Editor’s note: The following is the opening statement of Grenville Cross SC at a seminar on “Ensuring the Accurate Implementation of the National Security Law” sponsored by the Hong Kong and Macao Affairs Office of the State Council of the People’s Republic of China on Jan 13, 2023.
I am most grateful to the Chinese Association of Hong Kong and Macao Studies for inviting me to address you today on how the Judiciary has integrated the National Security Law for Hong Kong (NSL) into the legal system of the Hong Kong Special Administrative Region.
By virtue of the Basic Law, the common law applies in Hong Kong (Art.8), and President Xi Jinping confirmed on July 1, 2022 that the Central Government supports its retention over the long term. This has been well received in Hong Kong and beyond, not least because its unique characteristics have served the city well over many years. The common law has traditionally prioritized such things as equality of arms, certainty in legal proceedings and rules-based trials, but it is also versatile, and can accommodate new developments.
Thus, for example, when the Hong Kong Bill of Rights Ordinance (Cap.383) was enacted in 1991, thereby giving effect to the provisions of the International Covenant on Civil and Political Rights (which still applies in Hong Kong under the Basic Law’s Art.39), it posed fresh challenges. Although the Judiciary had to undertake some radical reappraisals of established legal concepts, it was able to achieve this within the parameters of a common law system that was sufficiently flexible to adjust to new approaches.
When the National Security Law (NSL) was enacted by the NPCSC on June 30, 2020 (and promulgated in Hong Kong the same day), it also contained some novel provisions. Although, after an insurrection that had sought to wreck the “one country, two systems” policy, these were unavoidable, there were concerns over their possible implications. Some observers were worried that Hong Kong’s common law system would be unable to absorb the new methodology, and that serious harm could result when the Judiciary integrated it into a legal system that had its own way of doing things. Over 2 ½ years, however, have now elapsed since the NSL was enacted, and those concerns have been laid to rest by several judgments in which the Judiciary has, without violating fundamental principles, achieved fair outcomes.
Although only a small number of national security cases have been finally determined, significant guidance has nonetheless been provided, as three landmark judgments demonstrate.
1. NSL & SENTENCING
Once the NSL’s sentencing provisions were unveiled, they were found to contain unfamiliar terminology, and this initially appeared problematic. They have, however, by reference to established canons of interpretation and elementary common sense, been explained by the Judiciary, and much of the initial concern has dissipated.
Some commentators, for example, thought that, when the NSL (Art.33) stated that a trial court could impose a lighter penalty, or that the penalty may be reduced, or, in the case of a minor offence, exempted altogether, in three situations, those situations were exhaustive. Those three situations arise: firstly, if the accused has, during the commission of the offence, voluntarily discontinued his involvement or effectively forestalled its consequences; secondly, if the accused has voluntarily surrendered himself or herself and given a truthful account of the offence; or, thirdly, if the accused has reported an offence committed by others or provided information which assists the authorities in solving another criminal offence.
On one view, it appeared that these three mitigating factors were the only possible bases for reducing a sentence. If so, it would have meant that the other mitigating factors that the courts have long since recognized, such as a guilty plea, positive good character or age (young or old), were no longer relevant to sentencing. If this was indeed the impact, it would have turned on its head a sentencing system developed by the Judiciary over many years, and this could have triggered great resentment. This, however, is not the way in which the NSL (Art.33) has been interpreted by the Judiciary, and other mitigating factors remain relevant, albeit in the context of a new legislative framework.
When the Court of Appeal examined this issue last November (CACC 61/2022), it explained that it was “the legislative intent that local sentencing laws on mitigation are to operate in tandem with the NSL”, provided they are consistent with its primary purpose. What this means, therefore, is that other mitigating factors, not mentioned in the NSL (Art.33) but recognized at common law, notably a guilty plea, are still relevant and will operate when a court is considering a lighter sentence within the respective range for a particular offence.
Thus, for example, if somebody “actively participates” in subversive activity, he will face a sentence of anywhere between 3 and 10 years imprisonment, with the actual term being determined by the gravity of the offending and any aggravating or mitigating factors. At the same time, the Court of Appeal clarified that it is only the three mitigating factors highlighted in the NSL (Art.33) that can result in a defendant being sentenced in a lower sentencing bracket for the offence (ie, in the example given, of below 3 years, rather than in the 3 to 10 years bracket), whereas the other common law mitigating factors cannot have this effect.
2. NSL & JURY TRIALS
After the NSL was enacted in 2020, some people complained that it violated a defendant’s right to trial by jury. This, however, was mischievous, as there is no such right, and it demonstrated an ignorance of the criminal law. As early as 2010, long before the NSL saw the light of day, the Hong Kong Court of Appeal’s Appeal Committee observed that “it is clear that there is no right to trial by jury in Hong Kong” (FAMC 64 & 65/2009).
Although the NSL (Art.46) entitles the Secretary for Justice to issue a certificate directing that a defendant be tried in the Court of First Instance by a 3-judge panel instead of by 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,” this was challenged by the accused person in the first national security trial in 2021. He claimed, after the Secretary issued a certificate for a non-jury trial because of concerns that jury interference would prevent a fair trial, that there was a constitutional right to trial by jury, although this was rejected by the Court of First Instance (HCAL 473/2021).
When the case reached the Court of Appeal (CACV 293/2021), it explained that the Secretary for Justice’s decision to issue the certificate was a prosecutorial decision under the Basic Law, which states that the Department of Justice “shall control criminal prosecutions, free from any interference” (Art.63). There was no constitutional right to a jury trial, and, in any event, a jury trial was not the only way justice can be achieved in the Court of First Instance. It emphasized that most criminal trials are conducted by judges or magistrates sitting alone without juries in the District Court or the Magistrates Court, and nobody had ever seriously suggested such trials were other than fair.
The Court of Appeal also indicated that the traditional common law approach to allegations of bad faith by prosecutors extends to a decision taken by the Secretary for Justice under the NSL. This meant that, if the Secretary could be shown to have acted improperly in issuing the certificate for a non-jury trial, the decision, like any other prosecutorial decision, would be judicially reviewable. This, therefore, subjects the Secretary’s newly-acquired NSL power to judicial oversight, which is clearly reassuring.
3. NSL & BAIL
Although the NSL (Art.42(2)) provides that bail will not be granted to an accused unless the judge has sufficient grounds for believing that he will not continue to commit acts endangering national security, a higher threshold test is clearly unavoidable in cases involving the country’s very survival. However, when the Hong Kong Court of Final Appeal (HKCFA) considered the granting of bail to national security suspects (FACC 1/2021), it emphasized that the NSL expressly provides for the rights, freedoms and values contained in the Basic Law and the Hong Kong Bill of Rights to be protected and adhered to in the application of the NSL (Art.’s 4 and 5). While the NSL (Art.42(2)) contained a specific exception in national security cases to the general rule in favor of the grant of bail, there were procedural steps which had to be observed by a judge who was determining a bail application.
In particular, said the HKCFA, a judge, in deciding if there are sufficient grounds for believing that an accused would not continue to endanger national security, has to consider everything that is relevant to the decision-making process, including the possible imposition of bail terms and other materials that would not be evidentially admissible at trial. In resolving the “sufficient grounds” issue, the judge has to make his own evaluation and exercise his own judgment in the matter, without regard to customary notions of the burden of proof. In other words, a common-sensical approach is the best means of resolving the question.
Once all relevant material had been assessed, the HKCFA indicated that bail must be refused if the judge does not have sufficient grounds for concluding that the accused will not continue to commit acts endangering national security. If, however, the judge decides he has sufficient grounds, the next step is to consider all other matters relevant to the grant of bail, applying the traditional presumption in favor of bail. This includes a consideration of whether there are substantial grounds for believing the accused will fail to surrender to custody, or will commit another offence while on bail, or will interfere with a witness or otherwise pervert or obstruct the course of justice.
Although the NSL’s bail provision (Art.42(2)) may seem harsh to some people, its necessity is obvious, and the HKCFA has interpreted a novel provision in a way that is both logical and fair. A flexible approach to its application has been adopted, and it is now clear that a judge determining a bail application can ensure a just outcome by looking at things holistically. With this clarification, everybody now knows where they stand, and it was reported in 2022 that 25.7 percent of those charged with NSL offences had been granted bail. This indicates that judges are conscientiously considering each bail application broadly on its merits, and that a not inconsiderable number of suspects are able to discharge the threshold test and obtain bail.
Conclusion
Since 2020, the Judiciary, in cases concerning a variety of issues, has provided invaluable guidance as to how the NSL should be assimilated into a common law based legal system. It has gone the extra mile in ensuring that its provisions are sensibly interpreted, its principles are applied within established legal parameters, and its objectives are fulfilled. No more could have been asked of it, and its professionalism has shone forth throughout the process. It has approached national security questions in a way that accords with the highest traditions of criminal justice, and this bodes well for the rule of law.
Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.