrorist activity
The penalties for committing terrorist activities include life imprisonment, fixed-term imprisonment, short-term detention, restriction, criminal fines and confiscation of properties. These penalties will vary according to the consequences caused by the Offence, the roles played in the commission of terrorist activities and the level of involvement.
Collusion with a Foreign Country or with External Elements to Endanger National Security [Article 29]
Anyone shall be guilty of an offence if they steal, spy, obtain by payment, or unlawfully provide State secrets or intelligence1 concerning national security for a foreign country or an institution, organisation or individual outside the Mainland PRC, the HKSAR and the Macao SAR (External Element).
Anyone shall be guilty of an offence if they: (1) request, (2) conspire with, or (3) directly or indirectly receive instructions, control, funding or other kinds of support from a foreign country or an External Element to commit any of the acts of (1) waging a war against the PRC or using or threatening to use force to seriously undermine the sovereignty, unification and territorial integrity of the PRC, (2) seriously disrupting the formulation and implementation of laws or policies by the Government of the HKSAR or by the CPG, which is likely to cause serious consequences, (3) rigging or undermining an election in the HKSAR, which is likely to cause serious consequences; (4) imposing sanctions or blockade, or engaging in other hostile activities against the HKSAR or the PRC; or (5) provoking by unlawful means hatred among Hong Kong residents towards the CPG or the HKSAR Government, which is likely to cause serious consequences,
The External Element, shall also be convicted and punished for the same offence.
The penalties for collusion varies from life imprisonment to fixed-term imprisonment, depending on the level of involvement.
(II) Areas of particular relevance for the business sectors
For the purpose of carrying out business activities in the HKSAR, companies, organisations and individuals are advised to pay special attention to the pecuniary or other financial assistance or property they provide to others to ensure that such assistance will not be used for the acts and/or activities which would endanger the national security.
It is stipulated under the HKSAR National Security Law [Article 21 and Article 23] that whoever incites, assists in, abets, or provides pecuniary or other financial assistance or property for the commission by other persons of the offences of Secession and Subversion shall be guilty of an offence. If the circumstances of the offences are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.
Similarly, under Article 26, whoever provides support, assistance or facility such as training, weapons, information, funds, supplies, labour, transport, technologies or venues to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses hazardous substances or uses other means to prepare for the commission of a terrorist activity.
If the circumstances of the offence are of a serious nature, the offender shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years, and shall be imposed with a criminal fine or subject to confiscation of properties; in other circumstances, the offender shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine.
(III) The Offences can be committed by incorporated or unincorporated bodies
Pursuant to Article 31 of the HKSAR National Security Law, incorporated or unincorporated bodies, including but not limited to companies and organisations, can be held criminally liable under the HKSAR National Security Law. Convictions will result in the following criminal penalties:-
- Criminal fines;
- Suspension of operations;
- Revocation of licences or business permits;
- Confiscation of unlawful proceeds, funds and tools used or intended to be used in the commission of the Offences.
It is noteworthy that, under the Criminal Law of the PRC, the person in charge and other personnel(s) who are directly responsible for the crimes which can be committed by a corporate body shall also bear criminal responsibility. The HKSAR National Security Law, however, does NOT have such an equivalent or similar provision.
(IV) Compliance with the Principle that the HKSAR is part of the PRC
Article 2 of the HKSAR National Security Law clearly stipulates that Article 12 and Article 123 of the Basic Law of the HKSAR are the fundamental provisions of the Basic Law of the HKSAR; any institution, organisation and individual, when exercising their rights and freedoms, must NOT violate these two articles.
This article imposes an obligation on companies and organisations conducting business in the HKSAR that they shall accept the HKSAR's status is as that stated in Article 1 and Article 12 of the Basic Law of the HKSAR and must not act against that principle.
(V) Scope of application of the HKSAR National Security Law
The HKSAR National Security Law stipulates a very wide scope of application [Articles 36 to 38]. It applies to:-
- any person or body commits any of the Offences within the territory of the HKSAR. A crime is deemed committed within the HKSAR territory when an act constituting any of the Offences or the consequence of the Offences occurs in the HKSAR territory;
- HKSAR permanent resident(s) or incorporated or unincorporated bodies established in the HKSAR who commit any of the Offences outside the HKSAR territory; and
- Non-permanent residents of the HKSAR who commit any of the Offences against the HKSAR outside the HKSAR territory.
(VI) Jurisdiction of the Office for Safeguarding National Security of the CPG in the HKSAR
The Office for Safeguarding National Security of the CPG, under specified circumstances, can exercise jurisdiction over cases concerning the Offences under the HKSAR National Security Law subject to the approval of the CPG.
The specified circumstances are:
- the case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the HKSAR to exercise jurisdiction over the case;
- a serious situation occurs where the HKSAR Government is unable to effectively enforce the HKSAR National Security Law; or
- a major and imminent threat to national security has occurred.
In the above situations, the Office for Safeguarding National Security of the CPG, the Supreme People’s Procuratorate of the PRC and the Supreme People's Court of the PRC will each fulfil the role of investigation, prosecution and adjudication. The Criminal Procedure Law of the PRC and other relevant laws will be applied.
In short, in situations where Article 55 of the HKSAR National Security Law applies, the case will be handled in accordance with the PRC laws.
1 Intelligence is defined to mean "matters which relate to national security and interests and which has not been made known to the public or should not have been made known to the public in accordance with relevant regulations" with reference to a judicial interpretation of the Supreme Court of the PRC
2 Article 1 of the Basic Law of the HKSAR
The Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China.
3 Article 12 the Basic Law of the HKSAR
The Hong Kong Special Administrative Region shall be a local administrative region of the People's Republic of China, which shall enjoy a high degree of autonomy and come directly under the Central People's Government.