Published: 13:51, June 8, 2024
A comparative study of HK’s SNSO and similar laws of other common law jurisdictions
By Grenville Cross

(Editor’s note: The following are remarks of Grenville Cross SC at the National Security Law Legal Forum 2024 held on Saturday.)

With the gazettal of the Safeguarding National Security Ordinance (SNSO) on March 23, 2024, the national security arrangements of the Hong Kong Special Administrative Region have been enhanced, and it has discharged its constitutional responsibility to implement the Basic Law’s Art.23. Although some pre-existing offenses have been updated, others are new, but they will all be adjudicated upon in the same way.

As elsewhere in the common law world, nobody is prosecutable unless there is a reasonable prospect of conviction on the available evidence. There must be both a guilty act (“actus reus”) and a guilty mind (“mens rea”). There will only be a conviction at trial if a suspect’s guilt has been established beyond reasonable doubt, the traditional test adopted in the United Kingdom, and elsewhere.

The UK, moreover, has influenced the SNSO in various ways. For example, the new offense of endangering national security in relation to computers or electronic systems owes much to the UK. Its Computer Misuse Act 1990 prohibits any person from doing an unauthorized act in relation to a computer if the person intends to (or is reckless as to whether the act will) cause serious damage to national security, and the act will either cause serious damage to national security or create a significant risk of serious damage to national security. In both the UK and Hong Kong, these provisions address situations where a hacker steals classified national security information, or gains control over strategic governmental electronic systems.  One difference, however, is that whereas this new offense is punishable with a maximum of 20 years’ imprisonment in Hong Kong, in the UK it can attract life imprisonment.

This type of comparison is instructive, as it shows the extent to which the SNSO is aligned with national security laws in other common law jurisdictions. This has irked the China critics, whose scope for condemnation is thereby circumscribed. Whereas, for example, the SNSO enables the police, subject to judicial oversight, to seek extended detentions of suspects while investigations are conducted, and, again with a court’s permission, to restrict a suspect’s access to a lawyer if there are reasonable grounds for believing it will endanger national security (ss.78, 79), these provisions mirror the UK’s own law. The UK’s National Security Act 2023 provides the police with the power to arrest and detain a suspect without a warrant for up to 48 hours, to ask the courts to extend the detention for up to 14 days, and then, with emergency approval, for up to 28 days. It also restricts the right of a suspect to consult a lawyer if this will interfere with an investigation (s.27).

When, therefore, the similarities between the SNSO and the UK’s National Security Act were considered by the British foreign secretary, Lord (David) Cameron, on Feb 27, 2024, he did not seek to argue otherwise. However, instead of welcoming the extent to which the UK’s legislation had influenced Hong Kong, he fell back on the line that the consultation exercise and the legislative process in the two places differed. This was a red herring, and in both jurisdictions places it is substance that counts, not process.

And the substance of the matter is that Hong Kong narrowly survived an insurrection in 2019, when concerted efforts were made by hostile forces to destroy its “one country, two system” governing policy. Therefore, like the UK, it needed to enact effective domestic national security laws to protect itself. This has now been achieved within parameters familiar to the rest of the common law world, as comparisons demonstrate. Thus, for example, the espionage provisions of the SNSO, including spying, are not dissimilar to those in the UK and elsewhere, and every country criminalizes the theft of state secrets.

Although the SNSO owes much to the UK, there are differences, at least with penalties. Whereas the offense of espionage is punishable with up to 20 years’ imprisonment in Hong Kong, the sister offense in the UK can attract life imprisonment.  In Canada and Singapore, espionage is punishable with up to 14 years’ imprisonment, in Australia the maximum is life imprisonment, while in the US an offender faces life imprisonment or the death penalty.

As regards the offense of treason, the objectives are basically the same in the laws of all six jurisdictions, involving betrayal of country. Whereas the punishment in Hong Kong, Australia, Canada and the UK is life imprisonment, in Singapore and the US the death penalty is also a possibility.  

Although it was guided by foreign paradigms, the SNSO has Hong Kong characteristics, notably regarding human rights. It is not only a domestic law but also an international law, by which I mean it reflects the objectives, practices and values of the common law world. However, unlike many other places, Hong Kong has gone the extra mile to ensure procedural fairness for criminal suspects by incorporating human rights guarantees into the SNSO’s operations, including the fair trial protections of the International Convention on Civil and Political Rights (ICCPR) (s.2).

Although the SNSO, like the National Security Law for Hong Kong of 2020 before it, is human rights heavy, its provisions have attracted adverse comment elsewhere. Its extraterritorial application, for example, has been criticized, even by countries whose own laws have the same effect. It is recognized globally that national security threats posed by bad actors based elsewhere need to be neutralized, and that a failure to do so can create existential dangers at home. Extraterritorial national security laws, therefore, provide the protections countries need from people of whatever nationality who try to harm them from their foreign sanctuaries, and their utility is widely acknowledged.

The UK’s National Security Act 2023, therefore, provided valuable guidance in this area when the SNSO was being drafted. Whereas it created new offenses, including sabotage, espionage and foreign interference, the decision was also taken to give them extraterritorial effect. It specifically provides that if those offenses are committed in a place outside the UK, the person responsible is prosecutable, whatever their nationality (s.36), and Hong Kong has followed the UK’s example. It beggared belief, therefore, that, on April 15, 2024, Lord Cameron criticized the Hong Kong authorities for “having sought to apply their national security laws extraterritorially”.

In the US, moreover, extraterritoriality is central to law enforcement. It was, therefore, remarkable that, on Feb 28, 2024, the Department of State said the US was “concerned that Hong Kong authorities will apply Article 23 extraterritorially in their ongoing campaign of transnational repression,” which was designed to “restrict the free speech of US citizens and residents.” Nobody would have been more surprised by this talk of “transnational repression” than one of its foremost victims, the Wikileaks founder, Julian Assange. He has been detained in London’s Belmarsh prison for over five years, fighting extradition to the US where he faces an uncertain fate.

The US is seeking to extradite Assange by using the extraterritorial reach of its Espionage Act 1917. An investigative journalist, he is accused of 17 offenses related to the unauthorized disclosure of information related to alleged US wrongdoing in the Afghanistan and Iraq wars. Although he is an Australian citizen who disclosed the information outside the US, he is being pursued extraterritorially in the UK, which has acquiesced in his situation. To be clear, Assange has been thrown to the wolves for publishing information in the public interest and exposing wrongdoing.    

The US exercises its extraterritorial jurisdiction through two principles of international law. Whereas the personality principle enables a state to assume jurisdiction over crimes committed elsewhere by its citizens or residents, the protective principle has the same effect in relation to individuals of whatever nationality whose activities elsewhere endanger its national interests. It is the protective principle that has been invoked against Assange, albeit in a way, to use US Department of State terminology, that amounts to “transnational repression.”

In Australia, moreover, the protective principle has been incorporated into the national security laws covering espionage and foreign interference. In Canada, it has been deployed to combat espionage and treason. It is, therefore, entirely natural that it has also been included in the SNSO. Had it not, it would have weakened Hong Kong’s ability to protect itself from malign individuals who are trying to harm it from their foreign bases.  

Indeed, examples abound of foreign models having influenced the SNSO. Again, the offense of sabotage endangering national security (s.49) bears an almost uncanny resemblance to the sabotage offense in the UK’s National Security Act 2023 (s.12). They share the same ambit, same objectives and, sometimes, even the same terminology. It is said that imitation is the sincerest form of flattery, and Lord Cameron has every reason to feel highly flattered, and he is not the only one.

In 2018, Australia introduced its own sabotage offense in its National Security Legislation Amendment (Espionage and Foreign Interference) Act. In terms not dissimilar to those subsequently adopted in the SNSO, it prohibits all forms of sabotage activities or acts introducing vulnerability against public infrastructure, with intent to (or recklessness as to whether they will) prejudice national security (ss.82.3-82.9 of the Criminal Code of Australia).

When the SNSO was initially drafted, it contained an offense of “external interference” per se. However, following a wide-ranging consultation exercise, the government decided to rename the offense as “external interference endangering national security” (s.52). This was done to put everybody’s minds at rest, and to make clear that normal international exchanges in areas like commerce, academia and culture would not be affected. The acts that constitute the offense are clearly described so there can be no misunderstandings, and, once again, foreign models influenced the drafting process throughout.

Moreover, although Hong Kong’s external interference law criminalizes acts which have an “interference effect,” and the UK’s foreign interference law criminalizes acts of “prohibited conduct,” there are significant similarities. When, for example, the Hong Kong offense explains the “improper means” of doing the act (s.55), its wording largely follows that used to define “prohibited conduct” in the UK’s parallel offense (s.15). Even the maximum penalty of 14 years’ imprisonment is the same in both places, although there is a striking difference. Whereas Hong Kong’s external interference law requires intent (s.52), the UK’s foreign interference law introduces a lower test, and a person can also be prosecuted if he is simply “reckless” (s.13), meaning it is easier to prosecute a suspect.

Inspired by the UK and Hong Kong paradigms, Canada is now also tightening up its national security arrangements. Its government is in the process of expanding the scope of its foreign interference law, and also modernizing its sabotage law by increasing the types of prohibited conduct, even extending its ambit to private infrastructure that serves the interests of Canadians. It says its proposals will fully respect human rights, which suggests the Hong Kong paradigm has been carefully studied.

Although Lord Cameron complained that the SNSO’s tougher penalties for sedition and the broad definition of state secrets would inhibit freedom of speech and of the press (Feb 28), he need not have worried. When the UK’s local government introduced the sedition law into Hong Kong in 1938 free speech was constitutionally unprotected, but no longer. Free speech is now underpinned not only by the Basic Law, but also by the ICCPR and the Hong Kong Bill of Rights. The city has a lively media environment, and, as of Dec 31, 2023, there were 90 daily newspapers and 376 periodicals operating in the city (including online publications). International media (including broadcasters) are also very well represented here, and are never afraid to speak their minds.

When the UK’s National Security Act received its Royal Assent on July 11, 2023, the Director General of MI5, Ken McCallum, was delighted.  He said: “We face adversaries who operate at scale and who are not squeamish about the tactics they employ to target people and businesses in the UK.” This is also true of Hong Kong, which unlike the UK, had direct experience of its people and businesses being targeted by black-clad mobs in 2019. He then added: “The National Security Act is a game-changing update to our powers. We now have a modern set of laws to tackle today’s threat.”  His words apply equally to Hong Kong and the SNSO.

Everybody who values the “one country, two systems” policy owes a debt of gratitude to the secretaries of justice and security, as architects, and to the leaders of the Legislative Council, as implementers, for the successful enactment of the SNSO. They have discharged their historic mission, and the country is now safer in consequence.

Grenville Cross is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.