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Friday, June 19, 2020, 02:10
National Security Law must have real teeth to catch big fish
By Tony Kwok
Friday, June 19, 2020, 02:10 By Tony Kwok

From my experience as an international anti-corruption consultant, I can confirm that while many anti-corruption agencies were able to catch some corrupt offenders, they failed to win the pivotal war against the pervasive corruption culture in their respective countries due to their inability to catch the “big fish”, or “big tigers” as they are called on the Chinese mainland. This is usually due to their shortage of high-level professionalism in the field backed by the associated legislative tools. The result is that while some low-level corrupt offenders are brought to justice, the masterminds are left untouched to continue indulging in serious acts of corruption.

There is no question, if we are not careful, that the same might be said one day in the implementation of the national security law. There is no doubt that in the 23 years after unification, the secret agents from CIA, MI5, MI6 and other countries have been actively operating in our midst, indeed perpetuating Hong Kong’s unenviable reputation for being one of the espionage hotbeds of the world, thanks to our strategic geo-political location. Take for example when at the height of the riots last year, the media reported that there were some expatriates directing the “black shirts” at the scene of violent clashes with police. It is clear they are well-trained secret agents who can run circles around any local police. Unfortunately, our relevant expertise that can counter these subversive operatives was dismantled along with the Special Branch, which was disbanded 24 years ago. We need to have such counter-intelligence capability restored and embedded in the National Security Bureau.

Hence it is only right, as pointed out by Deng Zhonghua, deputy director of the Hong Kong and Macao Affairs Office of the State Council, in his address at an international seminar organized by the Chinese Association of Hong Kong & Macao Studies held in Shenzhen on June 15, that while the major responsibility for enforcing the national security law rests with the SAR government following the promulgation of the law, the central government must retain jurisdiction over some special cases where national security is critically compromised, but add that such cases will be few and far between.

Such an arrangement is both logical and conforms with international law and practice. As the Ministry of State Security of the People’s Republic of China (MSS) has the statutory responsibility for the national security of the country, there is no reason why it cannot play a role in the SAR, especially in cases posing an imminent threat to the central government.

Also, as pointed out by Deng, an effective enforcement mechanism with real powers should be specified in the legislation to deter acts endangering national security. I cannot agree more as indeed this is the key factor in the success of the Hong Kong Independent Commission Against Corruption (ICAC), which is now regarded as a world model for having turned Hong Kong from one of the most corrupt places on earth to one of the most corrupt-free jurisdictions. The ICAC should serve as an excellent template for any future mechanism tasked with ensuring our national security.

First, we need to start with a robust organizational structure. The ICAC has over 1,400 staffers consisting of many professional units: A well-equipped and fully manned surveillance unit, a sophisticated intelligence gathering & analysis unit, an undercover agents and informers unit, a forensic accounting unit consisting of professional accountants dealing with asset tracing and money trails, a computer forensic unit capable of breaching any computer password barriers, etc. The proposed police national security unit should have no less than that. Indeed, the Special Branch of the then-Royal Hong Kong Police Force was said to have a staff of over 3,000 at its peak.

Second, it should be invested with unambiguous investigative powers. References can be drawn from the Prevention of Bribery Ordinance, which provides the investigative power for ICAC to investigate corruption offenses. Section 13 authorized the ICAC commissioner to issue written demands to banks and financial institutions to provide all information on any target persons. Such power dispenses with the need for judicial warrants and is essential in checking money trails. Section 14 allows a notice to be issued to witnesses who are believed to have information relevant to the investigation to come to the ICAC office and answer questions under oath, essentially overriding the witnesses’ right to silence. The same section can require any suspect to provide full accounts of their financial affairs and transactions and freeze their assets. Section 17 authorized ICAC to conduct searches of any premises subject to a magistrate’s warrant but allow searches to be conducted without court warrant in emergency situations.

Like corruption, national security offenses are often secret crimes requiring a corresponding secret investigative capability to combat them. This should include the power to intercept various forms of communication. For Special Branch, the authorization to intercept must be obtained by its head from the governor. After 1997, the authority for interception was transferred to the judiciary and they are subject to annual audits by an appointed High Court judge as Commissioner on Interception of Communications and Surveillance, who publishes an annual report for the Legislative Council. In view of the sensitivity of the national security cases, I propose that interception warrants should be obtained from the chief executive, but in the interest of public accountability, be available for scrutiny by the commissioner of interception of communication in his annual audit.

Hong Kong can follow the example of Macao in setting up a high-powered steering committee on national security, to be chaired by the chief executive. It would make good sense to include in its membership the heads of various key law enforcement agencies, such as Customs, Immigration, ICAC, as well as the Inland Revenue Department. These agencies can apply their expertise and legal powers to bear in the enforcement of the national security law.

In view of the current aberrant predicament in the judiciary where many of its  judges appear to be biased in favor of anti-establishment activists and politicians, a special court with judges known for their independence is absolutely necessary to ensure the successful implementation of the national security law; otherwise, we will continue to witness the current farce of “police arrest, judges release” being played out continuously.

While I agree that the law should not be enforced retroactively for ordinary citizens, I feel that in the unique Hong Kong situation as a result of prolonged violent social unrest, I would recommend conditional retroactive enforcement for serious offenses involving conspiracy with external powers. We cannot afford to let those who masterminded 13 months of street violence and property destruction in collusion with foreign powers which brought our society to the brink of total breakdown to get away scot-free because to do so would mean planting the seeds of future unrest

Hong Kong’s success in combating corruption is largely due to its having achieved great early successes. This came with the prompt extradition of the corrupt chief superintendent of police, Peter Godber, from the United Kingdom and other cases involving the prosecution of expatriate senior officials. ICAC, thus demonstrated the government’s political will, which itself is a strong deterrence. It carries the unmistakable message that regardless of the social, economic and political status of the culprits, they will all be dealt with the full force of the law. The various prominent personalities incarcerated for corruption proves beyond doubt that the ICAC is no paper tiger. Therefore, once the national security law is passed, an “operation thunderbolt” should be promptly mounted to arrest the few “big fish” of the separatists and the independence movement, as well as some active CIA and MI5 agents. This would deliver an indubitable warning to all foreign powers that their days of interfering in Hong Kong’s internal affairs with impunity are over!

The author is an adjunct professor of HKU Space, and a council member of the Chinese Association of Hong Kong & Macao Studies. He is also the retired deputy commissioner of the ICAC and currently an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily.

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