Q: We can assume that businesspeople in Hong Kong do not intend to participate in the four key crimes under the National Security Law (NSL) – secession, subversion, terrorism or collusion. But should businesses be concerned that they may be unwittingly caught up in the new law? For example, through assisting or financing people committing these crimes?

A: For offences that are more in a “supporting role” – i.e. “assist in, abets, or provides .... assistance for the commission by others of an offence” –this would require intention on the part of the wrongdoer intending to assist and with knowledge that the “other person” was committing the primary offence in respect of which he or she is assisting. Someone who is involved in the act of assisting or providing assistance without knowing that the person who received assistance is committing the primary offence should not be guilty of the “supporting role” offences. 

Q: If a member of the public, for example, uses a company’s chatroom or other websites to incite crimes under the National Security Law, could the company be held liable? 

A: The company should not be held liable if the company does not know or approve of the act committed by the member of the public who used the company’s chatroom. However, once the company found out its chatroom has been used in ways which might amount to an offence the company should immediately take steps to remove those messages.

Q: What if a media outlet shared the opinions of a violent protestor or someone calling for secession?

A: If the media is simply reporting facts or the occurrence of an incident, or event, e.g. that a violent protestor was advocating secession, the media outlet should not be held liable if they are only doing their job in reporting news. However, if additional comments were added to the reporting suggesting that the outlet agreed to or approved the conduct of that protestor, then that might itself amount to advocating the protestor’s unlawful act.

Q: Article 29 refers to “imposing sanctions or blockade.” Currently, some countries (such as the United States) are considering sanctions against Hong Kong. How will this affect a company in Hong Kong that is a branch office of a company that is headquartered in the U.S., for example? 

A: Where the head office of a company is subject to government sanction in their own jurisdiction, e.g. the U.S., and its branch office in Hong Kong is required to follow instruction from its head office to comply with that sanction – such might fall foul of Article 29(4) of NSL. It is important to note whether there is any internal regulatory requirement in that company allowing branch office to comply with the local law and local compliance requirement instead of following headquarters’ instructions and whether the exact terms of the sanction would put the company in direct breach of Article 29(4). 

Q: Under Article 55, the Central authorities may have jurisdiction if a case “is complex due to the involvement of a foreign country or external elements.” In such cases, will a suspect have the same rights - eg rights to see a lawyer, length of detention - as they would in Hong Kong? What steps should a business take ahead of a case being heard by Mainland authorities?

A: Once a case falls under Article 55, the procedure would be governed by the PRC Criminal Procedure Law. This would govern the whole process including the investigation, prosecution and adjudication. PRC Criminal Procedure Law enables a suspect or anyone assisting the investigation to have the right to seek advice from a lawyer and it also sets out different types of measures that the investigators or the procurators office could take. These are very different from that as applied under Hong Kong law. Should a business be approached by the investigators under an investigation under Article 55, they should seek advice from a PRC qualified lawyer to advise them on the procedure and their rights in the process of that investigation. 

Q: Does Article 55 undermine Hong Kong’s judicial independence?

A: NSL is a piece of national legislation and its purpose is to set up a legal system and enforcement mechanism for the protection of national security of PRC in HKSAR. This system does not exist in full under the existing Basic Law regime. It is the Central People’s Government that is responsible for this and has jurisdiction to deal with this. However, respecting the “one country two systems” policy the Central People’s Government allowed HKSAR to assume responsibilities for a large number of cases that concern national security and reserve part of the “deserving cases” for the Central People’s Government. In other words, HKSAR should not have the jurisdiction to handle national security cases in the first place and it is under NSL that HKSAR is given jurisdiction to handle most of those cases. From this angle, the application of Article 55 should not be seen as undermining Hong Kong’s legal system or its judicial independence in any way.

Q: Are there any uncertainties in the National Security Law where you would like to see more clarification?

A: There are a number of areas that should be further clarified. 

(i)     Under Article 55(1) it would be helpful to clarify to what extent the involvement of a foreign country or external element would trigger the application of Article 55. 

(ii)     For cases being investigated in Hong Kong under Article 55, further clarifications would help as to whether a Hong Kong qualified lawyer could represent a suspect or persons rendering assistance.

(iii)     How a suspect or person required to provide assistance to an investigation under an Article 55 case would know if the case is one that falls under Article 55. 

(iv)     The exact procedure that apply to a case under Article 55 in HKSAR, e.g. what procedure would govern the investigation, prosecution and trial, and by which organs.