Legislative Council's House Committee held a special meeting on Thursday to discuss the government's latest amendments to national security subsidiary legislation, agreeing to form a subcommittee on the Safeguarding National Security (Procedural Matters) Regulation.
Law Society president Roden Tong said the amendments mainly cover three provisions: defining which offences fall under "offences endangering national security" as referred to in Section 7(d) of the Safeguarding National Security Ordinance; clarifying that alternative offences also constitute "offences endangering national security" for legal proceedings; and reiterating provisions in Chapter 4 of the Hong Kong National Security Law and the Safeguarding National Security Ordinance that apply to offences endangering national security.
Citing the Court of Final Appeal's judgment in HKSAR v Ng Hau Yi Sidney (2021), Tong said the legislative intent of the National Security Law is to operate in parallel with Hong Kong's laws, striving for "convergence, compatibility and complementarity" with local legislation to address past legal uncertainties. Where inconsistencies arise, the National Security Law prevails.
Tong said the amendments aim to provide greater clarity on the mechanism for defining "other offences endangering national security under the laws of the Hong Kong Special Administrative Region" under the National Security Law and the Safeguarding National Security Ordinance. He said he saw no new powers, offences or penalties from the amendments.
Regarding the amendment to Section 7(d) of the Safeguarding National Security Ordinance, Tong said its purpose is to more clearly define other local offences of a national security nature. Under Article 47 of the National Security Law and Section 115 of the Safeguarding National Security Ordinance, the Chief Executive is already empowered to issue certificates on whether any matter involves national security, and such certificates are binding on the courts.
Tong noted this power is not unique to Hong Kong, with similar arrangements in the UK, US and Australia. On alternative charges, the arrangements are based on existing criminal procedure principles. If conduct involves national security and one of the original charges is a national security offence, other non-national security offences arising from the same conduct would also be handled under national security case procedures, including bail conditions and designated judge requirements.
Tong said the courts must still sentence based on all applicable principles, considering the seriousness of the offence, the defendant's role and culpability, and any mitigating or aggravating factors. He said the Procedural Matters Regulation does not change existing provisions under the National Security Law and the Safeguarding National Security Ordinance, nor does it create new offences or alter penalties for existing offences.
