Although the Hong Kong National Security Law (2020) and the Safeguarding National Security Ordinance (2024) are fully operational, nobody should lower their guard. National security is a work in progress, and existing arrangements sometimes require honing. If weaknesses or lacunae are detected, they must be addressed before they can be taken advantage of by bad actors.

On May 28, 2020, the National People’s Congress adopted its “Decision on National Security in Hong Kong.” In consequence, there is a constitutional duty to continue to improve the legal system and enhance the national security enforcement mechanisms in Hong Kong, which is reflected in the NSL (Art.14). It can be discharged in various ways.  

The SNSO, for example, confers upon the Chief Executive in Council the power to make subsidiary legislation (s.110). This may be done for the needs of safeguarding national security and the better implementation of (1) the NSL (including the mandate of the Central Government’s Office for Safeguarding National Security (created under the NSL’s chapter (V), (2) the SNSO, and (3) the National People’s Congress Standing Committee’s (NPCSC) interpretation of the NSL’s Articles 14 and 47, Dec 30, 2022).

If anybody contravenes the subsidiary legislation, they face up to 7 years’ imprisonment and a fine not exceeding HK$500,000.

However, the Chief Executive in Council does not enjoy carte blanche. Subsidiary legislation is subject to negative vetting by the Legislative Council, including any issued under the SNSO. The legislators may amend the subsidiary legislation, although this would only be done for good cause.

On May 12, the government announced that it was introducing subsidiary legislation ("the legislation") to better enable the authorities to safeguard national security and address threats in a complicated geopolitical situation. As the secretary for justice, Paul Lam Ting-kwok, explained, “Having regard to hostile actions taken by some foreign countries against China and Hong Kong, there’s plainly a need to ensure that our national security legal system will be perfected and put in place to address all present and potential national security risks in an effective and proper manner.”  In other words, contingency planning was contemplated, with the closure of loopholes.

On May 13, the legislation was gazetted, and took immediate effect.  Its focus is on the Office for Safeguarding National Security of the Central People's Government (“the Office”), which enjoys a specific mandate under the NSL to safeguard national security (Art.49). Although Hong Kong invariably exercises jurisdiction over national security cases, circumstances can arise when it does not.  With the approval of the Central Government, the Office may assume jurisdiction in exceptional circumstances, which are threefold (Art.55).

The first arises if the case is complicated by the involvement of a foreign country or external elements (such as interference). The second occurs if a serious situation arises which prevents the NSL from being enforced (such as intimidation). The third scenario involves the occurrence of a major and imminent threat to national security (such as insurrection).  

When NSL Art.55 was enacted, the Five Eyes partners sought, for propaganda purposes, to demonize the new power. They even issued hostile travel advisories, with Australia, for example, bizarrely warning its citizens (including holidaymakers) that if they visited Hong Kong they could find themselves being tried on national security charges in Beijing. However, five years later, the Office has not assumed jurisdiction over a single case,  which shows the power will only ever be invoked if it is absolutely necessary. In the absence of the power, offenders could escape justice altogether, which the Five Eyes would presumably welcome.

The legislation provides the Office with a mechanism to enable it to effectively discharge its mandate, and this provides procedural clarification. If cases arise requiring it to exercise jurisdiction, civil servants as well as government departments are now required to provide it with “all necessary and reasonable assistance” (and “in a timely manner”). There is also an obligation to preserve confidentiality in respect of the Office’s operations, and anybody who knows or suspects that it is handling a case is prohibited “from disclosing to any other person any information relating to that investigation without reasonable excuse or awful authority.”  

As with other law enforcement agencies, it is now an offence to resist or obstruct the Office when it is discharging its duties. Unless they have a reasonable excuse for doing otherwise, individuals are required to comply with the Office's legal instruments. Anybody, moreover, who, “acting in good faith,” assists the Office to perform its mandate will now enjoy immunity from civil liability.

In order, moreover, to minimize national security risks, notably espionage, the subsidiary legislation designates six sites used by the Office as “prohibited places” under the SNSO. The Security Bureau explained that the Office’s premises needed protection against “unauthorized acts to approach or enter such premises."  There was, however, not expected to be “any unreasonable impact on the surrounding community,” and prohibited places would be clearly marked to ensure residents did not unwittingly enter them. In any event, the authorities plan not only to provide the addresses of the prohibited places, but also to give the geographical coordinates indicating the exact areas.

However, if somebody enters a prohibited place without lawful authority, or disregards orders made by the police or guards at the prohibited places, or obstructs their duties, they may face prosecution, as happens elsewhere. For example, parallel provisions exist in the UK’s National Security Act and its Public Order Act.    

To ensure its efficacy, the legislation provides two tiers of penalties, neither unreasonable. If an offence is in the top tier of seriousness (such as providing false and misleading information or disclosing confidential information), it will attract a maximum sentence of 7 years’ imprisonment and a fine of HK$500,000. If the offence is in the lower tier (such as obstructing or resisting the Office’s work or falsely pretending to be able to influence an investigation), an offender will be liable to 3 years’ imprisonment and a fine of HK$200,000.

By contrast, the UK's penalties are sometimes draconian. For example, anybody who enters a prohibited place for a prejudicial purpose is liable, under the National Security Act, to 14 years' imprisonment and a fine, or both (s.4).

By any yardstick, the subsidiary legislation is legitimate, and grounded in common sense. It mirrors the measures adopted in other common law jurisdictions to ensure the integrity of sensitive investigations and protect particular premises. It does not alter the Office’s existing powers and, as Lam explained, it does not affect existing “human rights and freedom.”

As the government is constitutionally obliged to ensure that Hong Kong’s national security apparatus is fit for purpose, it would have fallen down on the job if it had not enabled the Office to function properly. Although there is no reason to suppose the changes are related to any particular case, the Office performs a vital role in ensuring the city's overall protection. Everybody who values Hong Kong's stability should be relieved that its protective mechanisms are being enhanced in a measured and realistic way aligned to international norms.  

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.