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HKSAR Government Clarifies Mechanism for "Other Offences Endangering National Security under HKSAR Laws" Gazette Published and Effective Immediately
The Chief Executive in Council today (9th) approved the making of the Safeguarding National Security (Procedural Matters) Regulation under Section 110 of the Safeguarding National ...
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HKSAR Government Clarifies Mechanism for "Other Offences Endangering National Security under HKSAR Laws" Gazette Published and Effective Immediately
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The Chief Executive in Council today (9th) approved the making of the Safeguarding National Security (Procedural Matters) Regulation under Section 110 of the Safeguarding National Security Ordinance to clearly set out the mechanism for determining "other offences endangering national security under HKSAR laws" as defined under the Hong Kong National Security Law and the Safeguarding National Security Ordinance. The move aims to reflect the legislative intent of the Hong Kong National Security Law and the Safeguarding National Security Ordinance and to more effectively implement their relevant provisions. The Procedural Matters Regulation was gazetted on the same day and came into immediate effect.

In fulfilling its constitutional duty to continuously improve the legal system and enforcement mechanisms for safeguarding national security, the HKSAR Government has been reviewing the existing legal framework and enforcement mechanisms. Where improvements or clearer mechanisms are considered necessary, legislative proposals will be introduced in a timely manner.

Based on the legislative intent of the Hong Kong National Security Law, the definition of "offences endangering national security" under Section 7 of the Safeguarding National Security Ordinance, and relevant Court of Final Appeal cases, offences endangering national security include not only those stipulated under the Hong Kong National Security Law, the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, and the Safeguarding National Security Ordinance, but also "other offences endangering national security under HKSAR laws" as referred to in Section 7(d) of the Safeguarding National Security Ordinance. This refers to offences under other HKSAR laws where, in individual cases, the criminal conduct involved is of a nature that endangers national security. In this regard, the HKSAR Government considers it necessary to set out, in the form of subsidiary legislation, a clear mechanism for determining "other offences endangering national security under HKSAR laws" to more effectively implement Section 7(d) of the Safeguarding National Security Ordinance and relevant provisions applicable to offences endangering national security under the Hong Kong National Security Law and the Safeguarding National Security Ordinance.

The mechanism set out in the Procedural Matters Regulation is as follows: where the Chief Executive issues a certificate under Article 47 of the Hong Kong National Security Law or Section 115 of the Safeguarding National Security Ordinance certifying that a particular act in a criminal case involves national security, the case shall be regarded as a criminal case concerning offences endangering national security as referred to in Article 41 of the Hong Kong National Security Law. Any offence investigated, arrested or prosecuted in relation to that act shall be deemed an offence endangering national security as referred to in Section 7(d) of the Safeguarding National Security Ordinance.

The relevant provisions concerning the Chief Executive’s certificate are fully consistent with common law principles. Courts in common law jurisdictions such as Hong Kong and the United Kingdom recognize that the executive authorities are better positioned than the courts to assess and determine matters relating to national security. Accordingly, the judiciary respects the executive authorities’ assessment and determination in this regard.

A Government spokesperson stated that the mechanism for the Chief Executive to issue a certificate under Article 47 of the Hong Kong National Security Law or Section 115 of the Safeguarding National Security Ordinance regarding whether an act involves national security, as well as the provisions applicable to offences endangering national security under the Hong Kong National Security Law and the Safeguarding National Security Ordinance, are existing and effective arrangements. The Procedural Matters Regulation does not alter these provisions, does not change the scope of application of the Hong Kong National Security Law or the Safeguarding National Security Ordinance, does not modify the definition of "offences endangering national security," and does not create any new offences, penalties or enforcement powers.

The spokesperson added that the purpose of the Procedural Matters Regulation is to clearly set out the mechanism for determining "other offences endangering national security under HKSAR laws" and to refine related procedural matters, thereby enhancing certainty in the implementation of the Hong Kong National Security Law, the Safeguarding National Security Ordinance and related provisions. These laws apply only to a very small minority who commit offences endangering national security and will not affect the daily lives of the general public or the normal operations of institutions and organizations. Law-abiding individuals, institutions and organizations will therefore not be affected by the Procedural Matters Regulation. (da/a)

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