By Prof Guobin Zhu, School of Law of the City University of Hong Kong, Ms Celeste Lo, Solicitor of Hong Kong, Research Assistant of the School of Law of the City University of Hong Kong

Distinct from conventional criminal legislation, a key characteristic of modern national security laws is their requisite extra-territorial reach, designed to address threats to national security originating outside the nation’s soil. The recently established Safeguarding National Security Ordinance (“SNSO”) is of no exception. While it upholds the general territorial principle outlined in section 9 of the SNSO, penalising and deterring national security violations within Hong Kong’s territory, it also extends its jurisdiction beyond these confines through the personality principle and the protective principle. Given the constraints of a newspaper article’s word count, this discussion will focus solely on the personality principle as applied by the SNSO, examining its convergence and divergence with foreign common law jurisdictions, notably that of England and Wales.

General and Special Personality Principle under the SNSO

Under the personality principle, a state is entitled to exercise jurisdiction over its national or persons with status assimilated to nationality, such as permanent residency, even when they committed the crime outside the geographical territory of the state, and even when the perpetrator is no longer a national or has only become a national after the crime was committed. The application of the personality principle is typically undisputed due to its critical role in mitigating national security risks. Indeed, it is indispensable, as nationals can pose threats to their own country from abroad. In the case of Hong Kong, since Hong Kong is only a special administrative region of the People’s Republic of China, Hong Kong enjoys no national status. For this reason, the personality principle adopted by SNSO is appropriately modified to adapt to the constitutional regime of Hong Kong.

SNSO practises two distinct kinds of personality principle. In the general personality principle, the national security offences stipulated in SNSO can apply to Hong Kong permanent residents and people who are “qualified” to be issued with an identity card under the Registration of Persons Ordinance but has no right of abode in Hong Kong under the Immigration Ordinance, regardless of whether they enjoy Chinese citizenship. This general type of personality principle applies to unlawful drilling, assisting members of Chinese armed force to abandon duties, inciting disaffection of public officers and others. Conversely, in the special personality principle, the national security crimes stipulated in the SNSO only applies to Hong Kong residents with Chinese citizenship with or without the right of abode. Offences such as treason, insurrection, incitement of members of Chines armed force to mutiny belong to this category. Given that the Public Consultation Paper on Article 23 of the Basic Law does not elucidate the reasoning behind these differentiated applications, this article aims to explore the specific provisions of the SNSO and provide a rationale for the employment of the special personality principle concerning the three aforementioned crimes.

Special Personality Principle Applicable to Treason and Treason Related Offences

The SNSO delineates three national security crimes under the special personality principle, all of which are either directly treasonous or closely associated with the act of treason. The original section 9 of the Crimes Ordinance defined treason as killing, wounding, causing bodily harm to Her Majesty, or levying war against her etc. However, section 10 of the SNSO has revised this definition. Now, treason is committed when a Chinese citizen joins an external armed forces that is at war with China, levies war against China, instigates a foreign country to invade China with force, or uses forces or threatens to use force with intent to endanger the sovereignty, unity or territorial integrity of China. To reinforce the gravity of treason, the SNSO introduces the offence of insurrection, which prohibits a person from joining or assisting an armed force that is in an armed conflict with a Chinese armed force. It also forbids a person from initiating armed conflict against a Chinese armed force or committing an act to endanger the sovereignty, unity or territorial integrity of China with intention or recklessness. Moreover, the SNSO criminalises the incitement of mutiny within the Chinese armed forces. While such mutiny may be punishable under Chinese laws and regulations, it may not be so punishable under Hong Kong’s laws. Thus, without a statutory offence of incitement to mutiny, it would be impossible to prosecute under Hong Kong’s common law for inciting a member of the Chinese armed forces to mutiny, as the act itself is not a crime in Hong Kong. Therefore, the statute’s provision for punishing incitement to mutiny is both necessary and judicious.

It is not difficult to observe that the three national security offences which apply the special personality principle are all intrinsically linked to treason and the corresponding duty of allegiance, given that they all prohibit Chinese citizen from levying war or assisting in armed conflict with an armed force of China. In common law, the essence of the offence of treason lies in the violation of the allegiance owed to the Sovereign. The duty of allegiance derives from two distinct sources – natural allegiance and local allegiance. Natural allegiance is a perpetual obligation for all citizens of the Sovereign, regardless of their location. Local allegiance is owed by anyone residing within the Sovereign’s domain, and so long as they or their families are receiving the Sovereign’s protection.

Although the original provision delineating the offence of treason in the Crimes Ordinance does not expressly provide for its application to Chinese citizens residing outside Hong Kong and Non-Chinese citizens residing within Hong Kong, the abovementioned common law principles imply that the offence of treason is applicable to both groups of people since they owe natural or local allegiance to China, depending on their citizenship status and residence. However, when the SNSO limited the operation of the offence of treason to Hong Kong permanent residents with Chinese citizenship, it basically restricted the application of the offence to people owing a duty of natural allegiance to China.

Then, does the provision that treason is applicable to people who are “qualified” to be issued with an identity card but has no right of abode in Hong Kong revive its application to people owing local allegiance to China? We respectfully argue that the answer is no. To begin with, the concept of being “qualified” to be issued with an identity card of Hong Kong is absent in the Registration of Persons Ordinance. Pursuant to section 3 of the Ordinance, every person in Hong Kong is “obliged” or “required” to apply for an identity card or permanent identity card unless exempted or excluded by regulations made by the Chief Executive in Council in accordance with section 7. There is a notable difference between enjoying the qualification to apply for an identity card and under the obligation or requirement to apply for one. If a person is qualified to apply for an identity card, that implies that he has satisfied certain requirements to make the application but at the same time enjoys a discretion to decide whether to proceed with the application. On the other hand, if a person is obliged or required to apply for an identity card, he is mandated to apply for one and has no option to deviate from that obligation. Under the Registration of Persons Ordinance, all Hong Kong residents aged 11 over are required to register for an identity card unless they are genuine travellers in transit or persons who have been permitted to stay for not more than 180 days. In short, when a Hong Kong resident turns 11, he is mandated to apply for an identity card as soon as possible without the freedom to choose otherwise. Reading this interpretation together with the provision of treason in SNSO, the offence of treason should be understood as being applicable to persons who are obliged or required to apply for an identity card.

If the provision were limited to this extent, the offense of treason would apply equally to individuals owing either natural or local allegiance to China. However, SNSO introduces an additional criterion of Chinese citizenship for the jurisdictional scope of treason. Consequently, individuals who are required to apply for a Hong Kong identity card would not fall within the ambit of treason if they do not hold Chinese citizenship.

Whether the Provisions of SNSO Are Sufficient to Exclude the Common Law from Operation?

It raises a compelling question as to whether the explicit stipulation in the SNSO, which confines the application of treason to Chinese citizens, effectively overrides the common law principle that individuals owing local allegiance to the Sovereign are equally barred from committing treasonous acts against their country of residence. According to the principal rules of statutory interpretation, a statute must be interpreted as a whole for harmonious and consistent understanding. If the three national security crimes specifically exclude its jurisdictional reach from Non-Chinese citizens while other national security crimes which adopts general personality principle are not so limited, the natural conclusion is that the legislators specifically intended to exclude residents of Hong Kong without Chinese citizenship from being subject to the three treasonous crimes.

However, the operation of common law principle is not specifically excluded by any provisions in the SNSO. Having regard to SNSO’s principles to actively prevent, suppress and punish acts and activities endangering national security, the exclusion of people owing local allegiance from treason charges may compromise this important objective. Historical precedent shows that during World War II, the United Kingdom leveraged treason laws to penalise individuals holding British passports, yet lacking British citizenship, who assisted the German government. Should the SNSO exclude those owing local allegiance from treason offenses, it could potentially allow individuals with permanent residency in Hong Kong, but without Chinese citizenship, to commit acts of treason without repercussion, thus introducing a vulnerability in Hong Kong’s national security framework. Further, according to well established rules of statutory interpretation, common law will not be altered unless through express words or necessary implications.

In light of the conflicting arguments presented, it remains ambiguous whether the SNSO has successfully precluded individuals bound by a local duty of allegiance to China from facing charges of treason. The possibility persists that the common law principle continues to be in effect, pending interpretation and judgment by the Hong Kong courts to provide us with necessary clarifications.

Special Personality Principle as an Effective Balance Between National Security and Human Rights Protection

Assuming that the absence of express exclusion of local allegiance in the offence of treason does not revive the common law principle, this article argues that such omission serves as an crucial safeguard for human rights and freedom within Hong Kong’s national security framework. Treasonous offences are extremely serious offence, with the potential penalty of life imprisonment upon conviction of three such offences. Should these laws apply indiscriminately to Non-Chinese residents of Hong Kong, it could significantly dissuade international talents from living and investing in the region, thus gravely jeopardising Hong Kong’s stature as a global and cosmopolitan hub. Moreover, considering the minimal likelihood of foreigners committing acts of treason in Hong Kong, it is more judicious to exempt Non-Chinese citizens from the purview of treason charges.

On the whole, the personality principles embodied in the SNSO are crafted with meticulous care and professionalism. Special personality principle is devised to prohibit Chinese citizens from committing treasonous offences. Non-Chinese citizens are exempted from the severe implications of treason, ensuring a proper balance between the safeguard of national security and the continuous development of Hong Kong as an international financial centre. This approach effectively dispels international concerns that Hong Kong might prioritise national security in the expense of economic progress. With the SNSO in effect, Hong Kong is poised to flourish as a world-class city, welcoming and nurturing talent from diverse sectors to live and invest.

The views do not necessarily reflect those of Bauhinia Magazine.