The Chinese government will have jurisdiction in some serious national security cases in Hong Kong in order to ensure effective deterrence against violations, according to a deputy director of the Hong Kong and Macau Affairs Office (HKMAO).
The national security law will not contradict Hong Kong’s local law as it has an unchallenged authority and status, HKMAO’s Deng Zhonghua said at a Basic Law seminar in Shenzhen on Monday.
Deng said Hong Kong’s government will be responsible for the majority of enforcement work and trials in relation to the upcoming national security legislation. However, he added that the mainland will need to have jurisdiction over “extremely rare cases” where national security has been severely threatened.
Deng, who studied international law at Wuhan University, said Beijing must have real power to handle national security cases in order to create an effective deterrence, rather than just “chanting slogans and posing gestures.”
“It will be extremely rare for the central government to handle Hong Kong’s national security cases,” said Deng. Beijing will not replace the role of Hong Kong’s judicial institutions and also not affect the special administrative region’s judicial independence and power of final adjudication, he said.
He said both the central and Hong Kong governments should set up their own law enforcement mechanisms to safeguard national security, while Beijing will supervise and monitor Hong Kong’s work on the matter. He said there is a need for the mainland to base security agents in Hong Kong.
Since the National People’s Congress on May 28 passed a resolution to grant its standing committee the power to set up a national security law for Hong Kong, Beijing has not yet disclosed the wording of the law. Dominic Raab, the UK foreign minister, told the House of Commons on June 2 that the UK would announce its plan to counteract Beijing’s implementation of the national security law after the wording is made public.
According to a report by Politico, Mike Pompeo, the US secretary of state, will meet with Chinese officials in Hawaii early this week. Yang Jiechi, director of the Office of Foreign Affairs of the Communist Party of China, will represent China at the meeting, the South China Morning Post reported.
While the wording of the law has remained unclear, some pro-Beijing legal and political experts have tried to address public concerns. In recent forums, they said there will not be a retroactive period for the law. They said the law will be enforced by the Hong Kong police, instead of mainland agents, while a special court will be set up to handle cases. They also said foreign judges should be allowed to participate in cases.
Ronny Tong Ka-wah, a senior counsel and member of the Executive Council of Hong Kong, said in a forum on Saturday that he supported the national security legislation and believed that the law will not conflict with Hong Kong’s common law system, which highlights the presumption of innocence and the right of defense, public trial and jury trial. He said a clear line would be drawn between national security and the Hong Kong people’s freedom.
Past speeches as evidence
Tong, who emphasized that he did not represent the government in the forum, said the national security law should not have a retroactive period, which contradicts Hong Kong’s common law practice. However, he said a person’s past speeches could be used as evidence in a case.
A judge will assess a person’s intention to commit an act of treason or subversion based on the “actual effect” their speeches or actions have had, Tong said, adding that related circumstantial evidence will be considered.
“If a nobody stands on a street in Tsim Sha Tsui and says he wants to overthrow the special administrative region government, people may ignore him,” Tong said. “If a legislator or an experienced politician does the same thing and successfully gathers a crowd, it will create an ‘actual effect’.”
Tong said Hong Kong judges fully understand how to handle these cases, which are similar to contempt of court.
He said young people who held US flags in a shopping mall and urged the US army to invade Hong Kong have actually committed treason, which is stated in the Crimes Ordinance. He said as the SAR government has never invoked this law, which was criticized by democrats as outdated, Beijing has no choice but to impose the national security law.
Tong said a person may violate the national security law by calling for an end to the “one-party dictatorship” if their speech is accompanied by an action. Besides, the anti-extradition protesters’ slogan “Liberate Hong Kong” may mean a call to end “one country, two systems,” he said.
However, he said he would prefer to comment on the matter after the wording of the law is unveiled.
Jasper Tsang Yok-sing, former president of the Legislative Council, said at the same event that the national security law will mainly target those who collude with foreign powers.
He said the US government had sponsored and provided training resources to the people who overthrew the pro-Russia governments in Georgia, Kyrgyzstan and Ukraine in previous “colour revolutions.” He said although the US may not want Hong Kong to become independent, it definitely wants to cultivate a pro-US government in the city by supporting democratic forces.
He said if the Hong Kong government was led by a chief executive who was pro-US, it would have extradited the ex-CIA contractor Edward Snowden to the US in 2013.
In 2013, Snowden exposed the US spy program in Hong Kong but the then Chief Executive Leung Chun-ying ignored the US government’s request to arrest and extradite him to the US. He then sought asylum in Russia.
Tsang said with the national security law, Beijing will be able to re-establish the Hong Kong Police Force’s special branch, which was dissolved before the 1997 handover, and increase its ability to collect intelligence in Hong Kong.
Tsang said he believed that Hong Kong defendants’ legal rights would be protected after the national security law was implemented. However, he added that no one could guarantee that a defendant would not be extradited to the mainland.