The proposed subsidiary legislation under Section 110 of the Safeguarding National Security Ordinance (SNSO) should be understood, under Hong Kong’s constitutional order and legal framework, as a clarification of the legal mechanism rather than an expansion of criminal liability. That distinction is fundamental.
In public discussion, legal reform is too often assessed by reference to political reaction before its juridical character is properly examined. Here, the more disciplined approach is to begin with Hong Kong’s constitutional position as a special administrative region of China, the binding effect of the Hong Kong SAR National Security Law (NSL), and the enacted structure of the SNSO. Once that legal setting is kept steadily in view, the present proposal appears as a rational and necessary step in refining how existing national security norms are identified and applied within the criminal process. In that respect, the proposal reflects a mature legal order that recognizes procedural certainty as an important component of justice.
The first point that requires emphasis is that national security under Hong Kong law is not merely a rhetorical description but a constitutional category with concrete legal consequences. The NSL and the SNSO already establish duties, institutions, and procedural arrangements to prevent and punish acts that endanger national security. The present proposal addresses a narrower but highly significant question: By what legal mechanism should a criminal case be treated as one involving an offense endangering national security under the law of the SAR, where the relevant act has been determined to involve national security? The SAR government’s answer is doctrinally coherent. Where the chief executive holds the authority to issue a binding certificate under Article 47 of the NSL or Section 115 of the SNSO to certify that the relevant conduct in a criminal case concerns national security, that case is to be treated as a national security criminal case, and the offense connected with that conduct is to be regarded accordingly. This approach gives legal precision to an issue that should never be left to uncertainty.
Properly understood, the proposed legislation strengthens legal certainty, protects institutional coherence, and confirms that the maintenance of national security is being carried out through a disciplined and intelligible legal framework rather than through improvisation
That mechanism is particularly defensible when viewed considering the institutional design of Hong Kong’s legal system. In ordinary criminal law, many issues can be resolved through conventional evidential examination and judicial determination without reference to broader constitutional assessments. National security is different because it may involve matters whose significance extends beyond the immediate facts visible in the courtroom record. The chief executive’s certification role exists because the law recognizes that certain determinations concerning national security require an authoritative constitutional judgment. That judgment is not a substitute for adjudication on guilt or innocence. Rather, it identifies the legal character of the case so that the criminal process can proceed within the correct statutory framework. A professional legal analysis must therefore resist a false opposition between executive certification and judicial independence. Under Hong Kong law, these functions are distinct but complementary. The certificate clarifies a legally relevant status; the courts continue to perform their adjudicative role in accordance with the law.
A further reason the proposal is sound lies in the need for coherence between the nature of the conduct and the legal treatment of the case. If conduct has been authoritatively certified as involving national security, it would be conceptually unstable to permit the case to be handled as though that constitutional dimension were legally incidental. Criminal law must respond to the substance of conduct, not merely to the surface form of the charge. Without a clear mechanism, similar acts could receive inconsistent treatment depending on the timing of investigations, prosecutorial drafting, or tactical characterization by parties in litigation. Such inconsistency would not serve fairness. On the contrary, it would undermine predictability, invite technical disputes detached from the public danger posed by the conduct, and create avoidable uncertainty in the administration of justice. By clarifying the legal route by which conduct involving national security is classified, the proposed subsidiary legislation promotes uniformity and enhances the law’s intelligibility.
The same commitment to substantive coherence explains the second proposed rule concerning alternative offenses in the same case arising from the same act. Under Hong Kong criminal procedure, alternative charges perform an important and legitimate function. They allow the law to accommodate evidential variation and doctrinal complexity without distorting the fact-finding process. Yet where the same underlying act has already been placed within a national security context, it would be artificial to treat an alternative offense based on that same act as though it were detached from that context. The government’s proposal rightly avoids such formalism. If a person is charged with an offense endangering national security and, in the same case and in respect of the same act, is also charged with or convicted of an alternative offense, that alternative offense should likewise be treated as an offense endangering national security. The logic is clear: The constitutional significance of conduct does not vanish merely because the final legal label adopted by the court differs from the principal count first advanced by the prosecution.
This point is not simply technical. It protects the integrity of criminal justice by preventing distortion through charge substitution. A legal system should not permit the seriousness of conduct touching national security to fluctuate irrationally because of the procedural pathway by which liability is ultimately established. If the same act remains the foundation of the case throughout, then the public character of that act must remain constant. Otherwise, the law would create a gap between factual reality and legal consequence. That gap would damage sentencing coherence, complicate procedural application, and invite strategic attempts to reframe substance as form. The proposed rule closes that gap and confirms that Hong Kong law is concerned with the true nature of conduct, not with technical opportunities for conceptual dilution.
Finally, the decision to proceed by subsidiary legislation under Section 110 is itself sound on jurisprudential grounds. Primary legislation necessarily sets out governing principles at a general level, while subsidiary legislation often provides the detailed mechanisms required for effective implementation. That is especially important in an area as sensitive and consequential as national security, where uncertainty can impair both prevention and adjudication. To use a delegated legislative power already conferred by statute to clarify procedure is entirely consistent with orthodox legal method. It demonstrates that Hong Kong’s legal system can refine its operations through lawful means while preserving fidelity to the constitutional structure. Properly understood, the proposed legislation strengthens legal certainty, protects institutional coherence, and confirms that the maintenance of national security is being carried out through a disciplined and intelligible legal framework rather than through improvisation.
The author is a solicitor, a Guangdong-Hong Kong-Macao Greater Bay Area lawyer, and a China-appointed attesting officer.
The views do not necessarily reflect those of China Daily.
