Opinion | NSL: Professionalism and restraint in public prosecutions

By Grenville Cross

After the National Security Law for Hong Kong (NSL) was enacted on June 30, 2020, it was applied with considerable restraint. Although foreign propagandists have given the impression it is being used indiscriminately against anybody whom the authorities dislike, this could not be further from the truth, as the statistics show.

On July 11, Secretary for Security Chris Tang Ping-keung revealed that, whereas 265 people had, as of the previous week, been arrested for acts and activities that were suspected of having endangered national security, only 161 of them and five companies were actually charged. Of the 80 defendants tried, all were convicted, by what he called "our independent and impartial courts", and the statistics are instructive.

By comparison, the Independent Commission Against Corruption prosecuted 394 suspects between January 2021 and December 2022 (excluding election complaints), and 198 were convicted. Between 2020 and 2022, the Environmental Protection Department prosecuted 2,155 suspects, while the Companies Registry issued 307 summonses against suspects in one month alone — June 2023.

When the NSL was drafted, it was recognized that cases endangering national security had to be handled by specialists at every stage, and could not be entrusted to any Tom, Dick or Harry. This was understandable, as the country's very survival could be at risk in particular cases. Throughout proceedings, cases needed to be conducted by reliable people of proven ability who knew exactly what they were doing.

The NSL, therefore, provided for the creation, within the Hong Kong Police Force, of "a department for safeguarding national security with law enforcement capacity" (Art.16), and it is now staffed by investigators of the highest quality.

Within the Department of Justice, the NSL mandated the establishment of "a specialized prosecution division responsible for the prosecution of offenses endangering national security and other related legal work" (Art.18), and this means that only the best prosecutors advise on cases and conduct the prosecutions (and appeals) at court.

Once, moreover, cases reach the courts, the NSL provided they must be handled by judicial officers who had been specially designated by the chief executive (Art.44), and cases are now tried by the judiciary's creme de la creme.

A conviction rate thus far of 100 percent indicates just how carefully the Police Force's national security department has investigated the cases and prepared them for prosecutors' consideration. It also shows there is excellent cooperation between the Police Force and the specialized prosecution division, whose prosecutors have skillfully presented the evidence in court and argued the law.

This cannot have been easy, as the NSL's offenses, which include terrorism, subversion, secession and collusion with foreign forces to harm the country, are novel in this jurisdiction. Some of its procedures are also unfamiliar, including those governing the sentencing of offenders. Whatever the teething difficulties, the specialized prosecutors have clearly mastered their portfolios.

Whatever their concerns over foreign intimidation, they (the judges) have continued, as required by their judicial oath, to "safeguard the law and administer justice without fear or favor", and this must be profoundly reassuring for everybody who is charged before them with endangering national security, and also for their lawyers

The designated judges who have tried the cases are all highly experienced professionals, well-versed in criminal law and procedure. They have ensured that the fair trial guarantees — incorporated into the NSL through the twin stipulations that the International Covenant on Civil and Political Rights (ICCPR) "shall be protected" and that "human rights shall be respected and protected in safeguarding national security" (Art.4) — are fully enjoyed by the defendants.

The NSL, of course, does not affect the traditional threshold test for conviction deployed throughout the common law world, and the judges will have convicted the defendants only once the prosecutors have convinced them that they were guilty beyond a reasonable doubt.

On April 4, the secretary for justice, Paul Lam Ting-kwok, emphasized that although Hong Kong has a population of over 7 million, the number of cases under the NSL has been small, meaning "only a very small number of people have actually been affected", and Tang's prosecution statistics bear this out.

As to why the number of prosecutions is not larger, the NSL's salutary influence will undoubtedly have played a part, in deterrence terms. Some malcontents have also fled abroad and become foreign agents, while those who have remained have largely pulled themselves together. With the purification of the education system, the days when the minds of young people could be polluted with perverted agendas are well and truly over, and national pride and social responsibility are now prioritized in the city's educational institutions.

Although 80 defendants have been convicted of offenses endangering national security, they all have a right to appeal against their conviction or sentence, and some of them are exercising it. Their appeals will also be heard by designated appellate judges, who will adjudicate upon the merits of cases exactly as they do in every other criminal appeal.

If a conviction is legally flawed or otherwise unsafe and unsatisfactory, it will be overturned, just as a sentence will be reduced if it is manifestly excessive or wrong in principle. If, moreover, the defendant's initial appeal is unsuccessful, it can be renewed at a higher level, up to and including the Hong Kong Court of Final Appeal (HKCFA), although there will have to be convincing grounds to secure a hearing.

Although the designated judges (and specialist prosecutors) have been threatened by anti-China forces in the US Congress, and pressure has been placed on the overseas nonpermanent judges to withdraw from the HKCFA by senior parliamentarians in the UK, this has not affected those who have been targeted, whose integrity is impeccable. Whatever their concerns over foreign intimidation, they have continued, as required by their judicial oath, to "safeguard the law and administer justice without fear or favor", and this must be profoundly reassuring for everybody who is charged before them with endangering national security, and also for their lawyers.

Although there are currently a number of national security trials underway or in the pipeline, two high-profile cases have attracted particular Western interest. One is the ongoing trial of the 47 suspects accused of conspiring to commit subversion by plotting to paralyze the Legislative Council and disrupt the constitutional order (31 of whom have pleaded guilty), and the other is the trial, scheduled for September, of the media magnate Jimmy Lai Chee-ying, who allegedly endangered national security by colluding with foreign forces.

Although some people in the West are frothing at the gills over these two sets of proceedings, there are no grounds for concern. All the defendants will receive a fair trial, in which, like the 80 who have already been convicted, they will enjoy the ICCPR's protections as well as their traditional common law rights. If they are convicted, they will be punished in the manner prescribed by law, and they can then appeal.

What, however, must be clearly understood is that no amount of foreign interference will affect the smooth operation of Hong Kong's highly resilient legal system, which is not only tried and tested, but is also operated by people of the highest caliber.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.