As a popular aphorism goes, “Law cannot reach where enforcement will not follow.” It is no exception to the laws to safeguard national security. Robust enforcement of the laws is crucial for safeguarding national integrity, security and development interests. While the scope and gravity of the proposed offenses in the Article 23 legislation public consultation have lately been the talk of the town, a review of how the police enforcement and investigative power can be better exercised in investigating certain acts endangering national security under the proposed local legislation has unfortunately dropped off the radar.

Laws without enforced consequences are merely suggestions. The importance of establishing and maintaining effective enforcement mechanisms for the proposed Article 23 legislation cannot be overemphasized. Pursuant to Article 4 of the “5.28 Decision” promulgated by the National People’s Congress, the Hong Kong Special Administrative Region must, among other things, strengthen the enforcement forces for safeguarding national security, and step up enforcement to safeguard national security. Article 7 of the National Security Law for Hong Kong (NSL) also sets out the requirement for the HKSAR to refine the relevant laws on safeguarding national security. In short, Hong Kong’s legal system must ensure that the enforcement institutions and mechanism for safeguarding national security can be implemented effectively and operated continuously.

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At present, Article 42(1) of the NSL stipulates that when applying the laws in force in the HKSAR concerning matters such as detention and time for trial, the law enforcement and judicial authorities of the HKSAR shall ensure that cases concerning offenses endangering national security are handled in a fair and timely manner to effectively prevent, suppress and impose punishment for such offenses. In particular, as for the current detention of and bail arrangement for the arrested people during investigations, it is provided in Section 52 of the Police Force Ordinance, which states that as regards an arrested person whom the police have decided to charge, unless the offense appears to be of a serious nature or the police reasonably consider the person should be detained before a magistrate, the police may discharge the arrested person on his/her entering into a recognizance. In Section 52(3) of the same ordinance, the person arrested may be discharged on entering into recognizance if the police consider that the inquiry into the case cannot be completed forthwith. It reflects a generally permissive approach for the police to grant bail to the arrested suspects.

Nevertheless, drawing on the enforcement experience gained from handling the arrested people in the “black-clad riots”, considering the more serious criminal nature of offenses endangering national security and the more far-reaching social implication that such an arrested person may pose to the law and order of society, it is debatable that the equally lax standard for the police bail arrangement as set out in Section 52 of the Police Force Ordinance should be applicable to the forthcoming Article 23 legislation. Compared to other general crimes, the police may encounter graver difficulty in gathering evidence, and thus more time will be required in investigation in national security related offenses. Such cases may implicate many local and external organizations involving huge amounts and complicated fund flows, coupled with a certain degree of external anti-China forces’ interferences, making such criminal acts more insidious, complex and serious in nature.

With reference to relevant provisions in the National Security Act 2023 of the UK, it is suggested that police officers should be conferred with more extensive power in preventing and investigating acts and activities endangering national security during the investigation. It is proposed that police officers of at least the rank of superintendent can be empowered to direct that a detained arrestee involved in an offense endangering national security may not consult a particular solicitor or to delay such a detained person’s consultation with a solicitor if the police officers have reasonable grounds for believing such a consultation would result in the following consequences:

a) Interference with or harm to evidence of an indictable offense.

b) Interference with or physical injury to any person.

c) The alerting of people who are suspected of having committed an indictable offense but who have not been arrested for it.

d) The hindering of the recovery of property obtained as a result of an indictable offense.

e) Interference with the gathering of information about a person’s involvement in a foreign power threat activity.

f) Making it more difficult, by the alerting of a person, to prevent a foreign power threat activity.

g) Making it more difficult, by the alerting of a person, to secure a person’s apprehension, prosecution, or conviction in connection with the person’s involvement in a foreign power threat activity.

To prevent the suspects from endangering national security by further communicating with external sources or other members of their syndicate during the police investigation, it is suggested that the court can, upon the police’s application, be empowered to issue a restriction order against the suspects at least on their association and communication with other persons subject to the magistrate’s satisfaction who has reasonable belief that:

a) The suspects will not abide by the police instructions and report to the police according to the bail conditions.

b) The suspects will pervert the course of justice.

c) The suspects will endanger national security.

Such restrictions imposed on the individual suspects who were involved in offenses endangering national security are not unprecedented, as more restrictive measures are found in relevant provisions in the UK’s National Security Act 2023. Pursuant to the UK practice, the restrictive measures against individuals are broader and more draconian, ranging from the restriction of the movement of individuals, the handling of property, to even the individuals’ work or studies. Such restrictions are necessary for law enforcement agencies to conduct investigation effectively and prevent any circumstances that may jeopardize the investigation and any risks of the arrested people further endangering national security. Compared to the UK legal counterpart, the above suggestion has struck a fine balance between protecting the suspects’ basic rights under investigation and the underlying need for safeguarding national security.

In rebuffing the Western critics’ scaremongering about the “chilling effect” of the proposed Article 23 legislation on people’s freedom of expression, it must first be noted that the needs for safeguarding national security and protecting people’s freedom and rights of expression are never incompatible. Nevertheless, every country, including those Western ones, has its own national security laws with offenses and restrictions against the suspects more stringent than the proposed Article 23 legislation. How come those fervent critics have stayed muted and turned a blind eye to their own national security laws? There comes only one viable conclusion: The critics are laden with a political agenda against China and its HKSAR.

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As a matter of fact, Article 19(3) of the International Covenant on Civil and Political Rights provides that the exercise of the right to freedom of expression, and to seek, receive and impart information and ideas come with duties and responsibilities and may be subject to restrictions provided by law and are necessary for the protection of national security or of public order. In other words, the concept of individuals’ rights and freedom of expression is not absolute, and the exercise of which should always be subject to the state’s protection of national security. It can thus be recognized that safeguarding national security should always prevail over the exercise of various individuals’ rights or freedom.

As enshrined in Article 23 of the Basic Law, which was promulgated in 1990, the time is long overdue for the HKSAR to shoulder the constitutional duty to enact the local legislation of Article 23. In addressing various national security risks and external interference in different forms, the proposed local legislation, coupled with the NSL, seeks to achieve further convergence, compatibility and complementarity in the city’s overall national security regime. For the effective enforcement of the local national security law, robust enforcement with greater power conferred to the enforcement agencies in the prevention, investigation and suppression of all acts endangering national security are vital.

The author is a practicing solicitor in Hong Kong and chairman of Y Legalites.

The views expressed in this article are the author’s and do not reflect those of the law firm where he works, nor those of China Daily.