(Editor’s note: The following are remarks made by Grenville Cross SC at a June 21 forum celebrating the NSL’s fifth anniversary)
Since its enactment in 2020, the Hong Kong National Security Law (NSL) has had a profound effect, notably by safeguarding the “one country, two systems” governing policy. Let me say at the outset, it has been successfully integrated into the legal system of the Hong Kong SAR, and has enabled it to progress after a chaotic period.
In 2019-20, as everybody recalls, there was a concerted effort by anti-China forces to wreck the “one country, two systems” policy, and destroy Hong Kong’s capitalist system and way of life. They received encouragement from the Five Eyes partners, who not only provided the culprits with a safe haven once the insurrection failed, but also allowed them to use their soil to plot new methods of destabilizing China.
However, whenever Hong Kong has used the extraterritorial provisions of its national security legislation to defend itself against those seeking to harm it from afar, the Five Eyes have protested, claiming that free speech justifies subversive activity. For example, after arrest warrants were issued on Dec 24, 2024, for six individuals (four UK-based) accused of committing national security offences, including inciting secession and colluding with foreign forces to harm China, the British foreign secretary, David Lammy, not only agreed to meet them and offer words of comfort, but also sought to whitewash their activities. He claimed they were only “exercising their fundamental right to freedom of expression” (March 27, 2025), which, while delusional, was not surprising.
In 2019-20, certain Western governments, realizing that if the black violence succeeded in Hong Kong SAR it would weaken China, decided to play along, at least to a degree. Earlier, in 2014, the Occupy Central disruption was planned, as the BBC reported on Oct 24 that year, “with support from abroad,” although the extent of that support only subsequently became clear. In 2020, the investigative journalist, Nury Vittachi, in his seminal treatise on the insurrection, “The Other Side of the Story: A Secret War in Hong Kong,” reported that the US-financed National Endowment for Democracy (NED) had, between 2014 and 2020, pumped HK$170 million into supporting so-called democratic activities in the Chinese mainland and Hong Kong.
The NED, described as “the CIA’s regime-change arm,” hoped to provoke chaos in Hong Kong, if not a color revolution. The recipients of its beneficence included organizations as varied as the Civil Human Rights Front, the Hong Kong Human Rights Monitor and the Demosisto party. Fortunately for everybody who loves Hong Kong, the NED’s intrigues, and those of its partners, failed, and the NSL saved the day. In consequence, Hong Kong’s capitalist system, legal order and lifestyle have survived, although Western critics have never tired of maligning the NSL, which they cannot forgive for its role in thwarting their plots.
On July 1, 2020, for example, in a knee-jerk reaction to the enactment the previous day of the NSL, the UK’s then foreign secretary, Dominic Raab, told Parliament that the NSL constituted a “clear and serious breach” of the Sino-British Joint Declaration (1984), which showed he had not read it. As national security is a matter entirely for China, the Joint Declaration said nothing about it. Indeed, if the black-clad violence and its attendant chaos had not been ended once and for all, the “one country, two systems” policy, the very essence of the Joint Declaration, could not have survived. If, therefore, Raab had Hong Kong’s best interests at heart, he should have welcomed a law designed to preserve the system so carefully negotiated between Deng Xiaoping and Margaret Thatcher.
Instead of which, Raab and the Five Eyes devised measures to hurt Hong Kong, including the use of travel advisories to deter their people from visiting Hong Kong. Had they succeeded, their advisories would have harmed the city’s tourism industry, and cost many people their jobs. Although they all participated, the most bizarre advisory was undoubtedly Australia’s Travel Advisory 4, issued on July 28, 2020. It stated bluntly “Do not travel to Hong Kong.” Australians were warned they faced not only “an increased risk of detention on vaguely defined national security grounds,” but also “possible transfer to mainland China for prosecution.” This was an extraordinary message to give to tourists and business people alike, but typical of the scaremongering that prevailed both then and now.
As in the UK, national security has always been a matter for China itself, and when Hong Kong was unable to complete the Art.23 process after 23 years, the Central Authorities were left with no choice but to step in after an insurrection broke out in 2019. Although the Five Eyes mobilized their propaganda machines to demonize the NSL, they themselves would never tolerate a situation in which their own countries were imperiled by a legal void in a particular region. While Hong Kong was entrusted to act on Beijing’s behalf in enacting national security laws on its own, the Central Authorities at no point waived their overarching responsibility to safeguard national security throughout the entire country.
The Five Eyes nonetheless sensationalized, for example, the NSL’s provision enabling the Central Government’s Office for Safeguarding National Security (OSNS) to exercise jurisdiction over cases in exceptional circumstances (Art.55), claiming it infringed Hong Kong’s high degree of autonomy. However, as national security involves the overall interests of the country and its 1.4 billion people it falls within the purview of the Central Authorities, and was never a matter within the high degree of autonomy enjoyed by Hong Kong under the Basic Law.
This is unsurprising, as it is a fundamental principle of national sovereignty. It reflects the common practice of both unitary and federal states worldwide, with local governments playing at most a supporting role. As was recognized when the Joint Declaration was signed in 1984, it is basic to the “one country, two systems” policy that the Central Authorities enjoy all the powers relating to national security in Hong Kong.
It is, therefore, wholly understandable that the OSNS has an important role to play in facilitating, supervising and supporting the city’s own efforts in safeguarding national security. Far from derogating from Hong Kong’s high degree of autonomy, it is a means of protecting the “one country, two systems” policy. Moreover, Hong Kong has exercised its own jurisdiction over all the national security trials arising since 2020. As the former justice secretary, Teresa Cheng Yeuk-wah, has explained, this “fully demonstrates the confidence and trust of the Central Authorities in the HKSAR in performing its duty to safeguard national security while respecting and upholding the spirit of “one country, two systems”.
It is certainly true that, in extremis, the OSNS, with the Central Government’s approval, can assume jurisdiction over a case, but strict criteria must first be satisfied. It can only happen if (a) Hong Kong has difficulty in handling the case because of complexities occasioned by the involvement of a foreign country or external elements, or (b) if the Hong Kong SAR Government faces a serious situation and cannot effectively enforce the Law, or (c) if a major and imminent threat to national security has arisen.
As Australia has hopefully noted, those criteria are so strict that the OSNS has not invoked this power once in the last five years. On May 13, 2025, moreover, clear procedures regulating the operations of the OSNS were gazetted, and people now know exactly where they stand whenever investigations are underway. This should be welcomed by everybody who values transparency in law enforcement.
In reality, the enactment of laws criminalizing collusion with foreign countries to endanger national security, secession, subversion and terrorist activities, has ensured that the “one country, two systems” policy can operate in the way its architects always envisaged. It can no longer be held hostage by political saboteurs and their foreign enablers. Perhaps most crucially, Hong Kong’s high degree of autonomy has been maintained, together with its capitalist system and way of life. Moreover, the criminal justice system is functioning as it should, and the rule of law is paramount. However, not everybody is happy, and there have been unremitting efforts by the Five Eyes to delegitimize the NSL.
On Jan 7, 2025, for example, Lammy’s deputy, the Indo-Pacific minister, Catherine West, condemned the NSL in the British parliament, meaning the old prejudices endure despite its manifest benefits for Hong Kong. She is a former patron of Hong Kong Watch, and she called on Beijing to “repeal the National Security Law, including its extraterritorial effect,” which was bizarre (albeit a reflection of Hong Kong Watch’s stance). Indeed, the UK, in 2023, enacted its own robust law, the National Security Act (NSA), which was not only comprehensive but also has an extraterritorial dimension.
Moreover, Britain’s NSA heavily influenced the formulation of Hong Kong’s Art.23 legislation in 2024. For example, Hong Kong’s new sabotage offence bears a remarkable resemblance to the UK’s new sabotage offence, sharing the same ambit, the same objectives and even sometimes the same terminology. The espionage provisions in both places are also not dissimilar, and the same is true of the laws criminalizing the endangering of national security through the misuse of computers or electronic systems. Instead, therefore, of maligning Hong Kong’s national security arrangements, Catherine West should be rejoicing at the impact the NSA has had upon Hong Kong’s Safeguarding National Security Ordinance (SNSO).
The critics, moreover, have given the impression that the NSL has caused thousands of people to lose their liberty, which could not be further from the truth. Since 2020, the NSL has been applied with great restraint by the police and the prosecuting authorities, with prosecutions only resulting when they are absolutely necessary, as the statistics attest.
Between July 1, 2020 and May 1, 2025, 185 persons and 5 companies were prosecuted for offences in connection with endangering national security, including under the NSL, the SNSO and the now-repealed sedition offence under the Crimes Ordinance (Cap.200). Of those, approximately 170 persons and 1 company have finished court proceedings, with most defendants convicted. On any objective analysis, these figures are not large, and nail the Five Eyes propaganda.
Moreover, the conviction rate of over 95% in national security trials shows that great care is being taken by the police in investigating national security cases. It also demonstrates that prosecutors are only authorizing prosecutions in the most meritorious cases. In Hong Kong, as elsewhere in the common law world, the judges can only convict accused persons if satisfied of guilt beyond reasonable doubt, and the conviction rate testifies to the strength of the cases they have had to try.
Indeed, the judiciary has not only asserted its independence when applying the national security laws, but also demonstrated the way forward in a common law context. As some of the laws and procedures are novel, it fell to the courts to decide how they could be accommodated within Hong Kong’s legal infrastructure, and they have more than risen to the challenge.
At an early stage, the courts explained they had no power to hold any part of the NSL to be unconstitutional or invalid because of any alleged incompatibility with either Hong Kong’s Basic Law or the Hong Kong Bill of Rights (FACC 1/2021). As a national law, the local courts lacked jurisdiction to impugn its provisions, which was logical.
The courts have also clarified that the question of whether something is “in the interests of national security” is not a legal issue but one involving judgment and policy. In consequence, as in the UK and elsewhere, the courts should defer to the views of the executive authorities, who are uniquely qualified to make such assessments (HCAL 979/2024).
In their interpretations of the NSL, the courts have always respected the rights of criminal suspects. Indeed, it is no exaggeration to say the NSL is human rights heavy. Whereas national security legislation in the United Kingdom and elsewhere says little or nothing about the rights of accused persons, the reverse is true in Hong Kong. When, therefore, Lammy, on March 23, 2025, declared that “Hong Kong’s national security infrastructure continues to impinge on the rights and freedoms of individuals in Hong Kong and elsewhere,” it was apparent that, like Raab before him, he had either not studied the NSL, or, if he had, he was bent on politicking.
At the outset, the NSL stipulates that “Human rights shall be respected and protected in safeguarding national security” (Art.4), and that “The principle of the rule of law shall be adhered to” in national security cases” (Art.5). It also provides that the fair trial guarantees embodied in the International Covenant on Civil and Political Rights (ICCPR) should be observed, together with the presumption of innocence and the right of defense (Art’s4-5). When they have adjudicated upon NSL prosecutions, the courts have often referred to these protections, as when, for example, they considered the provision which makes it more difficult for a suspect to obtain bail pending trial in a national security case (FACC 1/2021).
Although the NSL introduced a new sentencing regime with tiered penalties for national security offences, the Hong Kong Court of Final Appeal (HKCFA) has rationalized its provisions and accommodated them within existing parameters. Whereas the customary practice in Hong Kong is for the legislature to fix a maximum sentence for an offence and then leave it to the trial courts to decide whether the sentence should be high or low, depending on the aggravating and mitigating factors, the NSL stipulates precise sentencing bands.
For example, in relation to secession, a principal offender who commits a grave offence faces 10 years imprisonment to life imprisonment, an active participant faces 3 to 10 years imprisonment, and a minor figure faces up 3 years’ imprisonment. This approach is novel, but the HKCFA has helpfully explained how it should operate. It has also indicated what the impact of mitigating factors should be on sentence, and the circumstances in which an offender’s culpability can move his situation from one sentencing band to another (FACC 7/2023).
Moreover, in imposing sentences for NSL offences, the trial courts have displayed realism and common sense. Their sentences have served to underline the seriousness with which national security crimes must always be viewed. For example, after 45 anti-China activists were convicted of conspiring to commit subversion by plotting to gain control of the Legislative Council and then using it to paralyze the government and wreck the political system (31 pleaded guilty), they received sentences of imprisonment ranging from 4 years 2 months to 10 years (HCCC 69&70/2022). This sent out the clear message that condign punishment awaits anybody who tries to harm Hong Kong by endangering national security.
Although severe, the sentences imposed for national security crimes have accorded appropriate weight to mitigating factors wherever possible. And the courts have invariably achieved a correct balance. Whereas the Secretary for Justice enjoys the right to invite the Court of Appeal to increase a sentence if he considers it manifestly inadequate and/or wrong in principle, it is noteworthy he has not had to do so in a single national security case since 2020.
Another notable feature of the NSL has been its inherent flexibility, which has facilitated its assimilation into the legal system. For example, while it is harder for national security suspects to obtain bail pending trial, they can still be granted bail if there are sufficient grounds for believing further offences endangering national security will not result (Art.42). Although national security prisoners can be denied the customary remission for good behavior of one-third of their sentence, this is not automatic and depends upon a risk assessment by the Committee for Safeguarding National Security (SNSO, s.152).
Whereas, moreover, jury trials can be dispensed with in favor of 3-judge panels in national security trials in the Court of First Instance, it is not automatic and strict criteria must be satisfied (Art.46). Although the HKSAR Chief Executive has the discretion over whether to approve applications from overseas lawyers to conduct national security cases, there is no blanket ban, and each case is decided on its own merits (NPCSC Interpretation; Art.’s 14 and 47).
When the NSL was enacted, the Five Eyes, realizing the game was up, sought to punish Hong Kong. Trade preferences, for example, were revoked, officials were sanctioned and, as mentioned, travel advisories were issued to deter tourists. Dominic Raab also denounced “the effects of a law with loosely defined provisions, backed up with the threat of potentially long jail sentences and transfer of cases to mainland China for prosecution and sentencing” (June 6, 2021). This doomsday scenario was divorced from reality, as time has proved.
Although Raab has now left the scene, he will presumably be relieved to know that no cases have been transferred to the Chinese mainland for trial, that the punishments for offenders have fitted their crimes, and that anybody unhappy with their convictions and sentences can appeal against them. Far from being loosely defined, as he claimed, the four categories of offences endangering national security stipulated in the NSL clearly describe the prohibited conduct, and require both a guilty act (actus reus) and a guilty mind (mens rea). The indictments themselves are meticulously particularized, with every prosecution being evidence-based, and nobody has been convicted of violating the NSL through inadvertence.
When, moreover, the SNSO was enacted in 2024, China’s antagonists, realizing its propaganda value, resorted to Raab-speak, once again claiming the new offence provisions were loosely defined. For example, the former governor, Chris Patten, said the offences were “so vaguely defined that they allow the authorities to detain or try anyone they want on fabricated or absurd charges” (March 30, 2024). If the new offences were indeed vaguely defined, they could have been challenged in the courts, as has happened in other areas of the criminal law.
In 2002, for example, the offence of misconduct in public office (MIPO) was challenged in the Hong Kong Court of Final Appeal (HKCFA). Legal experts argued it was unconstitutional for uncertainty, and too vague and ill-drafted to comply with the Hong Kong Bill of Rights, which embodies the ICCPR (FACC 1/2002). Although the HKCFA disagreed, it is noteworthy that no similar challenges have been made to the SNSO’s offence provisions, which they certainly could have been if the accusations of legal uncertainty were anything other than crude propaganda.
On June 6, 2021, Raab also claimed that “Hong Kong’s independent judiciary is under increasing pressure,” a figment of his imagination. Rather, as the Chief Justice, Andrew Cheung Kui-nung, explained on Jan 20, 2025, the courts are not “an extension of prosecution authority,” and the system is “built on legal principles, judicial precedents and a robust structure that will continue to function”, and he should know. But we do not only have to take his word for it.
On Oct 23, 2024, the World Justice Project Rule of Law Index was published, and it also nailed Western scaremongering. Although it is well known that, out of the 142 countries and jurisdictions surveyed, Hong Kong was ranked 23rd, it is revelatory to drill down into the Index’s subsidiary findings. In the civil and criminal justice categories Hong Kong was ranked, respectively, as 19th and 21st out of 142. Even more illuminating is the sub-category, “Criminal justice is impartial,” which measures whether the criminal judges and the police are impartial and whether they discriminate. In this sub-category, Hong Kong’s global ranking was 23rd out of 142, well ahead, for example, of the UK at 39th and the US at 101st.
Although Raab, like his successors, alleged increasing pressure on the judiciary, he should have looked in the mirror. One of the main pressures the judges faced came from the British government itself (with the US later joining in). Raab, and his successor as foreign secretary, Liz Truss, made no secret of their wish for the HKCFA’s British non-permanent judges to resign. After meeting them, two of the judges, Lords Reed and Hodge, duly resigned, on March 30, 2022. Whereas Raab, by then justice secretary, announced that it was “no longer appropriate for serving UK judges to continue sitting in Hong Kong courts,” Truss said their presence was “no longer tenable.”
By any yardstick, this was extraordinary pressure for the British government to apply to independent jurists serving in a fellow common law jurisdiction. On one level, it violated what the Five Eyes partners always like describing as “the international rules-based order.” On another, it contravened the Charter of the Judge, which the International Association of Jurists adopted in 2017. In respect of the personal autonomy of judges, the Charter is unequivocal, and stipulates “No influence, pressure, threat or intervention, either direct or indirect, from any authority is acceptable.” To his credit, nobody was more appalled by Truss’ behavior than Chris Patten, a former chairman of the Conservative Party (to which both she and Raab belong). On Nov 6, 2022, at the Bridport Literary Festival, he informed the journalist Howard Davies how Truss had told the British judges sitting in the HKCFA to resign. He then added, “I thoroughly disapprove of politicians telling judges what to do,” describing Truss’ remarks as “a very damaging thing for her to have said.”
For once, Patten was spot-on. Everybody who values judicial independence should join him in condemning the Truss-Raab assault on Hong Kong’s rule of law. Their successors, moreover, have continued where they left off, and have even sought to interfere in court proceedings currently underway in Hong Kong. If that were to happen in the UK, their conduct would rightly be stigmatized as a possible attempt to pervert the course of public justice, and Chris Patten will hopefully also explain this to them.
However, like Raab and Truss before them, Lammy and West have deployed political pressure, calculated to affect the judiciary, whether directly or indirectly, to try to secure the “immediate release” of the former media magnate, Jimmy Lai Chee-ying, who is accused of endangering national security by colluding with foreign powers. Like their predecessors, they are learning the hard way that our legal system is resilient, our judiciary is independent, and our rule of law will never succumb to foreign interference.
On the NSL’s fifth anniversary, let everybody reflect upon how it has brought order out of chaos and restored decency to society. Never again will Hong Kong be exploited by those wishing to undermine China and advance the interests of its antagonists. In conjunction with the SNSO, the NSL has secured our way of life and safeguarded the “one country, two systems” policy. In consequence, Hong Kong is now able to play its full part in national development and hold its head high on the world stage.
Grenville Cross is a senior counsel and honorary professor of law at the University of Hong Kong, 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.
