Safeguarding National Security Ordinance/Part 1

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HONG KONG SPECIAL ADMINISTRATIVE REGION

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Ordinance No. 6 of 2024

An Ordinance to improve the law for safeguarding national security in the Hong Kong Special Administrative Region of the People’s Republic of China; and to provide for related matters.

[23 March 2024]

Preamble

WHEREAS it is a must—

(a) to resolutely, fully and faithfully implement the policy of “one country, two systems” under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;

(b) to establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security; and

(c) to prevent, suppress and punish acts and activities endangering national security in accordance with the law, to protect the lawful rights and interests of the residents of the HKSAR and other people in the HKSAR, to ensure the property and investment in the HKSAR are protected by the law, to maintain prosperity and stability of the HKSAR:

AND WHEREAS there are requirements under the Constitution of the People’s Republic of China and the following law, decision and interpretation for the HKSAR to perform the constitutional duty to safeguard national security and to improve the law for safeguarding national security in the HKSAR—

(a) the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, including the provisions of Article 23 of that Law;

(b) the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security (a translation of “《全國人民代表大會關於建立健全香港特別行政區維護國家安全的法律制度和執行機制的決定》”) adopted at the Third Session of the Thirteenth National People’s Congress on 28 May 2020;

(c) the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (a translation of “《中華人民共和國香港特別行政區維護國家安全法》”); and

(d) the Interpretation by the Standing Committee of the National People’s Congress of Article 14 and Article 47 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (a translation of “《全國人民代表大會常務委員會關於〈中華人民共和國香港特別行政區維護國家安全法〉第十四條和第四十七條的解釋》”) adopted at the 38th Session of the Standing Committee of the Thirteenth National People’s Congress on 30 December 2022:

AND WHEREAS—

(a) the executive, legislative and judicial authorities of the HKSAR must effectively prevent, suppress and punish acts and activities endangering national security in accordance with the law; and

(b) the residents of the HKSAR must safeguard the sovereignty, unity and territorial integrity of the state; any institution, organization and individual in the HKSAR must abide by the law of the HKSAR applicable for safeguarding national security, must not engage in acts and activities endangering national security, and must provide assistance in accordance with the law in response to a request made by the authorities when conducting the work on safeguarding national security in accordance with the law:

NOW, THEREFORE, it is enacted by the Legislative Council as follows—

Part 1
Preliminary

1. Short title

This Ordinance may be cited as the Safeguarding National Security Ordinance.

2. Principles of this Ordinance

This Ordinance is based on the following principles—

(a) the highest principle of the policy of “one country, two systems” is to safeguard national sovereignty, security and development interests;

(b) human rights are to be respected and protected, the rights and freedoms, including the freedoms of speech, of the press and of publication, the freedoms of association, of assembly, of procession and of demonstration, enjoyed under the Basic Law, the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to the HKSAR, are to be protected in accordance with the law; and

(c) for acts and activities endangering national security, there must be adherence to active prevention in accordance with the principle of the rule of law, and suppression and punishment in accordance with the law, and accordingly—

(i) a person whose act constitutes an offence under the law is to be convicted and punished in accordance with the law; no one is to be convicted and punished for an act that does not constitute an offence under the law;

(ii) a person is to be presumed innocent before the person is convicted by a judicial authority;

(iii) the right to defend, and other rights in a legal action, enjoyed in accordance with the law by a criminal suspect, defendant and other participants in the action are to be protected; and

(iv) a person who has already been finally convicted or acquitted of an offence in judicial proceedings is not to be tried or punished again for the same act.

3.Interpretation

(1) In this Ordinance—

Central Authorities (中央) means the body of central power under the constitutional order established by the Constitution of the People’s Republic of China, including (but not limited to) the National People’s Congress of the People’s Republic of China and its Standing Committee, the President of the People’s Republic of China, the Central People’s Government of the People’s Republic of China and the Central Military Commission of the People’s Republic of China;

Chinese armed force (中國武裝力量) means an armed force of China, that is the Chinese People’s Liberation Army, the Chinese People’s Armed Police Force or the militia;

Court (法院) means any of the following courts or tribunals of the Judiciary of the HKSAR—

(a) the Court of Final Appeal;

(b) the Court of Appeal;

(c) the Court of First Instance;

(d) the Competition Tribunal;

(e) the District Court;

(f) a Magistrates’ Court;

(g) the Lands Tribunal;

(h) the Labour Tribunal;

(i) the Small Claims Tribunal;

(j) the Obscene Articles Tribunal;

(k) the Coroner’s Court;

designated judge (指定法官), in relation to a Court, means a judicial officer designated among the judicial officers of the Court under Article 44 of the HK National Security Law;

external force (境外勢力)—see section 6;

external place (境外) means a region or place outside the HKSAR (other than the Mainland and Macao);

function (職能) includes a power and a duty;

HK National Security Law (《香港國安法》) means the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (a translation of “《中華人民共和國香港特別行政區維護國家安全法》”), as applied in the HKSAR under the Promulgation of National Law 2020 (L.N. 136 of 2020)*;

international organization (國際組織) means—

(a) an organization the members of which include 2 or more countries, regions, places, or entities entrusted with functions by any country, region or place; or

(b) an organization established by or under a treaty, convention or agreement made by 2 or more countries, regions or places,

and includes an institution (however described) under the organization;

judicial officer (司法人員) means—

(a) a judicial officer holding a judicial office specified in Schedule 1 to the Judicial Officers Recommendation Commission Ordinance (Cap. 92); or

(b) a judicial officer appointed by the Chief Justice.

(2) In this Ordinance, a reference to a case concerning national security includes—

(a) a case in connection with an offence endangering national security;

(b) a case in connection with any measures taken for, or in connection with, safeguarding national security, whether under the HK National Security Law, this Ordinance or any other law; and

(c) any proceedings in connection with the case mentioned in paragraph (a) or (b).

4. Meaning of national security

In this Ordinance or any other Ordinance, a reference to national security is a reference to the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security.

Note—

See Article 2 of the National Security Law of the People’s Republic of China (a translation of “《中華人民共和國國家安全法》”)—

“National security means the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security.” (a translation of “國家安全是指國家政權、主權、統一和領土完整、人民福祉、經濟社會可持續發展和國家其他重大利益相對處於沒有危險和不受內外威脅的狀態，以及保障持續安全狀態的能力。”).

5. Meaning of colluding with external force

For the purposes of an offence under this Ordinance, a person colludes with an external force to do an act if one or more of the following circumstances exist—

(a) the person participates in an activity planned or otherwise led by an external force, and the act is an act that the person’s participation in the activity involves;

(b) the person does the act on behalf of an external force;

(c) the person does the act in cooperation with an external force;

(d) the person does the act under the control, supervision or direction of, or on request by, an external force;

(e) the person does the act with the financial contributions, or the support by other means, of an external force.

6. Meaning of external force

(1) In this Ordinance—

external force (境外勢力) means—

(a) a government of a foreign country;

(b) the authority of an external place;

(c) a political party in an external place;

(d) any other organization in an external place that pursues political ends;

(e) an international organization;

(f) a related entity of a government, authority, political party or organization mentioned in paragraph (a), (b), (c), (d) or (e); or

(g) a related individual of a government, authority, political party, organization or entity mentioned in paragraph (a), (b), (c), (d), (e) or (f).

(2) In paragraph (f) of the definition of external force in subsection (1), a reference to a related entity of a government or authority is a reference to—

(a) a company that falls within either or both of the following descriptions—

(i) the directors of the company are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the government or authority;

(ii) the government or authority is in a position to exercise, by virtue of other factors, substantial control over the company; or

(b) a body that is not a company and that falls within either or both of the following descriptions—

(i) the members of the executive committee (however called) of the body are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the government or authority;

(ii) the government or authority is in a position to exercise, by virtue of other factors, substantial control over the body.

(3) In paragraph (f) of the definition of external force in subsection (1), a reference to a related entity of a political party in an external place, any other organization in an external place that pursues political ends or an international organization (the organization) is a reference to—

(a) a company that falls within either or both of the following descriptions—

(i) the directors of the company are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the organization;

(ii) the organization is in a position to exercise, by virtue of other factors, substantial control over the company;

(b) a body that is not a company and that falls within either or both of the following descriptions—

(i) the members of the executive committee (however called) of the body are accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the organization;

(ii) the organization is in a position to exercise, by virtue of other factors, substantial control over the body; or

(c) a body that falls within the following description: the law, constitution, rules or other governing documents by which the body is constituted (or according to which the body operates) contain either or both of the following requirements—

(i) a director, senior officer or employee of the body is required to be a member of the organization;

(ii) any part of the body is required to constitute a part (however called) of the organization.

(4) In paragraph (g) of the definition of external force in subsection (1), a reference to a related individual of a government, authority, political party, organization or entity is a reference to an individual that falls within either or both of the following descriptions—

(a) the individual is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the government, authority, political party, organization or entity;

(b) the government, authority, political party, organization or entity is in a position to exercise, by virtue of other factors, substantial control over the individual.

7. Meaning of offence endangering national security

To avoid doubt, in this Ordinance or any other Ordinance, a reference to an offence endangering national security includes—

(a) the four types of offences under the HK National Security Law (which are the offence of secession, the offence of subversion, the offence of terrorist activities and the offence of collusion with a foreign country or with external elements to endanger national security (a translation of “分裂國家罪、顛覆國家政權罪、恐怖活動罪及勾結外國或者境外勢力危害國家安全罪”));

(b) the offences under the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (a translation of “《中華人民共和國香港特別行政區維護國家安全法第四十三條實施細則》”);

(c) the offences under this Ordinance; and

(d) other offences endangering national security under the law of the HKSAR.

8. Interpretation of other Ordinances etc.

(1) If this Ordinance and another Ordinance would be inconsistent but for this subsection, that other Ordinance is to be read in a way that have the best regard to the object and purposes of this Ordinance.

(2) A reference to the security of the HKSAR (including a phrase that means the same as “security of the HKSAR”) in another Ordinance is to be read as including national security.

(3) If the law of the HKSAR confers any function on a person—

(a) the function is to be read as including a duty to safeguard national security; and

(b) accordingly, any person, in making any decision in the performance of the function, must regard national security as the most important factor, and give appropriate consideration to it accordingly,

and a reference in any Ordinance in connection with such a function is to be read accordingly.

9. Persons to whom offence provisions apply

Unless otherwise provided in a provision, an offence under this Ordinance applies to every person in the HKSAR. If an offence has extra-territorial effect, the extra-territorial effect is provided in the relevant Part.