Brief Assessment on the Implementation Rules for Article 43 of the HK National Security Law

Author: Shih-Shiuan Kao, legal researcher of Doublethink Lab.

Photo by Claudio Schwarz. Source: Unsplash Photo.

This document is a brief and pilot assessment of 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 (hereinafter Implementation Rules) that was promulgated on Jul. 7. Since the author is not an expert of Hong Kong legal system, most speculations in this document concerning the interpretation of legal texts and the practice of this Rules are based on news reports since the Anti-Extradition Movement and other analyses that are already available.

Conclusions (TL;DR):

• The Schedule 4 of the Implementation Rules authorize the Hong Kong Administration nearly unlimited power of speech censorship on the internet, disabling network service without a warrant, and obtaining personal identification records. The worst-case scenario of enforcement of the Rules would be the total silence of dissidents on the internet by the Authority, and international platform service providers (including but not limited to: social network service and communications applications) would be totally blocked, thus Hong Kong become annexed into the enclosure of the PRC Great Firewall.
• The Schedule 5 of the Implementation Rules legitimizes the encumbrances by the Hong Kong Administration placed upon foreign diplomatic organizations, the Taipei Economic and Cultural Office in Hong Kong, INGOs or local NGOs that collaborate with foreign entities. Concerning related risk of law enforcement, cease of business in Hong Kong would become one of possible outcomes for these organizations.
• The Schedule 6 of the Implementation Rules permit communication interceptions and covert surveillance without warrants issued by courts.
• The Schedule 1 (Search), Schedule 2 (Restriction on Travel), Schedule 3 (Restraints on Properties) and Schedule 7 (Production of Materials and Information) in the Implementation Rules are the coercive measures available to the Hong Kong Administration. Although these measures are de iure reviewed by courts, there are also provisions of emergency authorizations (i.e. exceptions); substantial and effective ex ante or ex post judicial reviews, by the court to restrain possible abuse of these coercive measures, may not be feasible, since the judges presiding relevant cases would be appointed by the Chief Executive of Hong Kong.

Search (Schedule 1)

The provisions authorize the police to perform searches of specified places for evidence when there is a reasonable ground to believe the existence of such evidence. However, the same provisions also authorize the police to detain any person found in that place; in this scenario the police may also perform a search incident authorized by § 54 (2) of the Police Force Ordinance on this person. (Note: the author hasn’t consulted a Hong Kong legal expert for this speculation.) The search described in this Schedule, in principle, requires a warrant issued by the court; however, warrantless exigent searches are also permitted by this provision without the need of reporting to the court later. It is unclear whether exigent searches would become the common practice, but it makes little difference since the presiding judges for relevant cases should be appointed by the Chief Executive of Hong Kong, according to the HK National Security Law, therefore substantial and effective ex ante or ex post judicial reviews by the court to restrain possible abuses of these coercive measures may not be feasible.

Restriction on Travel (Schedule 2)

Applied by the police, the court may issue a written notice requiring a person who is reasonably suspected of committing offenses of HK National Security Law not to leave Hong Kong and to surrender travel documents to the police, for no more than 6 months. This restriction can be extended for further 3 months. Non-compliance would result in committal to custody for no more than 28 days. All related proceedings shall be conducted in chambers. The person could apply to the court and the Commissioner of Police (and must inform the Commissioner) for the permission to leave Hong Kong or the return of travel documents, with conditions that: the person shall deposit or enter into recognizance, appear at specified time and place and surrender travel documents to police again at specified time.

Restraints on Properties (Schedule 3)

When the Secretary of Security reasonably believes that certain properties held by any person (including any interest and not limited to ownership) is related to the offenses described in the HK National Security Law, may restrain anyone from directly or indirectly dealing with those properties for no more than 2 years, unless being extended by the court, or orders (including restraint orders, charging orders, confiscation orders or forfeiture orders) have been made in relation to the properties. Anyone who knows or suspects that any property is related to the offense shall disclose the information to the police and keep secrecy about such disclosure; non-disclosure is considered to be an offense under this provision. The Secretary of Justice may make an application to the court to restrain, charge, confiscate the properties.

Removal of Messages Endangering National Security or Requiring Assistance (Schedule 4)

When the police has a reasonable ground for suspecting that an electronic messages on an electronic platform (i.e. platform which provide intermediary services, including website, web applications, e.g. Faceboom, Google, online forums and communication apps) may endanger the national security, the police may ask

• the author or the platform to remove, restrict or cease access to that messages; or
• the hosting service provider to remove, restrict or cease access to that messages, or discontinue the part of the whole of the platform; or
• The network service provider to restrict or cease access to the part or the whole of that platform.
• All these disabling actions only require the approval of the Secretary for Security, not the warrant by a court.

When applied by the police, the court may issue a warrant that requires any service provider (including platform, hosting and network service providers; VPN service may be included) to provide identification record (i.e. any records containing information about the identity of the person) of a person who is suspected that s/he published a messages endangering national security to the police. Assistance on decryption of these data may also be required.

• The provision also permits warrantless exigent search and no report duty is required.

Non-compliance of these requirements commits criminal offense. Provisions in this schedule are exercisable regardless of whether the message, service, identification records or decryption keys exist within Hong Kong.

Concerning all provisions depicted above, vagueness of all offenses described in the HK National Security Law, and responses of platform service providers such as Facebook and Google following the commencement of this Implementation Rules, the worst-case scenario of enforcement of the Rules would be the total silence of dissidents on the internet by the Authority, and international platform service providers (including but not limited to: social network service and communications applications) would be totally blocked, thus Hong Kong become annexed into the enclosure of the PRC Great Firewall.

Duty of Providing Information for Foreign and Taiwan Political Organizations and Agents (Schedule 5)

• When the Commissioner of Police reasonably believes that it’s necessary to prevent crimes describe in the HK National Security Law, and with the approval of the Secretary of Security, the Commissioner may require foreign or Taiwan political organizations (including government, political parties or other organizations that pursues political ends) and their agents to disclose the personal particulars of their staff in Hong Kong, the activities, assets, sources of incomes, etc. in Hong Kong. Non-compliance is considered to be an offense under this provision.
• By this provision the Hong Kong Administration may encumber foreign diplomatic organizations, the Taipei Economic and Cultural Office in Hong Kong, INGOs or local NGOs that collaborate with foreign entities. Concerning related risk of law enforcement, cease of business in Hong Kong would become one of possible outcomes for these organizations.

Communication Interceptions and Covert Surveillance (Schedule 6)

With the authorization of Chief Executive (when the necessity and proportionality were considered), the police may conduct communication interceptions, type 1 and type 2 surveillance or other related measures (e.g. interference of properties, trespass or retrieval of device) for no more than 6 months; such authorization can be extended for more than once and without the warrant issued by the court. Here are definitions of certain terms mentioned above:

• Type 1 surveillance: all covert surveillance other than type 2 surveillance.
• Type 2 surveillance: using a listening device or optical surveillance device to record or monitor activities or spoken words; the person using the device shall be a person who is reasonably expected to participate in the activities or conversation, or with the consent of such person (which is similar to the false friend doctrine in American law.)
• Covert surveillance: surveillance conducted with the use of surveillance devices on any person that is entitled to a reasonable expectation of privacy, in a manner calculated to ensure that the person is unaware of such surveillance.

Lawyer is an exception for communication interceptions and covert surveillance, unless there is reasonable ground to believe that the lawyer or other persons residing in the residence are involved in the offense.

Telecommunications interception products shall not be admissible in evidence other than to prove a relevant offense.

For emergency purposes the Commissioner may authorize communication interceptions and type 1 surveillance for no more than 48 hours and cannot be extended; the emergency authorization shall seek the ex post confirmation by the Chief Executive in writing.

Production of Materials and Information (Schedule 7)

When the Secretary of Justice reasonably believes that certain person or persons have information or are in possession of materials that are likely to be relevant to the investigation, the Secretary may apply to the court for an order that requires that person or persons to answer questions, provide information or materials to the Secretary. Non-compliance or interference of such order is considered a criminal offense.

• It is not clear whether there are exemptions under this provision, since there seems to be conflicts between § 2 (9) and § 2 (11).