Basic Law Committee member Priscilla Leung Mei-fun said she believes the proposed national security law for Hong Kong will not be implemented retroactively, but regardless, she cautioned that if someone is arrested for a suspected offense that can be tied to his or her past behavior, he or she will be held “criminally liable”.
During a one-on-one interview with China Daily on Wednesday, Leung, who is also a Hong Kong legislator, said Chinese laws are getting more aligned with international laws, and in most common-law jurisdictions, criminal laws don’t have retroactive effects.
However, Leung, who is also a barrister and legal academic, highlighted the element of “continuous offense”, meaning that if an offense is ongoing, the past acts of the suspected offender or offenders will also count.
On Tuesday, Hong Kong police arrested a female student of the Chinese University of Hong Kong and her boyfriend on suspicion of money-laundering HK$364 million (US$47.0 million) from October to May.
Leung explained: “If it is proved that they began receiving and laundering money since last year to create troubles in Hong Kong, it is then a continuous offense, and they will be criminally liable.”
Leung also mentioned the case of Apple Daily owner Jimmy Lai Chee-ying. Lai has said many things about separatism and Hong Kong independence. It will be a continuous offense for him unless he holds his tongue, and turns a new leaf after the passage of the national security law for Hong Kong, she said.
While the local court will have jurisdiction for most national security cases in Hong Kong, Leung believes it is proper for the central authorities to retain jurisdiction over a small number of extremely serious cases.
Given that the Hong Kong court has no experience or expertise in dealing with national security cases, if the cases involve other areas of the nation, they should be heard by mainland courts, and Hong Kong court may hear cases involving the special administrative region, but the cases need to be heard by mainland authorities if external forces are involved, Leung opined.
Leung also warned that people chanting or singing independence slogans and songs and waving independence and foreign flags in public are likely to have committed the offense of secession.
Hong Kong’s national security law will also require those who seek public office and join public service to sign a form or swear support of the Basic Law and the Hong Kong SAR. She thinks this is necessary, saying those who do not fulfill this requirement have no right to take part in public service.
She also warned that the penalty for committing national security offenses will be quite heavy, with the highest possibly being over 10 years in prison or even a life sentence.
According to the draft national security law for Hong Kong, the chief executive of the SAR has the power to choose a group of judges to adjudicate national security cases.
Leung said she believes there will be a panel of judges who are qualified to hear national security cases, with the recommendation of the chief justice of the Court of Final Appeal, for appointment by the Hong Kong chief executive, and they may perhaps need to pass integrity checks.
“It will be like the panel judges who hear interception of surveillance cases. Judges will be assigned by the judiciary, but not what the opposition camp distorts as the chief executive naming a particular judge to hear a particular case,” she said.
“At present, all judges are, based on recommendation by the Judicial Officers Recommendation Commission, appointed by the chief executive. This is nothing new or strange or what the opposition smears as something that undermines judicial independence. In the United States, judges are also appointed by the president of the US.”
