Hong Kong Chief Executive Can Classify Any Offense as a National Security Crime

The Hong Kong government intends to expand the scope of national security laws by amending subsidiary legislation of the Safeguarding National Security Ordinance. Even if an offense is not explicitly listed as a national security crime under the Hong Kong National Security Law or the Safeguarding National Security Ordinance, it can be handled as a national security case as long as the Chief Executive issues a certificate certifying that the act involves national security.

Secretary for Justice Paul Lam Ting-kwok pointed out that the mechanism is formulated in accordance with Article 47 of the Hong Kong National Security Law and Section 115 of the Safeguarding National Security Ordinance. If a certificate is issued by the Chief Executive, the relevant offense and its “alternative offenses” will be handled together under the procedures for offenses endangering national security. Chief Executive John Lee Ka-chiu stated that endangering national security mostly involves “state-level masters” and that the relevant intelligence is highly sensitive, making it appropriate for the Chief Executive to make the determination. He emphasized that the mechanism only applies to acts that already constitute criminal offenses.

The relevant government subcommittee quickly completed the scrutiny of the regulations in mid-June, with plans for the legislation to take effect immediately after being gazetted. Secretary for Security Chris Tang Ping-keung stated that the amendment does not expand the definition or penalties of national security offenses, but rather makes the relevant laws clearer without affecting the rights of the accused. He added that the new mechanism will only be applied to exceptional cases involving covert methods, directly pointing out that some people are attempting to misinterpret the law as infinitely expanding the scope of national security crimes.

However, the Hong Kong Human Rights Information Centre, composed of overseas Hong Kong legal professionals, believes that the new arrangement grants greater power to the Chief Executive that is difficult to challenge through judicial procedures, raising concerns that it could further erode judicial independence and the rights of the accused. Human rights organizations pointed out that national security cases already involve trial by designated judges and stricter bail thresholds. The new amendment may expand the scope for the national security mechanism to intervene in other ordinary criminal cases, lacking effective judicial review or checks and balances. This could pull social disputes originally related to livelihoods, private property rights, or public interests into the national security legal framework, increasing the legal risks for citizens speaking out and defending their rights in daily life, thereby affecting more cases.