On Aug 19, Andy Li Yu-hin and Chan Tsz-wah pleaded guilty to conspiring to collude with foreign forces, Jimmy Lai Chee-ying, Mark Simon and Linn Lau to endanger national security. 

The prosecution said that from June to August 2019, Li organized crowdfunding and engaged in international lobbying calling on various countries to condemn Beijing, the Hong Kong Special Administrative Region government and its police force, as well as to sanction central government and SAR government officials under instructions from Lai and his top aide, Simon. In July 2020, Li engaged British politician Luke de Pulford and Japanese parliamentary members in persuading 32 countries to terminate extradition agreements and mutual legal assistance with Hong Kong. These lobbying activities ended in February.

The trial of Li and Chan has closed the door to any lingering doubt as to whether the National Security Law for Hong Kong is a necessary piece of legislation to safeguard national security and maintain political stability in Hong Kong. It is no more realistic, and no less foolish, to expect that Hong Kong could rely on its existing pre-NSL statutes to effectively lay collusion charges against Li and Chan for colluding with a foreign country or with external forces to endanger national security. Nor does the Hong Kong SAR government have the political will and determination to bring all the defendants to justice.

To discharge its constitutional duty under Article 23 of the Basic Law, the Hong Kong SAR government published the National Security Bill on Feb 14, 2003. Contrary to the argument that the existing laws were sufficient to protect public order and State interests, Elsie Leung Oi-sie, the then-secretary of justice, reminded us that existing laws should be amended for fear that a knife would be placed over our heads. She was correct.

The first proposal covered six major offenses; namely, treason, secession, sedition, subversion, theft of State secrets, and prohibiting foreign political organizations from unduly influencing the local political process. But a big legal loophole existed because of the lack of a specific offense targeting collusion with foreign forces to endanger national security. Unable to navigate its way out of the mass protest from without and criticism from within, the Hong Kong SAR government had no choice but to withdraw the National Security Bill and abort the legislative process on Sept 5, 2003.

Collusion with foreign forces or external elements to endanger national security might not have been regarded as a foreseeable threat within the contemplation of the law draftsmen in the early 2000s ... Later, it became a full-blown threat to national security when Lai (Chee-ying) plotted an anti-China campaign to attract international sanctions, a blockade and other hostile activities against Beijing and the Hong Kong SAR government in the summer of 2019 

The offense of subversion was reintroduced in the final amendment of Article 23 of the Basic Law following the Tian’anmen incident in 1989 because the central government was deeply concerned that Hong Kong might be used as a base for overturning China’s political system by domestic and overseas hostile forces. Under the National Security Bill, a new Section 2A was proposed to be introduced into the Crimes Ordinance to safeguard national security.

The proposed subversion provision is as follows:

A person commits subversion if he: (a) disestablishes the basic system of the People’s Republic of China as established by the Constitution of the People’s Republic of China; (b) overthrows the Central People’s Government; or (c) intimidates the Central People’s Government by using force or serious criminal means that seriously endangers the stability of the People’s Republic of China or by engaging in war.

It is worth noting that the proposed subversion provision defines “serious criminal means” in a restrictive manner. There is no mention of collusion with foreign forces to endanger national security.

Collusion with foreign forces or external elements to endanger national security might not have been regarded as a foreseeable threat within the contemplation of the law draftsmen in the early 2000s. Nevertheless, it has become a less-obvious but no less serious threat to national security since the “Occupy Central”, or “Umbrella Movement”, in 2014. Later, it became a full-blown threat to national security when Lai plotted an anti-China campaign to attract international sanctions, a blockade and other hostile activities against Beijing and the Hong Kong SAR government in the summer of 2019. All these subversive activities allowed the United States to stand on “moral grounds” to launch a propaganda coup against China at a time when its trade and technological conflicts with China dominated the global headlines.

Threatened far more by Lai’s attempts to invite American “humanitarian intervention” in Hong Kong’s social unrest in the summer of 2019 than by the actual economic harm brought about by American sanctions, Beijing had no choice but to prevent Lai’s collusive activity from becoming a Trojan horse to destabilize China and its Hong Kong SAR. Hong Kong had a sacred duty to eliminate the above threat for the purpose of safeguarding national security.

According to the prosecutor, Lai and Simon, the puppet masters of Li and Chan, had a four-stage lobbying plan to destabilize China. First, they informed foreign countries of Hong Kong’s situation. Second, they appealed to the international community. Third, they brought the ideas of foreign officials back to Hong Kong. Finally, they met foreign consultants and political advisers so as to influence their policies toward China. Their ultimate aim was to cause “administrative and economic turmoil” in China.

The above subversive plot is more terrible than words could express. When the defendants and their puppet masters colluded with some hostile foreign forces to destabilize China, international politics of the most vicious kind had been brought into play against China. One example was an all-out containment policy adopted by the Trump administration to weaken China. At this critical juncture, everyone in Hong Kong should do his or her utmost to safeguard national security. But we lacked effective laws in our legal toolbox. The NSL has been predicated on the perceived necessity of filling a gap that was left open by the failure of the Hong Kong SAR government to enact national security legislation under Article 23 of the Basic Law in 2003. 

Junius Ho is a Legislative Council member and a solicitor. 

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and co-founder of the Hong Kong Coalition.

The views do not necessarily reflect those of China Daily.