Freedom of the Press Under the National Security Law in Hong Kong - Notes

Freedom of Expression

  • Basic Law Article 27
    • Guarantees Hong Kong residents freedom of speech, press, and publication.
    • Also covers freedom of association, assembly, procession, and demonstration.
    • Includes the right to form and join trade unions, and to strike.
  • ICCPR Article 19
    • Everyone has the right to hold opinions without interference.
    • Freedom of expression includes seeking, receiving, and imparting information and ideas of all kinds, regardless of frontiers.
    • This can be done orally, in writing, in print, in the form of art, or through any other media.
    • Exercise of these rights carries special duties and responsibilities and may be subject to restrictions provided by law.
    • Restrictions are allowed for:
      • Respect of the rights or reputations of others.
      • Protection of national security or public order (ordre public), or of public health or morals.
  • BL 39
    • The provisions of the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, and international labor conventions as applied to Hong Kong shall remain in force.
    • These rights and freedoms shall be implemented through the laws of the Hong Kong Special Administrative Region.
    • Rights enjoyed by Hong Kong residents cannot be restricted unless prescribed by law, and such restrictions must not contravene the provisions of the preceding paragraph.
  • Bill of Rights Ordinance (Cap. 383), Article 16
    • Mirrors ICCPR Article 19, ensuring freedom of opinion and expression.
    • (1) Everyone can hold opinions without interference.
    • (2) Everyone can seek, receive, and impart information and ideas of all kinds, regardless of frontiers, through any media.
    • (3) Exercise of these rights carries special duties and responsibilities and can be restricted by law when necessary:
      • (a) To respect the rights or reputations of others.
      • (b) To protect national security, public order, public health, or morals.

NSL (National Security Law)

  • National law of China on Hong Kong national security passed in 2020 and implemented in Hong Kong.
  • Implemented according to BL 18, allowing Chinese laws to be enforced in HK by inclusion in Annex III of the Basic Law.
  • Formulated under the authorization of the NPC’s decision on Hong Kong national security legislation.
  • Passed by the NPCSC on June 30, 2020.
  • Establishes four crimes:
    • Secession (Articles 20-21)
    • Subversion (Articles 22-23)
    • Terrorism (Articles 24-28)
    • Collusion with foreign organizations (Articles 29-30)
  • Penalties: Up to life imprisonment.
  • Creates new governmental organizations.

Key Features

  • Office for Safeguarding National Security of the CPG of the PRC in the HKSAR
    • Chinese central government’s national security office in Hong Kong.
    • Not subject to Hong Kong jurisdiction, but under the Central Committee of the CCP.
    • Temporary headquarters: Metropark Hotel Causeway Bay building (announced July 7, 2020).
    • Additional work site: Island Pacific Hotel in Sai Ying Pun (announced April 19, 2021).
    • Permanent site: New building to be constructed at Tai Kok Tsui (announced April 23, 2021).
  • NSL Articles 12-15 (CSNS)
    • Committee for Safeguarding National Security is established.
      • Responsible for affairs relating to safeguarding national security in Hong Kong.
      • Under the supervision of and accountable to the CPG.
    • The Chief Executive (CE) is the chairperson of the Committee.
    • Decisions made by the Committee are not amenable to judicial review.
  • NSL Articles 16-17 (Police)
    • The Hong Kong Police Force (HKPF) establishes a department for safeguarding national security with law enforcement capacity.
  • NSL Article 55 (Cases Tried in Mainland)
    • The Office for Safeguarding National Security (OSNS) can exercise jurisdiction with CPG approval if:
      • The case is complex due to foreign involvement, making it difficult for Hong Kong to exercise jurisdiction.
      • A serious situation occurs where the Hong Kong government cannot effectively enforce the law.
      • A major and imminent threat to national security has occurred.
  • NSL Article 56
    • The Supreme People’s Procuratorate designates a prosecuting body.
    • The Supreme People’s Court designates a court to adjudicate.
  • NSL Article 46 (Without Jury)
    • For criminal proceedings in the Court of First Instance of the High Court concerning offenses endangering national security, the Secretary for Justice may issue a certificate directing that the case be tried without a jury.
  • NSL Article 44 (NSL Judges)
    • The Chief Executive designates judges from various courts to handle cases concerning offenses endangering national security.
  • NSL Article 65 (Power of Interpretation)
    • The power of interpretation of this Law rests with the Standing Committee of the National People’s Congress.
  • NSL Article 62 (Inconsistency)
    • This Law takes precedence where provisions of Hong Kong local laws are inconsistent with it.

Where is the Red Line?

  • NSL Article 20 (Secession)
    • Organizing, planning, committing, or participating in acts with a view to committing secession or undermining national unification is an offense, whether or not by force or threat of force.
  • NSL Article 22 (Subversion)
    • Organizing, planning, committing, or participating in acts by force, threat of force, or other unlawful means with a view to subverting state power is an offense.
Questions Arising
  • Absence of certainty/clarity on what it means to “participate”? Would publishing the views of a dissident amount to participation?
  • Participation is fact-specific: HKSAR v Chung Hon Lam [2021] HKDC 1484 held the Defendant participated by establishing the Initiative Independence Party on July 21, 2020, and administering its Facebook account. The Party declared its aim to achieve Hong Kong independence and expel “Chinese colonizers."
  • Whether by force or not by force—would include speech acts possibly?
    • The use of force or a threat to use force is not a necessary element.
    • The actus reus is the organization, planning, commission, or participation in specified acts.
    • Whether the defendant's actions qualify as specified acts is based on evidence and specific circumstances.
    • See HKSAR v Tong Ying Kit [2021] HKCFI 2200 (para. 11) and HKSAR v Chung Hon Lam [2021] HKDC 1484 (para. 18).
  • Inconsistent with right to freedom of expression?
    • HKSAR v Ma Chun Man [2020] HKCFI 3132 held that NSL 20 was “not indefensible” despite freedom of speech in BL27 and BOR 16, which aren't absolute and can be restricted.
  • NSL Article 26 (Terrorism)
    • Providing information to a terrorist organization or a terrorist, or for committing a terrorist activity; manufacturing or illegally possessing explosive, poisonous, or radioactive substances, or pathogens of infectious diseases constitutes an offense.
  • NSL Article 29 (Collusion)
    • Seriously disrupting the formulation and implementation of laws or policies by the Hong Kong Government or the Central People’s Government, likely to cause serious consequences.
    • Provoking hatred among Hong Kong residents towards the Central People’s Government or the Government of the Region by unlawful means, likely to cause serious consequences.
  • Legitimate criticisms/scrutiny of the Government would be covered under NSL 29?

Other Concerns for the Media

  • NSL Article 9 (Duties)
    • Hong Kong shall strengthen national security and prevention of terrorist activities.
    • The Government shall strengthen public communication, guidance, supervision, and regulation over matters concerning national security, including those relating to schools, universities, social organizations, the media, and the internet.
  • Absence of certainty/transparency as to how these measures will be implemented?
  • NSL Article 10 (Duties)
    • Hong Kong shall promote national security education through the media to raise awareness and compliance.
  • NSL Article 43 (Jurisdiction, Applicable Law and Procedure)
    • The Police Force department for safeguarding national security may:
      • Require deletion of information or provision of assistance from publishers or service providers.
      • Require individuals suspected of possessing relevant information to answer questions and furnish such information.
  • Does NSL 43 cover journalistic materials?
    • Lai Chee-ying v Commissioner of Police [2022] HKCFI 2688:
      • Lai challenged a national security search warrant.
      • Police confiscated phones from Lai’s home and raided Next Digital and Apple Daily.
      • Lai argued that the NSL lacks provisions to override protection on journalistic materials.
      • Judge Wilson Chan held that “specified evidence” in the NSL implementation rules covers journalistic materials (para. 14).
      • The NSL operates “separately and additionally” to the Interpretation and General Clauses Ordinance (Cap. 1), conferring additional powers to the Police (para. 13).
  • NSL Article 41 (Jurisdiction, applicable law and procedure)
    • Trials shall be conducted in open court unless State secrets or public order circumstances arise, in which case all or part of the trial shall be closed to the media and the public, but the judgment shall be delivered in an open court.
    • Inconsistent with the open justice principle and BOR 10?

Human Rights

  • NSL Article 1
    • The Law is enacted to protect the lawful rights and interests of Hong Kong residents.
  • NSL Article 4
    • Human rights shall be respected and protected.
    • Freedoms of speech, press, and publication, which residents enjoy under the Basic Law and the ICCPR, shall be protected by law.
  • Possible for the Hong Kong courts to conduct constitutional reviews?
    • See HKSAR v Lai Chee Ying (2021) 34 HKCFAR 33
      • “…the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HSKAR…are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied in Hong Kong.” (para. 37)
      • “However, that is not at all to say that human rights and freedoms and rule of law values are inapplicable. On the contrary, NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL.” (para. 42)
    • “While it is evident that the legislative intention is for the NSL 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…” (para. 29)

Safeguarding National Security Ordinance

  • Local law introduced by the Hong Kong Government on March 8, 2024; passed by LegCo on March 19, 2024; in force on March 23, 2024.
  • Enacted to implement BL 23: Hong Kong shall enact laws to prohibit treason, secession, sedition, subversion against the PRC government, theft of state secrets, foreign political bodies conducting activities in the Region, and regional political bodies establishing ties with foreign political bodies.
  • Includes five areas of national security crimes:
    • Treason
    • Insurrection, incitement to mutiny and disaffection, and acts with seditious intention
    • Theft of state secrets and espionage
    • Sabotage endangering national security and related activities
    • External interference and organizations engaging in activities endangering national security
  • Three broad concerns:
    • “Seditious intention”
    • Definition of state secrets
    • Defining “external interference.”

Re: Acts with seditious intention

  • “Seditious intentions” cover the intention to bring anyone in the city into hatred or disaffection against a state institution, the constitutional order, executive, legislative or judicial authority of the local government or to induce hatred among local residents or residents of different regions of China.
  • SJ Paul Lam and Secretary for Security Chris Tang stressed that freedom of speech will be well-protected in the Ordinance.

Re: Theft of state secrets

  • State secrets include secrets concerning “major policy decision on affairs of China or the HKSAR”; the construction of China’s national defence; the economic and technological development of China and Hong Kong; and the relationship between the central and Hong Kong governments (Section 29).
  • Unlawful acquisition, unlawful possession, and unlawful disclosure are three offenses related to State Secrets (Sections 35-37).
  • A person facing charges may invoke the defence of making “a specified disclosure”, i.e. to reveal a threat to public order, safety or health; that the government is not functioning lawfully; and where “the public interest served by making the disclosure manifestly outweighs the public interest served by not making the disclosure.” (Sections 30, 32(2), 33(2), 35(7)).

Re: External Interference

  • “External force” includes a government of a foreign country, the authority of an external place, a political party in an external place; any other organisation in an external place that pursues political ends, and an international organisation.
  • Diplomats and representatives from foreign chambers of commerce have expressed concerns over the “very broad” definitions and provisions of both state secrets and external interference, which they fear could cause serious implications for foreign citizens and businesses and diplomatic missions in Hong Kong.
  • Local and foreign media need not worry about the Ordinance?