Safeguarding National Security Ordinance/Part 8

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Part 8
Mechanisms for Safeguarding National Security and Relevant Protections

110. Chief Executive in Council may make subsidiary legislation for safeguarding national security

(1) The Chief Executive in Council may make subsidiary legislation for the needs of safeguarding national security and the better carrying into effect of the following laws and interpretation—

(a) the HK National Security Law, including provisions in its Chapter V concerning the mandate of the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region;

(b) 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;

(c) this Ordinance.

(2) Any subsidiary legislation made under this section may provide that a contravention of the subsidiary legislation is an indictable offence and may prescribe penalties for it of a fine not exceeding $500,000 and imprisonment not exceeding 7 years.

111. Administrative instructions in connection with safeguarding national security

(1) The Chief Executive may issue an administrative instruction to any department or agency of the Government or any public servant to give directions in relation to any of the following matters—

(a) the implementation of any instruction given by the Central People’s Government in relation to safeguarding national security;

(b) the work on safeguarding national security;

(c) the provision of rights, exemptions, facilitation and support that are necessary for the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region in performing its mandate under Chapter V of the HK National Security Law in accordance with the law;

(d) any other matter that the Chief Executive considers conducive to safeguarding national security.

(2) Any department or agency of the Government or any public servant must comply with an administrative instruction mentioned in subsection (1).

112. Judgements and decisions of National Security Committee

(1) A meeting of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (National Security Committee) is to be convened by the chairperson. The National Security Adviser is to sit in on meetings of the National Security Committee. The National Security Adviser is to provide advice on matters relating to the duties and functions of the National Security Committee.

(2) The secretariat of the National Security Committee is to convey, and assist in the follow-up of and the giving of effect to, the judgements and decisions made by the National Security Committee in its performance of duties and functions under the provisions of the HK National Security Law.

(3) If the law of the HKSAR confers any function on a person, any person, in making any decision in the performance of the function, must respect, and implement in accordance with the law, the judgements and decisions of the National Security Committee.

113. Provision of advice, or giving of directions, in relation to national security education etc.

The Chief Secretary for Administration may provide advice, or give any direction, to any person whom the Chief Secretary for Administration considers appropriate, for promoting national security education, raising the awareness of residents of the HKSAR of national security and of the obligation to abide by the law, or strengthening public communication, guidance, supervision and regulation of the work on safeguarding national security and prevention of terrorist activities.

114. Public servants to assist in work on safeguarding national security

(1) A public servant must provide all such assistance that is necessary for the work on safeguarding national security.

(2) Accordingly, a public servant must provide any department or agency that is responsible for the work on safeguarding national security, and its personnel, in the HKSAR, with all reasonable facilitation, support, backing and protection in a timely manner, including providing the necessary manpower and other necessary resources in a timely manner.

(3) A public servant must exercise all powers and discretions that the public servant has (including any power and discretion concerning the giving of any exemption) to discharge the obligation under this section.

115. Chief Executive to issue certificate in relation to question of whether national security or state secrets involved

(1) Apart from in the circumstances mentioned in Article 47 of the HK National Security Law, the Chief Executive may also, in circumstances that the Chief Executive considers appropriate, issue a certificate to certify whether an act or matter involves national security or whether any material involves state secrets.

(2) A certificate under subsection (1)—

(a) may be issued whether or not any proceedings have been commenced; and

(b) may be issued by the Chief Executive on the Chief Executive’s own motion.

(3) If a Court receives in any proceedings a certificate issued by the Chief Executive certifying a question under this section, the court is to be regarded as having obtained a certificate issued by the Chief Executive certifying the question under Article 47 of the HK National Security Law.

116. Adjudication of cases concerning national security etc.

(1) The Courts are to adjudicate cases concerning national security independently in accordance with the relevant provisions of the Basic Law and the HK National Security Law, free from any interference. A person must respect and safeguard the Courts’ adjudication of cases concerning national security in accordance with the law.

(2) The Department of Justice is to control criminal prosecutions of cases in connection with offences endangering national security in accordance with the relevant provisions of the Basic Law and the HK National Security Law, free from any interference.

(3) The Government must take necessary measures to ensure the personal safety, and the safety of the property and place of residence, of any specified person and any aider, are subject to necessary protection.

(4) In this section—

aider (協助者) means an informer of, or a witness in, a case concerning national security;

specified person (指明人士) means—

(a) any of the personnel of any department or agency that handles cases concerning national security, or is responsible for the work on safeguarding national security, in the HKSAR; or

(b) a judicial officer, staff member of the Judiciary, counsel or solicitor, who handles a case concerning national security.

117. Signing or certification of legal documents in respect of specified cases etc.

(1) This section applies to a document in respect of a specified case (relevant document) if an Ordinance or a direction of a Court—

(a) requires the document to be signed or certified by any of the following persons—

(i) a party to the case;

(ii) a specified person representing a party to the case;

(b) requires the document to state the name of any of the following persons—

(i) a party to the case;

(ii) a specified person representing a party to the case;

(c) permits the document to be signed or certified by any of the following persons—

(i) a party to the case;

(ii) a specified person representing a party to the case; or

(d) permits the document to state the name of any of the following persons—

(i) a party to the case;

(ii) a specified person representing a party to the case.

(2) However, this section does not apply to—

(a) an affidavit or any other document made on oath;

(b) a statutory declaration;

(c) a document made by a person as a witness for stating the truth; or

(d) a statement of truth made under an Ordinance or a direction of a Court for verifying a document.

(3) Where the relevant document—

(a) is one that falls within subsection (1)(a)(i) or (c)(i)—the document may be signed or certified by a specified person representing the party, and need not be signed or certified by the party; and

(b) is one that falls within subsection (1)(b)(i) or (d)(i)—the document may state the name of a specified person representing the party, and need not state the name of the party.

(4) Where the relevant document—

(a) is one that falls within subsection (1)(a)—the requirement under subsection (1)(a) is met if the document contains a signature specified in subsection (5);

(b) is one that falls within subsection (1)(b)—the requirement under subsection (1)(b) is met if the document contains a name specified in subsection (6);

(c) is one that falls within subsection (1)(c)—the document may contain a signature specified in subsection (5); and

(d) is one that falls within subsection (1)(d)—the document may contain a name specified in subsection (6).

(5) The signature specified for the purposes of subsection (4)(a) and (c) is—

(a) if the relevant document must or may (including may by virtue of subsection (3)(a)) be signed by a specified person and the specified person is a public servant—a signature made in the name of the department or agency represented by the specified person;

(b) if the relevant document must or may (including may by virtue of subsection (3)(a)) be signed by a specified person and the specified person is a counsel—a signature made in the name of the department or agency (or solicitors’ firm) represented by the person who gives instructions to the specified person; or

(c) if the relevant document must or may (including may by virtue of subsection (3)(a)) be signed by a specified person and the specified person is a solicitor—a signature made in the name of the solicitors’ firm represented by the specified person.

(6) The name specified for the purposes of subsection (4)(b) and (d) is—

(a) if the relevant document must or may (including may by virtue of subsection (3)(b)) state the name of a specified person and the specified person is a public servant—the name of the department or agency represented by the specified person;

(b) if the relevant document must or may (including may by virtue of subsection (3)(b)) state the name of a specified person and the specified person is a counsel—the name of the department or agency (or solicitors’ firm) represented by the person who gives instructions to the specified person; or

(c) if the relevant document must or may (including may by virtue of subsection (3)(b)) state the name of a specified person and the specified person is a solicitor—the name of the solicitors’ firm represented by the specified person.

(7) For the purposes of subsection (1), if—

(a) a case is a case concerning national security; or

(b) proceedings are brought against a person for an offence endangering national security, and the person is a party to a case,

the case is a specified case.

(8) For the purposes of subsection (7)(b), proceedings for an offence endangering national security are brought against a person if—

(a) a magistrate issues a warrant or summons against the person under section 72 of the Magistrates Ordinance (Cap. 227) in respect of the offence;

(b) the person is arrested for the offence (whether or not the person is released on bail);

(c) the person is charged with the offence after being taken into custody without a warrant; or

(d) an indictment charging the person with the offence is preferred by the direction or with the consent of a judge under section 24A(1)(b) of the Criminal Procedure Ordinance (Cap. 221).

(9) In this section—

specified person (指明人士) means a public servant, counsel or solicitor;

state (述明), in relation to a name, means mark, print, set out or otherwise provide the name.

118. Unlawful disclosure of personal data of persons handling cases or work concerning national security

(1) If a person commits an offence under section 64(3A) of the Personal Data (Privacy) Ordinance (Cap. 486), and—

(a) the data subject referred to in that section is—

(i) a specified person;

(ii) a family member of a specified person;

(iii) an aider; or

(iv) a family member of an aider; and

(b) the person commits the offence—

(i) with intent to prevent or deter the specified person’s performance of his or her functions as a specified person or the aider’s provision of assistance in relation to a case concerning national security; or

(ii) in consequence of a thing done (or attempted to be done) by the specified person in the lawful performance of his or her functions as a specified person or by the aider in providing assistance in relation to a case concerning national security,

the person commits an offence and is liable on conviction on indictment to imprisonment for 7 years.

(2) If a person commits an offence under section 64(3C) of the Personal Data (Privacy) Ordinance (Cap. 486), and—

(a) the data subject referred to in that section is—

(i) a specified person;

(ii) a family member of a specified person;

(iii) an aider; or

(iv) a family member of an aider; and

(b) the person commits the offence—

(i) with intent to prevent or deter the specified person’s performance of his or her functions as a specified person or the aider’s provision of assistance in relation to a case concerning national security; or

(ii) in consequence of a thing done (or attempted to be done) by the specified person in the lawful performance of his or her functions as a specified person or by the aider in providing assistance in relation to a case concerning national security,

the person commits an offence and is liable on conviction on indictment to imprisonment for 10 years.

(3) If—

(a) any—

(i) HKSAR resident;

(ii) body corporate that is incorporated, formed or registered in the HKSAR; or

(iii) body of persons, whether corporate or unincorporate, that has a place of business in the HKSAR,

does any act outside the HKSAR; and

(b) the act would have constituted an offence under subsection (1) or (2) had it been done in the HKSAR,

the resident or body commits the offence.

(4) For the purposes of subsection (3), a reference to commit an offence under the Personal Data (Privacy) Ordinance (Cap. 486) in subsection (1) or (2) is to be read as including to do an act that—

(a) is done outside the HKSAR; and

(b) would have constituted the offence had it been done in the HKSAR.

(5) In this section—

aider (協助者) means an informer of, or a witness in, a case concerning national security;

family member (家人), in relation to a person, means another person who is related to the person by blood, marriage, adoption or affinity;

HKSAR resident (特區居民) means—

(a) a Hong Kong permanent resident; or

(b) a person who is qualified to be issued with an identity card under the Registration of Persons Ordinance (Cap. 177) but has no right of abode in Hong Kong under the Immigration Ordinance (Cap. 115);

specified person (指明人士) means—

(a) any of the personnel of any department or agency that handles cases concerning national security, or is responsible for the work on safeguarding national security, in the HKSAR; or

(b) a judicial officer, staff member of the Judiciary, counsel or solicitor, who handles a case concerning national security.

119. Unlawful harassment of persons handling cases or work concerning national security

(1) If—

(a) a person (Party A), with intent to cause alarm or distress or specified harm to a specified person (or a family member of the specified person) or an aider (or a family member of the aider) (Party B)—

(i) uses any intimidating, abusive or offensive words to Party B by any means, or otherwise makes to Party B any intimidating, abusive or offensive communication; or

(ii) does any intimidating, abusive or offensive act towards Party B by any means;

(b) a reasonable person, having regard to all the circumstances, would have anticipated that so using the words to Party B, making the communication to Party B or doing the act towards Party B would cause alarm or distress or specified harm to Party B;

(c) the words, communication or act, in fact, causes alarm or distress or specified harm to Party B; and

(d) Party A falls within the description in any of subparagraphs (i) and (ii)—

(i) Party A uses the words, makes the communication, or does the act with intent to prevent or deter the specified person’s performance of his or her functions as a specified person or the aider’s provision of assistance in relation to a case concerning national security;

(ii) Party A uses the words, makes the communication, or does the act in consequence of—

(A) a thing done (or attempted to be done) by the specified person in the lawful performance of his or her functions as a specified person; or

(B) a thing done (or attempted to be done) by the aider in providing assistance in relation to a case concerning national security,

Party A commits an offence and is liable on conviction on indictment to imprisonment for 10 years.

(2) If a person is charged with an offence under subsection (1) and the charge alleges that the person falls within the description in subsection (1)(d)(ii), it is a defence for the person to establish that it was reasonable in the circumstances to use the words, make the communication, or do the act.

(3) A person is taken to have established a matter that needs to be established for a defence under subsection (2) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(4) In this section—

aider (協助者) means an informer of, or a witness in, a case concerning national security;

family member (家人), in relation to a person, means another person who is related to the person by blood, marriage, adoption or affinity;

specified harm (指明傷害), in relation to a person, means—

(a) psychological harm to the person;

(b) harm causing the person to be concerned for the person’s safety or well-being; or

(c) harm causing the person to be concerned for damage to the property of the person;

specified person (指明人士) means—

(a) any of the personnel of any department or agency that handles cases concerning national security, or is responsible for the work on safeguarding national security, in the HKSAR; or

(b) a judicial officer, staff member of the Judiciary, counsel or solicitor, who handles a case concerning national security.

120. Specified Court may on application take anonymity measures

(1) If a specified Court is satisfied that it is necessary for safeguarding national security to take certain measures in relation to any existing or contemplated proceedings (regardless of whether the proceedings concern a case concerning national security, and regardless of whether the proceedings take place in that Court or any other Court) to protect the identity of any specified person from disclosure, the specified Court may, on ex parte application by the Secretary for Justice, order the measures be taken.

(2) Without limiting subsection (1), an order made under that subsection may prohibit a person from disclosing—

(a) information that shows the identity of a specified person; or

(b) information from which the identity of a specified person may be inferred.

(3) A hearing of an application under subsection (1) must take place in a closed court.

(4) If an order is made under subsection (1), a person affected by the order may apply to the specified Court to vary or revoke the order.

(5) The specified Court must not vary or revoke the order unless the specified Court, having regard to all the circumstances of the case, is satisfied that injustice would be caused if the order is not varied or revoked.

(6) To avoid doubt, unless the specified Court orders otherwise, the Secretary for Justice need not, for the purposes of an application under subsection (4), provide to the applicant documents submitted to the specified Court at the time when the Secretary for Justice made the application under subsection (1).

(7) To avoid doubt—

(a) this section does not limit any other power that any Court may exercise; and

(b) section 117 does not prevent a specified Court from ordering under subsection (1) any measures to be taken in relation to a document mentioned in section 117(2).

(8) In this section—

specified Court (指明法院) means any of the following courts 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 District Court;

(e) a Magistrates’ Court;

specified person (指明人士), in relation to any existing or contemplated proceedings, means the following person whom the proceedings involve or are likely to involve—

(a) a public servant;

(b) a judicial officer or a staff member of the Judiciary;

(c) a counsel or solicitor; or

(d) an informer or witness.

121. Offence of contravening order prohibiting disclosure of identity

(1) If a person, knowing that an order prohibiting disclosure of identity has been made, discloses information the disclosure of which is prohibited by the order, the person commits an offence and is liable on conviction on indictment to imprisonment for 5 years.

(2) It is a defence for a person charged with an offence under subsection (1) to establish that the person had a reasonable excuse or lawful authority to make the disclosure.

(3) A person is taken to have established a matter that needs to be established for a defence under subsection (2) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(4) If—

(a) any—

(i) HKSAR resident;

(ii) body corporate that is incorporated, formed or registered in the HKSAR; or

(iii) body of persons, whether corporate or unincorporate, that has a place of business in the HKSAR,

does any act outside the HKSAR; and

(b) the act would have constituted an offence under a subsection (1) had it been done in the HKSAR,

the resident or body commits the offence.

(5) In this section—

order prohibiting disclosure of identity (身分披露禁令) means an order made under section 120(1) prohibiting any person from making the disclosure mentioned in section 120(2).