Editor’s note: The following are remarks by Grenville Cross SC at Zhongnan University of Economics & Law, Wuhan, on Oct 29.
I am most grateful for the invitation to address you today. Many of you will have heard of Hong Kong’s national security laws, although you may not be familiar with their detailed provisions. They exist to protect not just Hong Kong but the entire country, and they are therefore comprehensive. The Hong Kong National Security Law (NSL) and the Safeguarding National Security Ordinance (SNSO) contain various laws, and I cannot cover them all today. However, what I propose to do is to place some of the principal laws in a comparative context, to explain some that have attracted criticism in the West, and to share some perspectives of my own.
At the outset, let me place Hong Kong’s national security responsibilities in their overall context. The People’s Republic of China (PRC) is a unitary state, and safeguarding national security is an obligation of the central government, and also a duty of local governments. Like all the people of China, Hong Kong people have a common responsibility to safeguard the sovereignty, unification and territorial integrity of the PRC. If one looks at the PRC Constitution, Chapter II, entitled “Fundamental Rights and Obligations of Citizens”, the obligations of Chinese citizens with regard to safeguarding national security are identified. Whereas, for example, Article 52 provides that citizens of the PRC shall have the obligation to safeguard national security and solidarity of all the country’s ethnic groups, Article 54 states that PRC citizens shall have the obligation to safeguard the security, honor and interests of the motherland.
In Hong Kong, “national security” is defined in the same way as it is in Article 2 of the National Security Law of the PRC. In both places, it refers to “the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security”.
As I will seek to show, much of the foreign criticism has been ill-informed and hypocritical, and every attempt has been made to place Hong Kong in the worst possible light. The attempts to demonize our laws have often been led by people who wish China ill, many of whom still regret the failure of the insurrection of 2019-20. Although they invariably have sophisticated national security arrangements of their own, they delight in misrepresenting Hong Kong’s laws, even though some of its laws are actually modelled on theirs.
Anybody who reads overseas commentaries about Hong Kong will know how efforts are regularly made by its critics to diminish our legal system, of which the national security regime is only a part. For example, when the Courts issue judgments they dislike in national security or public order cases, the Western critics claim they are doing what the Communist Party of China expects of them. When the Department of Justice prosecutes people suspected of those crimes, it is accused of dancing to Beijing’s tune. When the police force investigates crimes affecting national security, it is condemned for clamping down on the basic rights of residents. These fallacies are constantly regurgitated in foreign parliaments and media, and those responsible undoubtedly believe that if they can undermine global confidence in the city’s rule of law it will harm China, which is their ultimate objective.
To understand where we are today, I need to provide some historical context.
Sino-British Joint Declaration.
As we saw on Monday, China and the United Kingdom signed the Sino-British Joint Declaration on Hong Kong in Beijing in 1984. At its heart was the agreement that after the reunification Hong Kong would operate under Deng Xiaoping’s “one country, two systems” governing policy. Although the Joint Declaration covered numerous areas, including finance, law and trade, it said nothing about Hong Kong’s future national security arrangements, for good reason. As the UK prime minister, Margaret Thatcher, realized, these were a matter for China alone, not the UK. Just as British national security is entirely a matter for the UK, so also is Chinese national security entirely a matter for China, and Thatcher never suggested otherwise when the Joint Declaration was being negotiated.
However, many years later, long after Thatcher had left the scene, her successors, including Boris Johnson, Liz Truss and Rishi Sunak, accused China of breaching the Joint Declaration when national security legislation was adopted in Hong Kong. This could not have been further from the truth, as the Joint Declaration recognized that the topic was outside its scope. However, China’s approach to the issue was extraordinary, and let me explain why.
Basic Law
In 1990, as we have seen, the National People’s Congress enacted the Basic Law of the Hong Kong Special Administrative Region. It incorporated the principles of the Joint Declaration, indicated in detail how Hong Kong would operate, and expanded upon the bare bones of the Joint Declaration. It addressed national security in the future HKSAR, providing that the Region “shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government or theft of state secrets” etc., BL Art.23). This was a remarkable concession by Beijing, and it demonstrated huge faith in the future HKSAR.
In every country of which I am aware, it is the national parliaments that enact national security laws, not regional assemblies. This is because there is always a national plan, applicable throughout the country. In the United States, for example, it would be unthinkable for any entity other than its Congress to decide upon national security issues, and the power is never delegated to individual states. However, the Central Authorities recognized that because national security is a highly sensitive issue and Hong Kong people were unfamiliar with national legislation, it might cause alarm if the PRC’s own National Security Law were to be extended to Hong Kong in 1997. To allay concerns, therefore, they decided to trust Hong Kong to enact national security laws “on its own”, in its own good time, and in a way that suited its own circumstances. It trusted the Macao SAR in the same way, but in Hong Kong the implementation proved to be almost impossible, at least initially.
Despite its best efforts, Hong Kong, unlike Macao, was unable to discharge its national security obligations. In 2003, when the HKSAR government brought forward its relatively mild national security proposals (Art.23), Beijing-hostile elements whipped up concerns, which were fanned elsewhere, including by the last governor, Chris Patten. In response, the government made over 50 amendments to its proposals, and produced three different drafts, but to no avail. After street protests and internal dissension, the government felt obliged to withdraw its proposals.
What this meant, therefore, was that there was a void at the heart of Hong Kong’s defensive network. Unlike the other common law jurisdictions, Hong Kong lacked essential national security protections. Although this did not matter too much initially, it created huge problems down the line, as the world saw in 2019-20, when black-clad subversives and foreign agents tried to wreck the OCTS policy. In consequence, Hong Kong became China’s Achilles heel, and was a base for those wanting to undermine Beijing.
Public disturbances
After the insurrection erupted in 2019, the authorities did their best to hold the line. However, they lacked the tools they needed to comprehensively defend Hong Kong from those who wanted to destroy the “one country, two systems” policy, most notably in the areas of secession, subversion and terrorist activity. The horrors that unfolded in our home city must never be forgotten, and nobody and nothing was safe from the anti-China forces.
To provoke Beijing, the insurgents fire-bombed its representative offices in Hong Kong, burned the national flag, proclaimed that “Hong Kong is not China”, attacked Chinese nationals from elsewhere in the country, and invited foreign intervention in the city’s affairs. They attacked the police on the streets, and also the police family quarters, terrorizing women and children. Not surprisingly, many people wondered if the “one country, two systems” policy could survive.
Quite clearly, those orchestrating the violence hoped to provoke a military response, as they knew that this would end the “one country, two systems” policy and humiliate China. However, Beijing refused to fall into their trap. Although it was initially left to the police, the prosecutors and the judges to maintain the rule of law, it became increasingly apparent that they lacked the means of doing so indefinitely, and something had to be done. As Beijing ruled out a military intervention it decided to provide Hong Kong with the means of protecting the city from those who wished to wreck it, wheresoever based.
The violence in Hong Kong in 2019-20 highlighted the urgent need to legislate to safeguard national security. Therefore, at its third session of May 28, 2020, the 13th NPC made the “Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms of the HKSAR” (528 Decision) and entrusted its Standing Committee to formulate the relevant laws on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security. The 528 Decision was constitutional and legitimate, and I say that because Articles 31 and 62(14) of the PRC Constitution expressly empowered the NPC to establish the HKSAR and then to prescribe the system to be instituted in it.
National Security Law for Hong Kong SAR (2020)
Once the Central Authorities enacted the NSL on June 30, 2020, it was promulgated the same day by the government. With its enactment, the tide turned and Hong Kong was saved. Although the social disturbances were traumatic, they showed everybody why national security laws were vital if the “one country, two systems” policy was to survive. With the NSL’s enactment, Hong Kong acquired much-needed laws to combat secession, subversion, terrorist activities and collusion with foreign entities to endanger national security.
However, once the NSL was enacted, the Five Eyes partners and their proxies reacted with fury. They knew it was the end of the insurrection they had supported, and the US led the charge. They tried to harm Hong Kong and its people in various ways. The US imposed sanctions on its officials, trade penalties were applied to damage Hong Kong’s economy and hostile travel advisories were issued with a view to crippling its tourism industry.
Some of the most strident criticisms came from the UK’s foreign secretary (2019-2021), Dominic Raab. On July 1, 2020, the day after the NSL’s enactment, he told Parliament that the NSL was a “clear and serious breach of the Joint Declaration”, and that China had breached its obligations under the Joint Declaration. As we have seen, this was nonsensical. Even though the fair trial guarantees of the International Covenant on Civil and Political Rights (ICCPR) are incorporated into the NSL, he claimed the NSL threatened the ICCPR, which showed he was unfamiliar with its contents.
Raab was particularly worried about the provision that enables a national security case to be tried outside Hong Kong in strictly defined circumstances (Art.55). Although NSL cases are invariably tried in Hong Kong, NSL Art.55 recognizes that circumstances can arise that require the case to be tried elsewhere. These arise, firstly, if the case is complex due to the involvement of a foreign country or external elements, and this makes it difficult for Hong Kong to exercise jurisdiction; secondly, if a serious situation occurs whereby the government is unable to effectively enforce the NSL; thirdly, if a major and imminent threat to national security has occurred.
Although Raab has now left the scene, he is hopefully relieved that over the past five years there has not been a single case in which this happened. He even complained that the BL Art.23 procedure had not been followed in enacting the NSL, when as we have seen the attempt to do exactly that was blocked by anti-China forces in Hong Kong and the UK in 2003, and was no longer realistically open to the government.
However, although none of Raab’s doomsday scenarios materialized, his successors still see propaganda value in maligning the NSL. On Jan 7, 2025, for example, the Indo-Pacific minister, Catherine West, condemned the NSL in the UK parliament, and bizarrely called on Beijing “to repeal the National Security Law, including its extraterritorial effect”. As the UK, in 2023, had introduced a very tough measure of its own entitled the National Security Act with an extraterritorial dimension, the West’s condemnation of the NSL was not only ill-judged but manifestly hypocritical.
When, moreover, the NSL was enacted, the central authorities adopted a minimalist approach. Instead of enacting all the national security laws that Hong Kong was required to enact under the Basic Law (Art.23), as it was entitled to do, it only enacted the four laws that were immediately required to combat the insurrection. As Hong Kong had been unable to deliver on its responsibilities for 23 years, Beijing would have been fully justified in enacting all the laws identified in the Basic Law.
However, it refrained from doing so, and this showed it still had faith in Hong Kong’s ability to enact the outstanding laws, including sedition, theft of state secrets and treason. Its trust was finally repaid on March 23, 2024, when the SNSO became law, and to which I now turn.
Safeguarding National Security Ordinance
The SNSO covers the offences not included in the NSL, including insurrection, treason, sabotage, sedition, espionage, unlawful acquisition of state secrets and external interference endangering national security. This means China’s defensive network is now complete, and Hong Kong is now able to concentrate on other things. In drafting the legislation, the government studied the national security laws in other common law jurisdictions, including Australia, Canada, Singapore, the UK and the USA, and lessons were learned from them all. In all five jurisdictions, for example, the offence of treason is couched in similar terms, and involves a betrayal of country.
Most notably, the SNSO was influenced by the UK’s national security legislation. For example, the new offence 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 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.
Although the SNSO has been criticized for providing the police with extra powers, subject to judicial oversight, to seek extended detentions of suspects, and, if the court agrees, to restrict a person’s access to a lawyer if there are reasonable grounds for believing it will endanger national security (ss.78 and 79), these provisions mirror the British legislation. Indeed, the UK’s National Security Act 2023 gave the police the power to arrest and detain a suspect without a warrant for up to 48 hours, to invite the courts to extend the detention for up to 14 days, and then, with emergency approval, for 28 days. It also restricted a suspect’s right to consult a lawyer if this would interfere with an investigation (s.27).
Again, the espionage, or spying, provisions of the SNSO are not dissimilar to those in the UK and elsewhere, and most countries criminalize the theft of state secrets, as Hong Kong has now done. One big difference, however, lies in the penalties. Whereas espionage is punishable in Hong Kong with 20 years’ imprisonment, it is punishable with life imprisonment in the UK and Australia, and with life imprisonment or the death penalty in the USA.
Although the SNSO, like the NSL, has extraterritorial application, this is now a common feature of modern national security laws everywhere. It is recognized globally that national security threats posed by bad actors based in foreign jurisdictions have to be neutralized. This, as we shall see, was America’s justification for its ruthless pursuit over many years of the Wikileaks founder, Julian Assange, who disclosed information about America’s illegal operations abroad and was then prosecuted under the extraterritorial provisions of the Espionage Act, 1917. Extraterritorial national security laws provide the protections countries need from people of whatever nationality who try to harm them from their foreign bases, and their utility is widely acknowledged. This was why foreign models were so useful when the SNSO was being drafted.
In particular, the UK’s National Security Act 2023 was a guide on extraterritoriality. When it created the new offences of sabotage, espionage and foreign interference, the British government gave them extraterritorial effect. Its legislation specifically provides that if those offences are committed in a place outside the UK, the person responsible is prosecutable, whatever their nationality (s.36), and Hong Kong simply followed Britain’s example (which should have pleased it).
When, moreover, the SNSO introduced the new offence of sabotage, observers were struck by its almost uncanny resemblance to the sabotage offence in the UK’s National Security Act. They share the same ambit, same objectives, and, sometimes, even the same terminology. If imitation is the sincerest form of flattery, the UK is entitled to feel flattered by the influence it has had on Hong Kong. (And so also is Australia, whose sabotage offence, enacted in 2018, was drafted in terms not dissimilar to those subsequently adopted in the SNSO).
Indeed, when the similarities between the SNSO and the UK’s National Security Act were pointed out to the then-British foreign secretary, David Cameron, on Feb 27, 2024, he did not dispute it. How could he? But instead of welcoming the extent to which the UK’s national security law had influenced Hong Kong Kong’s, he complained that the consultation and legislative processes in Hong Kong were not as good as those in the UK, which was a red herring. It is the substance that counts, which he had difficulty in acknowledging.
When, moreover, the SNSO was drafted, it contained an offence of “external interference” per se. However, after consultations, this was renamed 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 are criminal are clearly defined, so there can be no misunderstandings, and foreign models again influenced the drafting process.
Whereas, for example, Hong Kong’s external interference law criminalizes acts which have an “interference effect”, the UK’s foreign interference law criminalizes acts of “prohibited conduct”, and the similarities are stark. When the Hong Kong offence 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 offence (s.15). Even the maximum penalty of 14 years’ imprisonment is identical, although there is one striking difference. Whereas Hong Kong’s external interference law requires intent (s.52), the UK’s foreign interference law introduced a lower test, and a person can also be prosecuted if he is simply “reckless” (s.13), making it easier to prosecute a suspect.
One of the West’s popular attack lines has involved freedom of speech and the media. For example, on April 15, 2024, the British foreign secretary, Lord Cameron, said that although the NSL purported to protect human rights in implementing national security, in reality freedom of speech and of the media were being curtailed. Pausing there, Lord Cameron was a member of a government that in 2021 banned the Chinese state broadcaster CGTN because it believed it was controlled by the CPC, and then, in 2022, after the Ukraine conflict broke out, also banned Russia’s English-language news channel RT, because it did not want the British people to know the Russian version of events. Moreover, although concerns have also been expressed that the SNSO’s tougher penalties for sedition and the broad definition of state secrets could inhibit freedom of speech and of the media, these are illusory.
When the British-era government introduced its sedition law into Hong Kong in 1938, free speech was unprotected, but no longer. Free speech is protected by the Basic Law, the ICCPR, and the Hong Kong Bill of Rights. As of Dec 31, 2024, Hong Kong’s mass media included 90 daily newspapers (some digital) and 345 periodicals. Moreover, international media groups (print and broadcast) are also well represented in Hong Kong, and readily speak their minds. They include The Economist, The Financial Times, The New York Times, Nikkei, The Wall Street Journal, Agence France Presse, Associated Press, Bloomberg and Thomson Reuters, BBC, CNBC, CNN, CNA and NHK.
Although there are extraordinary resemblances between Hong Kong’s national security arrangements and those elsewhere, there is one big difference. The Hong Kong laws are human rights heavy, with both the NSL and the SNSO placing human rights protections at the heart of their operations. Whereas the NSL stipulates that “Human Rights shall be respected and protected in safeguarding national security” (Art.4), this is repeated in the SNSO (s.2). Each law also provides that the rights and freedoms which residents enjoy under the ICCPR “shall be protected” in national security cases. In contrast, the UK’s national security laws, like those of the other jurisdictions I have mentioned, contain no specific human rights guarantees.
I should also emphasize that these rights are not mere paper rights. If, for example, constitutionally protected rights were to be violated in the collection of evidence in a national security case, the trial courts would have a discretion to exclude it, as where its admissibility would adversely affect the fairness of the trial (see HKSAR vs Muhammad Riaz Khan FACC 13/2012).
I mentioned earlier the UK’s foreign interference law, and the US and Australia have similar provisions which are being harshly enforced. They are being used to harass Chinese people living in those countries, notably those whose views of China do not align with those of the security services. In the UK, for example, Bill Yuen Cheung-biu, the Hong Kong Economic and Trade Office’s office manager, and Peter Wai Chi-leung, director of a private security firm, are being prosecuted for allegedly assisting China by monitoring the activities of individuals conducting China-hostile activities on British soil. Although the trial is still pending, the Chinese embassy in the UK said Chinese citizens were being wantonly harassed, arrested and detained under the pretext of national security, which was a grave provocation of China. Although we must await developments, it has been suggested that the allegations have been cooked up by people who want to see the UK’s HKETO closed down, together with the country’s Confucius Institutes.
In the US, likewise, there have been similar developments. On Feb 10, 2025, an American citizen of Chinese descent, Litang Liang, a hotel worker, was acquitted by a jury of acting as a foreign agent without notifying the US attorney general. He was accused of collecting information about the Boston area and its Chinese residents and passing it to Beijing, but the jury decided otherwise. Incredibly, one of the witnesses called by the US DOJ was the Hong Kong national security fugitive, Francis Hui Wing-ting, which was really scraping the bottom of the barrel. Hui has a bounty of HK$1 million ($128,700) on her head, and now works for the anti-China Committee for Freedom in Hong Kong Foundation, which is headed by Mark Clifford, who was previously a director of Jimmy Lai Chee-ying’s Next Digital, and campaigns on Lai’s behalf in the US. She announced that she was “deeply disappointed” by the verdict, which showed how difficult it was to hold “perpetrators of transnational repression accountable.”
However, in Australia, Di Sanh Duong was not as fortunate as Litang Liang. A Vietnam-born businessman and a leading member of the Australian-Chinese community, Duong was convicted last year of planning to commit an act of foreign interference in Australia. He had close ties with the governing Liberal Party, and was accused of secretly working with China to influence Australian leaders to change their perceptions of China. He was the first person to be charged with the offence, and was sentenced to two years nine months’ imprisonment under the foreign interference law for “cozying up” to a government minister, Alan Tudge.
As the BBC reported (Dec 18), a crucial issue at trial was whether, when Duong said Tudge’s attendance at a charity event would benefit “us Chinese”, he meant Australia’s Chinese community or China itself. A jury decided the latter interpretation was correct, and accepted that he had tried to influence the government “in a manner favorable to the Chinese Communist Party,” as the trial judge put it.
These types of cases show that Western countries are prepared to ruthlessly use their new foreign interference laws to persecute anybody who wishes to promote China’s interests, to spread positive messages about China or to gather information that will help China to protect itself from external threats. Those countries never tire of maligning Hong Kong’s own national security arrangements, even though there have been no such prosecutions in Hong Kong. As we have seen, one of the reasons for this is that in Hong Kong external interference is not enough by itself, and must also have endangered national security.
Criticisms of the NSL
A notable feature of the NSL has been the restraint with which it has been applied. In the West, the impression is often given that thousands have been locked up. However, between July 1, 2020 and Sept 1, 2025, only 197 persons and five companies had been prosecuted for offences in connection with endangering national security. As Hong Kong has a population of over 7.5 million, it can be seen that the prosecuting authorities are exercising maximum restraint, and only proceeding in the strongest cases. This is far removed from what the China critics claim, although they are rarely interested in the reality. Although I cannot rebut all their criticisms today, I will address four of the main ones.
1: Designated judges: There have been ferocious attacks on the arrangement whereby trials are conducted by judges who have been designated as national security judges by the chief executive. It has been alleged they are handpicked for particular cases, and will deliver the verdicts the chief executive wants, which is propaganda at its worst. All our judges and magistrates are appointed by the chief executive, which has never been controversial, and it is standard practice for there to be horses for courses. Whereas, for example, some judges specialize in admiralty, commercial and family law matters, others concentrate on company, administrative and personal injury cases. When it comes to national security cases, which can involve the nation’s very survival, nobody should be surprised that every effort is made to choose experienced judges who are of the highest quality and whose integrity is impeccable, and there is nothing strange about this.
As the chief executive is a non-lawyer, he knows little about particular judges, which is why the NSL provides for the chief justice to be consulted during the designation process (Art.44). Those judges who are designated are not a special breed, but come from the existing Judiciary, where they will have proved their worth. All judges, whether designated or not, are bound by their judicial oath, which requires them to “administer justice without fear or favor,” and this does not suddenly change upon designation. Once designated, they are not assigned to cases by the chief executive, but by the Judiciary itself. This is exactly the same procedure as in all criminal and civil cases, about which nobody ever complains.
2: Jury trials and three-judge panels: Another myth that requires slaying concerns the use of three-judge panels rather than juries to try national security cases, which has been represented in the West as a device to ensure that defendants are convicted. Although jury trials are customary when serious cases are transferred to the High Court, there has never been a right to trial by jury in Hong Kong (Tong Ying Kit vs SJ, CACV 293/2021), and about 95 percent of cases are tried in the lower courts without a jury. The NSL recognizes that circumstances can arise whereby a jury trial is not in the interests of justice.
Although a jury trial is certainly possible, there are situations in which another means of achieving justice is necessary, and it does not affect the fairness of the trial. Where, therefore, the Secretary for Justice issues a certificate directing that the accused be tried without a jury on the “grounds of, among others, the protection of state secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members”, the NSL provides that the case will be tried in “the Court of First Instance without a jury by a panel of three judges” (Art.46).
After the Secretary for Justice has issued the certificate, that is normally the end of the matter. Once the secretary concludes, for example, that the jurors or their families are under threat and that a fair trial by jury is no longer possible, the only realistic remedy is a non-jury trial by a three-judge panel. If an accused person is aggrieved by the decision to dispense with a jury, he can always challenge it by way of judicial review, if taken in bad faith (Tong Ying Kit vs SJ CACV 293/2021), although I am not aware of this having ever happened. In any event, this arrangement is by no means unique.
In the UK, for example, the Criminal Justice Act (2003) allows a trial to be conducted by a judge alone if it is decided there is a “real and present danger” of jury tampering, and that, once steps are taken to neutralize the threat, the likelihood of it arising would be “so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”.
The Republic of Ireland has a similar arrangement, and juries can also be dispensed with there. The Constitution enables parliament to establish special courts with wide powers when “the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order”.
In 1972, after the so-called “troubles” erupted in Northern Ireland, the Special Criminal Court was established to handle terrorism-related cases in the Republic of Ireland.
When an Irish case is tried by the SCC, there is no jury, and, as in Hong Kong, the defendant is tried by a three-judge panel. Although the SCC was originally only used in national security cases, it is now also used in cases that endanger the administration of justice, as where jurors face intimidation, and cases involving serious and organized crime. Although this goes far beyond Hong Kong’s NSL, the people who criticize HK so much have nothing to say.
In 2015, when the Judicial Committee of the UK’s Privy Council considered an appeal from the Turks and Caicos Islands, Lord Hughes said “An order for trial by judge alone can be made where the interests of justice require it, just as in England it can only be made where it is necessary”. The same considerations apply in Hong Kong, and a three-judge trial is only ordered where the interests of justice so require, but only in cases where national security is engaged.
As the UK has taken the lead in criticizing Hong Kong’s three-judge trials, the question arises if its stance is bona fide, and the answer is not hard to find. Apart from Hong Kong, the UK previously controlled three other places in the Far East — Singapore, Malaysia and Brunei Darussalam. In Singapore, the British legacy of trial by jury has been abolished in all cases, whether or not involving national security. However, the UK does not complain about this, and it did not complain when Malaysia also abolished jury trials in 1995 in favor of single-judge trials. In Brunei Darussalam, trials of whatever type are conducted by single judges without juries, yet the UK has never complained. All three places retain the death penalty, unlike Hong Kong, and none has signed the ICCPR, also unlike Hong Kong. It is clear, therefore, that hypocrisy is at play, and that the professed concerns over the use of three-judge panels are artificial, and designed to embarrass China.
Indeed, in Northern Ireland, one part of the UK’s four constituent nations, trials by a single judge can still occur. Under the Justice and Security (Northern Ireland) Act 2007, the Director of Public Prosecutions can decide to dispense with a jury if there is a risk of the administration of justice being impaired if the trial were to be conducted with a jury. At one time, when there was rampant terrorist activity, over 300 trials a year were being held without a jury. In 2023, 12 trials were conducted without a jury out of a total of 1,423, and, as in Hong Kong, there must always be a clear justification. It is, therefore, flagrant hypocrisy for the UK to criticize Hong Kong on this point.
Although, moreover, the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, the European Court of Human Rights has decided that states have considerable leeway in deciding how to ensure it. It has ruled there is no right to a jury trial, and that the focus should ultimately be on whether the trial, howsoever conducted, was fair. It has explained that the ECHR’s right to a fair trial “does not specify trial by jury as one of the elements of a fair trial hearing in the determination of a criminal charge” (see X & Y vs Ireland, 1980).
3: Choice of defense counsel: The third issue concerns the choice of defense counsel in national security trials. Before the trial of Jimmy Lai Chee-ying started, a pre-trial issue arose over whether he was entitled to retain the services of a British King’s Counsel from London, Timothy Owen. As the Basic Law entitles accused persons to retain counsel of their choice to represent them at trial (Art.35), it was argued in the UK and elsewhere that Lai should be allowed to retain Mr Owen’s services, although there was more to it than that.
Under Hong Kong’s unique legal arrangements, overseas lawyers can be admitted by the High Court on an ad hoc basis for particular cases, provided it is in the public interest, as where the lawyer possess an expertise not available in Hong Kong. Each year, barristers from the UK are specially admitted, usually to handle cases of particular complexity or sensitivity. However, with the enactment of the NSL, the law on overseas admissions in national security cases was amended, and an overseas lawyer who wishes to appear in a national security case must first obtain a “Notice of Permission to Proceed” from the chief executive, who will need to be satisfied there are no security concerns. In other words, there is no blanket prohibition on lawyers appearing, and decisions are taken on a case-by-case basis. Although reasonable enough, the exclusion of Mr Owen from the Jimmy Lai trial was condemned, for example, in the European Parliament, which was extraordinary.
After all, other major common law jurisdictions, including Australia, Canada, Ireland, the UK and the US, do not allow overseas lawyers to conduct criminal cases in their courts, whether or not they involve national security. Their cases are conducted by their own locally qualified lawyers. It is precisely because of its global status and its desire for legal excellence that Hong Kong allows overseas lawyers to appear in its courts, albeit on an ad hoc basis, although there have to be limits. Quite why the European Parliament singled Hong Kong out for criticism when its lawyer admission policy is far more liberal than most other places is not easy to understand, and the anti-China forces, notably the Inter-Parliamentary Alliance on China, will have stoked concerns for their own base motives.
As everybody knows, national security cases are particularly sensitive, and problems might arise if a defense lawyer who lives and works abroad is involved in a trial. He or she will not have been security vetted, and there is no guarantee that state secrets will be safeguarded. Indeed, case papers containing state secrets may have to be sent to the UK for case preparation, and they could become accessible to the intelligence services. The way in which national security investigations are conducted could be of huge interest to foreign intelligence services, and lawyers could find themselves in an invidious situation if told it was their patriotic duty to disclose what they have learned about China’s national security arrangements while conducting cases in Hong Kong.
However, any foreign lawyer who lives and practices in Hong Kong is entitled to appear in a national security trial. When, therefore, the Basic Law refers to people having the right to choose a lawyer, it means a lawyer from the pool of locally qualified lawyers, and not somebody from the other side of the world. Indeed, one of the lawyers currently defending Jimmy Lai is the Hong Kong-based Marc Corlett, a King’s Counsel from New Zealand. If, for whatever reason, a foreign lawyer based in Hong Kong were to disclose confidential information in violation of the NSL (Art.63(2)), he or she could be disciplined and prosecuted, although this would be very difficult if an overseas lawyer were to do the same thing.
4: Extraterritorial jurisdiction: The fourth issue of purported concern to foreign powers concerns the extraterritorial reach of our national security laws. The legal basis for extraterritorial jurisdiction lies in the protective principle of international law, which allows a state to assert jurisdiction over any person whose conduct outside its boundaries threatens its vital interests, including its security or governmental functions. The protective principle can be asserted without regard to where or by whom the act is committed. Many countries have extraterritorial laws, and Hong Kong has emulated their example.
As we have seen, the UK’s National Security Act 2023, for example, provided valuable guidance for Hong Kong when the SNSO was being drafted. Whereas it created new national security offences, the decision was also taken to give them extraterritorial effect. It specifically provides that if those new offences are committed in a place outside the UK, the person responsible is prosecutable, whatever their nationality (s.36), and Hong Kong has followed suit.
The US, moreover, uses the protective principle to combat crimes against the state, including espionage, regardless of where or by whom the act is committed. It pursued the Wikileaks founder, Julian Assange, for many years, on 17 charges related to the unauthorized disclosure of classified information considered detrimental to US national security, and it relied on the extraterritorial reach of its Espionage Act 1917. Although the case was dropped last year, Assange was pursued even though he was an Australian national, and notwithstanding his alleged crimes having occurred outside the US.
However, when Hong Kong seeks to pursue people suspected of violating national security, Western countries react with fury, exposing their double-standards. On Jan 21, 2025, for example, four national security suspects living in the UK were invited to a special meeting with the British foreign secretary, David Lammy. This was despite the Hong Kong authorities having accused them of “continuing to commit offences under the Hong Kong National Security Law”. They were part of a group of six who, on Dec 24, 2024, were accused of betraying China and harming the interests of Hong Kong by inciting secession and colluding with foreign forces to endanger national security. They were told they were safe in the UK, and that Hong Kong’s attempts to hold them accountable were “unacceptable”. This was extraordinary, and they undoubtedly left the meeting imagining they could carry on using the UK as a base from which to try to undermine Hong Kong and destabilize China.
Just imagine, if you will, the outcry if China had done the same thing, and allowed Britons who had tried to subvert the UK and violated its National Security Act to set up shop in China. If China’s foreign minister, Wang Yi, had also red-carpeted them, you can picture the UK’s fury. The hypocrisy was extraordinary, and disregarded the comity of nations, which Britain always claims to support. It also shows that senior politicians in the UK remain sympathetic to those who have planned to wreck the “one country, two systems” policy, which is alarming, but shows that we cannot let our guard down in Hong Kong.
Conclusion
I hope I have been able to give you a clearer understanding of Hong Kong’s national security arrangements. Although some may view them as tough, they are fair, legitimate and aligned to international norms. What is more, they go the extra mile in ensuring that the rights of suspects are respected. The criticisms they have faced have invariably been unreasonable and politically motivated, and there is absolutely no reason for anybody who believes in the rule of law and human rights to be in any way defensive when discussing them. The “one country, two systems” policy is now safe and Hong Kong can support national development from a secure base. This should gratify everybody who loves Hong Kong and reveres the country.
Grenville Cross 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.
