Editor’s note: The following are remarks of Grenville Cross SC at the 34th Presidents of Law Associations in Asia Summit held in Hong Kong today.
On July 1, Hong Kong will celebrate its 27th year as a special administrative region of the PRC under the Basic Law’s “50-years unchanged” formula. Its situation is often under global scrutiny, and now is as good a time as any to take stock. Although the last 27 years have been something of a roller-coaster, the city has emerged stronger from its experiences, and I will explain why.
Since 1997, Hong Kong’s development has been underpinned by its Basic Law, the remarkable instrument that embodies Deng Xiaoping’s “one country, two systems” governing policy. This policy, which provides that the capitalist system and way of life shall be unchanged for 50 years, provided the city with a great start in life in 1997, not least in respect of its legal arrangements. Indeed, Hong Kong’s greatest asset has always been the rule of law
Through the Basic Law, the common law-based legal system has been maintained (Art.8), and the city has remained aligned to the traditions of the common law world. An independent Judiciary is stipulated by the Basic Law (Art.85), and this ensures, for example, that trials are fairly conducted, that litigants enjoy a level playing field, and that basic legal principles are respected in the adjudication of cases. It is, moreover, heartening that the International Covenant on Civil and Political Rights, which contains the fair trial guarantees, applies in Hong Kong, by virtue of the Basic Law (Art.39) and the national security legislation, and the significance of this cannot be overestimated.
It has helped, for example, to ensure that the highest standards of criminal justice are maintained in trials of whatever type, and that those accused of crime are fairly treated throughout the proceedings. Indeed, at the very outset of the NSL it is stipulated not only that “human rights shall be respected and protected in safeguarding national security,” but also that the ICCPR “shall be protected in accordance with the law” (Art.4), and this extends to the newly-enacted SNSO (Sect.2). The close involvement of the ICCPR in our legal system has helped to ensure just trial outcomes, with rights of appeal being guaranteed to anybody convicted of an offence.
After its reunification in 1997, a central feature of Hong Kong’s legal progress was the creation of the Hong Kong Court of Final Appeal. It has been vested by the Basic Law with the power of final adjudication and it presides over the city’s courts and develops its jurisprudence. It comprises four permanent judges and 12 non-permanent judges, eight of whom come from other common law jurisdictions. This arrangement is highly unusual, but local and overseas judges have pooled their talents to enrich our legal system and advance the rule of law. Their judgments have been highly acclaimed, and have been cited with approval in other common law jurisdictions.
Although anti-China forces have sought to undermine the “one country, two systems” policy by targeting the overseas non-permanent judges, the majority have fortunately chosen to stay. The latest recruits, Justices Keane and Allsop, were the chief justices of the Federal Court of Australia. Upon his appointment last year, Justice Keane said “how successful” the HKCFA has been in “upholding the rule of law,” and he was absolutely right.
Although, thus far, all the overseas judges have come from Australia, Canada, New Zealand and the United Kingdom, there is no reason why the net should not be cast more widely in future. Eminent jurists from, for example, India, Ireland, Malaysia, Singapore or South Africa might also be invited to serve, and help enrich our jurisprudence. The judiciary has sustained our way of life after 1997, which is undoubtedly why Hong Kong was ranked 23rd out of the 142 countries and jurisdictions surveyed in the World Justice Project’s Rule of Law Index 2023 (ahead, for example, of the US, Italy, Poland and Greece).
In 1984, when China and the UK signed the Sino-British Joint Declaration (JD), it provided that Hong Kong’s capitalist system and way of life would remain unchanged for 50 years after 1997, and this was incorporated into the Basic Law in 1990 (Art.5). This left open the question of what would happen after the 50 years were up in 2047, and people were concerned. However, when President Xi Jinping visited Hong Kong in 2022, he put everybody’s minds at rest. He said the “one country, two systems” policy had been successful and “must be adhered to in the long run,” meaning after 2047. This was highly reassuring for the people of Hong Kong, for the business world and for investors, and must also have come as a pleasant surprise for the UK, from whence I came over 45 years ago.
In one of his books about Hong Kong, the late journalist, Russell Spurr, wrote “So much, and yet so little, has changed,” and I know exactly what he meant. In some areas, there have been huge changes during my years in Hong Kong. When I arrived, the Governor was always a British national appointed by the British monarch on the advice of the British Prime Minister. The Governor, moreover, appointed all the members of our parliament, the Legislative Council, and there was no popular involvement, and no question of universal suffrage. After 1997, all that changed.
The Chief Executive of the Hong Kong SAR, the Governor’s successor, is now a Hong Kong citizen of Chinese nationality, who is chosen in Hong Kong by Hong Kong people and then appointed by the Central People’s Government. The Legislative Council is no longer appointed by the executive, but is chosen by local people, through direct and indirect elections. When, moreover, the Basic Law was promulgated by the National People’s Congress in 1990, observers were amazed to see it stipulated that universal suffrage was the “ultimate aim” for the choosing of both the Chief Executive and the Legislative Council, an aspiration that would have been unimaginable in the colonial era. Indeed, although the Chief Executive could have been chosen by universal suffrage in 2017, this was unfortunately blocked in 2015, when opposition parties voted down the enabling legislation, as they felt it did not go far enough.
Another important change in 1997 was the replacement of the Judicial Committee of the Privy Council in London with the HKCFA as the city’s ultimate appellate body, based in Hong Kong. What this meant was that, for the first time, people who wanted to pursue appeals could seek justice locally, and no longer had to go to England. Apart from anything else, the costs of pursuing an appeal in the Privy Council were exorbitant, and legal aid was often unavailable to litigants. This was a powerful disincentive for many people, but they can now seek redress at home. Our people have taken full advantage of their new access to justice, and in 2023, for example, the HKCFA disposed of 372 applications for leave to appeal from the High Court in criminal and civil cases, and determined 22 substantive appeals. This is a huge increase over the Privy Council era, and shows people have confidence in their new legal arrangements.
So much for change, but what of continuity? Apart from our capitalist system and way of life continuing under the “one country, two systems” policy, we retain our common law legal system, our independent judiciary, our independent prosecution service, our independent legal profession, and our basic rights. Indeed, although, before 1997, the independence of judges and prosecutors was purely a matter of convention, their independence is now constitutionally guaranteed by the Basic Law, which is reassuring for everybody concerned.
Although the Basic Law is the bedrock of our freedoms and way of life, there has been much interest around the world in our national security arrangements. While it is sometimes said our national security laws violate the Sino-British Joint Declaration of 1984, this cannot withstand scrutiny. The JD said nothing about Hong Kong’s future national security arrangements, for good reason. As the UK’s prime minister Margaret Thatcher and foreign secretary Geoffrey Howe recognized at the time, the future national security arrangements of Hong Kong were entirely a matter for China, just as the UK’s own national security was its own preserve. However, China’s approach to national security in Hong Kong was extraordinary, and let me explain why.
In all the countries of which I am aware, national security laws are enacted by national parliaments, not regional legislatures. This is because there is a national plan, which applies uniformly throughout the country. However, when the NPC enacted the Basic Law in 1990, it decided that Hong Kong would be allowed to enact national security laws “on its own” (Art.23). This was a remarkable concession, and a great show of faith in the city. Although the NPC could simply have extended the PRC’s own National Security Law to Hong Kong in 1997, it chose not to do so, and the reasons are illuminating. It was recognized that national security is a highly sensitive issue, that Hong Kong people might resent the imposition of an unfamiliar law, and that they would welcome the opportunity to draft their own law in their own time.
However, Hong Kong, sadly, was unable to discharge its constitutional responsibility. Although the government made an attempt to enact the national security law in 2003, the proposals were abandoned after hostile forces, encouraged by foreign powers, whipped up fears and orchestrated street demonstrations. Although the government bent over backwards to allay popular concerns, making over fifty amendments and producing three draft bills, it was to no avail.
In consequence, there was a legal vacuum where the national security laws were supposed to be, and this was cynically exploited by China’s antagonists. Although this lacuna did not matter too much initially, the consequences were dire, as the world saw in 2019-20. Once the insurrection erupted, the authorities lacked the tools they needed to protect the city from the secessionists and those who wanted to wreck the “one country, two systems” policy. Those of us who witnessed what happened at first hand will never forget the horrors that unfolded in our home city, where nobody and nothing was safe.
Our parliament was trashed, our courts were petrol bombed, our judges were threatened, our public amenities and universities were vandalized, our train stations were torched, and our banks were damaged. People from elsewhere in China faced abuse on the streets, hostility in the universities, denial of services in shops and restaurants, and destruction of businesses. To provoke Beijing, the fanatics even fire-bombed its representative offices in Hong Kong, burned the national flag and invited foreign intervention. It was a ghastly time for everybody, and the question in many people’s minds was whether the “one country, two systems” policy could survive.
Although those orchestrating the violence undoubtedly hoped to provoke a military response, Beijing refused to fall into the trap. Initially, it was left to the police, the prosecutors and the judges to uphold the rule of law. However, as time went on, it became increasingly apparent that the authorities lacked the means they needed to regularize the situation, meaning the “one country, two systems” policy was in real peril. Something, therefore, had to be done, and if Beijing was not going to intervene militarily, the question on everybody’s lips was how it would react, and the rest is history.
Once Beijing enacted the NSL law in 2020, the tide turned and Hong Kong was safe. Although the whole experience was traumatic, it was also cathartic, and it will never again be possible for hostile forces to create mayhem on our streets. Although now is not the time for any detailed consideration of the NSL, what can be said is that most places have national security laws, that Hong Kong’s laws are milder than most and human rights heavy, with the ICCPR prioritized in their application.
When the NSL was introduced, Beijing adopted a minimalist approach. Instead of enacting all the national security laws that Hong Kong needed to legislate for under its Basic Law, it only enacted those that were immediately required to contain the insurrection and restore peace and stability. It would, of course, have been fully justified in enacting all the laws stipulated in the Basic Law, given that Hong Kong had been unable to deliver on its responsibilities for 23 years, but Beijing still retained faith in Hong Kong’s ability to legislate for the remainder. So it was that, after 27 years, Hong Kong was finally able to enact the Safeguarding National Security Ordinance (SNSO) this year, on March 23, covering outstanding offences like treason, sabotage, sedition, espionage and foreign interference, and China’s defensive network is now complete.
One remarkable feature of the NSL has been the restraint with which it has been applied, although this is rarely acknowledged in the West, where the impression is given that hundreds, if not thousands have been locked up. Whereas the population of Hong Kong is approximately 7.5 million, only 173 persons and 5 companies had, as of May 1, 2024, been prosecuted for endangering national security in the four years since the NSL was enacted. This is a world away from what the myth makers would have people believe.
In drafting the SNSO, the Hong Kong SARG studied national security laws in places like Australia, Canada, Singapore, the UK and the US, and lessons were learned from each of them. One striking feature to emerge was that those foreign jurisdictions have not incorporated human rights protections into their national security regimes, as Hong Kong has done. However, Hong Kong’s national security arrangements have faced criticisms, and, although I cannot rebut them all today, I will address four significant issues of which you may be aware.
Much has been said about the arrangement whereby trials are conducted by judges who have been designated as national security judges by the chief executive. It has been alleged they are hand-picked for particular cases, and will come up with the verdicts the chief executive wants, which could not be further from the truth. All our judges and magistrates are appointed by the chief executive, which has never been controversial, and it is standard practice for there to be horses for courses. Whereas, for example, some judges specialize in commercial, family and admiralty matters, others concentrate on company law cases, constitutional and administrative law cases, and personal injury cases. When it comes to national security cases, which can involve the nation’s very survival, nobody should be surprised that every effort is made to choose experienced judges who are of the highest quality and whose integrity is impeccable, and there is nothing strange about this.
As the chief executive is a non-lawyer, he knows little about particular judges, and this is why the NSL provides for the chief justice to be consulted during the designation process (Art.44). Those judges who are designated are not some special breed, but come from the existing judiciary, where they will have proved their worth. All judges, whether designated or not, are bound by their judicial oath, which requires them to “administer justice without fear or favor,” and this does not suddenly evaporate upon designation. Once designated, they are not assigned to cases by the chief executive, but by the judiciary itself. This is exactly the same procedure as in other criminal and civil cases, about which nobody ever complains. And, as the chief justice, Andrew Cheung Kui-nung, explained in 2022, judicial independence in Hong Kong “exists as a fact,” and has not been affected by the NSL.
Another myth that requires slaying concerns the use of 3-judge panels rather than juries to try national security cases. Although jury trials are customary when serious cases are transferred to the High Court, there has never been a right to trial by jury in Hong Kong, and most cases are tried in the lower courts without a jury. The NSL recognizes that circumstances can arise whereby a jury trial is not in the interests of justice.
Although a jury trial is certainly possible, there are situations in which another means of achieving justice is necessary, and it does not affect the fairness of the trial. Where, therefore, the Secretary for Justice issues a certificate directing that the accused be tried without a jury on the “grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members,” the NSL provides that the case will be tried in “the Court of First Instance without a jury by a panel of three judges” (Art.46).
After the Secretary for Justice has issued the certificate, that is normally the end of the matter. Once the Secretary concludes, for example, that the jurors or their families are under threat and that a fair trial by jury is no longer possible, the only realistic remedy is a non-jury trial by a 3-judge panel. If an accused person is aggrieved by the decision to dispense with a jury, it can be challenged by way of judicial review, if taken in bad faith. This arrangement is by no means unique.
In the UK, for example, the Criminal Justice Act (2003) allows a trial to be conducted by a judge alone if it is decided there is a “real and present danger” of jury tampering, and that, once steps are taken to neutralize the threat, the likelihood of it arising would be “so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury”.
In 2015, when the Judicial Committee of the UK’s Privy Council considered an appeal from the Turks and Caicos Islands, Lord Hughes said “An order for trial by judge alone can be made where the interests of justice require it, just as in England it can only be made where it is necessary”. Like considerations apply in Hong Kong, and a 3-judge trial is only ordered where the interests of justice so require, but only in cases where national security is engaged.
Although the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, the European Court of Human Rights has decided that States have considerable leeway in deciding how to ensure it. It has held there is no right to a jury trial, and that the focus should ultimately be on whether the trial, howsoever conducted, was fair. It has explained that the ECHR’s right to a fair trial “does not specify trial by jury as one of the elements of a fair trial hearing in the determination of a criminal charge” (see X & Y v Ireland, 1980).
It is clear, therefore, that Hong Kong has followed other jurisdictions, and that its restrictions on jury trials ensure that trials cannot be corrupted or otherwise undermined, which is in the public interest. And remember, the prosecution always has the burden of proving the guilt of the accused, and a guilty verdict is only possible if guilt is proved beyond reasonable doubt.
The third issue concerns the choice of defense counsel in national security trials. Some of you may have been following the national security trial of the former media magnate, Jimmy Lai Chee-ying. A pre-trial issue arose over whether he was entitled to retain the services of a British King’s Counsel from London, Timothy Owen. As the Basic Law entitles accused persons to retain counsel of their choice to represent them at trial (Art.35), it was argued that Lai should be allowed to retain Mr Owen’s services, although there was more to it than that.
Under Hong Kong’s unique legal arrangements, overseas lawyers can be admitted by the High Court on an ad hoc basis for particular cases, provided it is in the public interest, as where the lawyer possess an expertise not available in Hong Kong. Each year, barristers from the UK are specially admitted, usually to handle cases of particular complexity or sensitivity. However, with the enactment of the NSL, the law on overseas admissions in national security cases was amended, and an overseas lawyer who wishes to appear in a national security case must first obtain a “Notice of Permission to Proceed” from the chief executive, who will need to be satisfied there are no security concerns. In other words, there is no blanket prohibition on lawyers appearing, and decisions are taken on a case-by-case basis. Although reasonable enough, the exclusion of Mr Owen from the Jimmy Lai trial was condemned in the European Parliament, which was extraordinary.
After all, other major common law jurisdictions, including Australia, Canada, Ireland, the UK and the US, do not allow overseas lawyers to appear in their courts to conduct criminal cases, let alone national security cases. Their cases are conducted by locally qualified lawyers. It is precisely because of its global status and its desire for legal excellence that Hong Kong allows overseas lawyers to appear in its courts, albeit on an ad hoc basis, although there have to be limits. Quite why the European Parliament singled Hong Kong out for criticism when its lawyer admission policy is far more liberal than most other places is hard to fathom, although double standards will have played their part.
As everybody recognizes, national security cases are particularly sensitive, and problems might arise if a defense lawyer who lives and works abroad is involved in a trial. He or she will not have been security vetted, and there is no guarantee that state secrets will be safeguarded. Indeed, case papers containing state secrets may have to be sent to the UK for case preparation, and they could become accessible to others. The way in which national security investigations are conducted could be of huge interest to foreign intelligence services, and lawyers could find themselves in an invidious situation if told it was their patriotic duty to disclose what they have learned about China’s national security arrangements.
However, any foreign lawyer who lives and practices in Hong Kong is entitled to appear in a national security trial. When, therefore, the Basic Law refers to people having the right to choose a lawyer, it means a lawyer from the pool of locally qualified lawyers, and not somebody from the other side of the world. Indeed, one of the lawyers currently defending Jimmy Lai is the Hong Kong-based Marc Corlett, a King’s Counsel from New Zealand. If, for whatever reason, a foreign lawyer based in Hong Kong were to disclose confidential information in violation of the NSL (Art.63(2)), he or she could be disciplined and prosecuted, although this would be impossible if on overseas lawyer were to do the same thing.
The fourth issue of purported concern to foreign powers concerns the extraterritorial reach of our national security laws. The legal basis for extraterritorial jurisdiction lies in the protective principle of international law, which allows a state to assert jurisdiction over any person whose conduct outside its boundaries threatens its vital interests, including its security or governmental functions. The protective principle can be asserted without regard to where or by whom the act is committed. Many countries have extraterritorial laws, and Hong Kong has emulated their example.
The UK’s National Security Act 2023, for example, provided valuable guidance for Hong Kong when its SNSO was being drafted. Whereas it created new national security offences, the decision was also taken to give them extraterritorial effect. It specifically provides that if those new offences are committed in a place outside the UK, the person responsible is prosecutable, whatever their nationality (s.36), and Hong Kong has followed suit.
The United States, moreover, uses the protective principle to combat crimes against the state, including espionage, regardless of where or by whom the act is committed. It is currently seeking the extradition of the Wikileaks founder, Julian Assange, from the UK, on seventeen charges related to the unauthorized disclosure of classified information considered detrimental to US national security, and it is relying on the extraterritorial reach of its Espionage Act 1917. He is being pursued even though he is an Australian national, and notwithstanding his alleged crimes having occurred outside the US.
Since reunification, Hong Kong’s inherent strengths have seen it through good times and bad. They include a business-friendly environment, a convenient geographical location at the heart of Asia, an attractive tax regime, a free and open market for capital and information, and a common law based legal system that is ideal for investors, dispute resolution and anybody who wants to do business in this part of the world and take advantage of the China market. Its anti-corruption regime is legendary, and it is also one of the safest places in the Asia-Pacific in which to live and work.
So, welcome to Asia’s World City, and enjoy your stay. Please let everybody know Hong Kong has a bright future, and that our fundamentals are sound. The last governor, Chris Patten, once said “nobody has ever made money betting against Hong Kong, and Hong Kong usually comes out on the right side of the argument, and certainly on the right side of history,” and he was right.
Grenville Cross is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
