26th November 2022 – (Hong Kong) Following is a statement issued by the Chief Executive, Mr John Lee, today on submitting a report to the Central People’s Government (CPG) on the National Security Law and recommendation to request an interpretation of the National Security Law from the Standing Committee of the National People’s Congress (NPCSC):
I received a formal letter issued by the CPG in accordance with Article 11 of the National Security Law yesterday, which required the Chief Executive to submit a report to the CPG on the performance of duties of the Hong Kong Special Administrative Region (HKSAR) in safeguarding national security since the implementation of the National Security Law, including relevant matters such as the work of the Committee for Safeguarding National Security of the HKSAR (the Committee), with an attachment containing specified matters. I convened a meeting of the Committee in respect of the matter.
I hereby make a statement in the capacity as the Chief Executive of the HKSAR and the Chairperson of the Committee. The top priority of the principle of “one country, two systems” is to safeguard national sovereignty, security and development interests. According to Article 3 of the National Security Law, it is the duty of the HKSAR under the Constitution to safeguard national security. The executive authorities, legislature and judiciary of the HKSAR shall effectively prevent, suppress and impose punishment for any act or activity endangering national security. The HKSAR takes a clear and resolute stance on safeguarding national sovereignty, security and development interests.
The National Security Law has been promulgated and implemented for more than two years. It has made significant contribution to maintaining order and security in Hong Kong. Not only has the Law restored order, it has also reinforced the rule of law. Following transition from chaos to order, Hong Kong is advancing from stability to prosperity, with security and stability enhanced in all respects. I will summarise the relevant matters and submit a report to the Central Authorities as requested as soon as possible.
In a recent case of public concern, that is the ad hoc admission of Timothy Wynn Owen, King’s Counsel of the United Kingdom, granted by the High Court for representing Lai Chee-ying who was charged with conspiracy to commit collusion with a foreign country or with external elements to endanger national security and other offences, the Secretary for Justice made an application for leave to appeal against the judgment on the application for ad hoc admission. The Appeal Committee of the Court of Final Appeal dismissed the application of the Department of Justice this afternoon.
In the report to be submitted to the CPG, I will mention this case and recommend that a request be made to the NPCSC to issue an interpretation in accordance with Article 65 of the National Security Law, in order to clarify the following question:
Based on the legislative intent and objectives of the National Security Law, can an overseas solicitor or barrister who is not qualified to practise generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?
The underlying considerations and concerns of my recommendation for interpretation include:
- The National Security Law is a national law enacted under the principle of “one country, two systems” for safeguarding national sovereignty and security. It was enacted against the actual circumstances which had seriously endangered national security arising from the opposition to the proposed legislative amendments to the Fugitive Offenders Ordinance, including massive outbreak of violence, advocacy for “Hong Kong independence”, and foreign interference in the affairs of Hong Kong. In an article published by the Office of the Central Leading Group on Hong Kong and Macao Affairs and the Hong Kong and Macao Affairs Office of the State Council in April 2021, it was pointed out that the turmoil in 2019 was a “colour revolution” in Hong Kong, and in the light of such situation, the Central Authorities authorised the NPCSC to enact the National Security Law.
- The National Security Law has an overriding effect on the local laws of the HKSAR. Article 62 provides that this Law shall prevail where provisions of the local laws of the HKSAR are inconsistent with this Law. National security is a matter of top priority. We must implement the National Security Law effectively and prevent all types of risks endangering national security.
- National security risks are complex and vary frequently. Such risks include planning, conspiracy, collusion, provision of funds and other preparatory acts, which happen under concealment and out of sight at the early stages. Where collusion with external elements is involved, the latent acts may even take place overseas. Although such risks are generated before occurrence of substantive offences, they are not easy to detect. Therefore, prevention of acts and activities endangering national security is no easy task, and everyone should stay vigilant to them.
- Foreign countries and external elements are hostile towards the enactment and implementation of the National Security Law, and have on multiple occasions blatantly attempted to interfere in the implementation of the National Security Law. Out of their political interests and agenda, some foreign countries have announced or adopted measures against China and the HKSAR, including imposing various forms of “sanctions”, restrictions or prohibition on sale and use of products etc. Some foreign officials or politicians openly exerted pressures on the legal sector and even the business sector to boycott Hong Kong, preventing them from participating in normal activities in Hong Kong. Because of the relentless foreign interference in the affairs of Hong Kong, we must step up alertness to the national security risks it brings about.
- Various provisions of the National Security Law such as Articles 3, 8 and 42 require relevant authorities to perform the duty to effectively prevent acts and activities endangering national security.
- Under the prevailing system in the HKSAR, there is no effective means to eliminate any conflict of interests on the part of overseas solicitors or barristers with the national interests of their country; no effective means to ensure they would not be subject to the pressure, coercion or manipulation of governments, organisations or individuals of foreign countries; and no effective means to ensure they would comply with the confidentiality requirements in relation to State secrets, trade secrets or personal information which they come to know in the practice of law as stipulated in Article 63 of the National Security Law. In the light of these potential risks, is permitting such overseas solicitors or barristers to participate in the handling of national security cases consistent with the legislative intent and objectives of the National Security Law to safeguard national security?
- Hong Kong residents have the right to choice of lawyers. As explained in the case law, a defendant’s right to choice of lawyers means a right to choose lawyers who are available and entitled to practise, and not overseas lawyers who are not qualified to practise. Therefore, even though defendants in cases concerning offence endangering national security cannot engage overseas lawyers, it is still consistent with the respect and protection of defendants’ rights and freedom as required by Articles 4 and 5 of the National Security Law.
- As the Chief Executive of the HKSAR and Chairperson of the Committee for Safeguarding National Security of the HKSAR, I am accountable to the CPG for affairs relating to safeguarding national security in the HKSAR by virtue of Articles 11 and 12 of the National Security Law.
Based on the above considerations, I will, in the report to be submitted to the CPG, recommend that a request be made to the NPCSC to interpret the relevant provisions of the National Security Law aforementioned or any other relevant provisions in order to clarify the above question. I will submit the report to the CPG as soon as possible, and request the Central Authorities to handle the matter expeditiously
HKSAR Govt Press Release