National security certification power won’t affect appeals: Hong Kong justice chief

As Hong Kong marks the 29th anniversary of its return to Chinese rule on July 1, the South China Morning Post talks to the city’s senior officials about the administration’s achievements so far and what may lie ahead.
A new piece of subsidiary legislation that allows Hong Kong’s leader to certify a case as involving national security is unlikely to affect appeals, as the reclassification will not help authorities succeed in legal challenges, the justice chief has said.
Secretary for Justice Paul Lam Ting-kwok also described the defence of national security as “continuous work” to improve the city’s legal system, with subsidiary laws serving as a means to provide greater clarity and certainty.
“An appeal isn’t a retrial. The court will not hear new evidence and will only consider whether the judge made errors in the original verdict. I cannot see why classifying a case as national security would affect the prospects of an appeal,” he said.
Hong Kong passed new subsidiary legislation earlier this month to clarify the definition of national security offences by establishing a mechanism that vests certification power in the chief executive at any stage of proceedings.
The classification would affect the charges faced by defendants, including in relation to acts that occurred before the national security law came into force in 2020.
Procedures applicable to national security cases differ from those in ordinary criminal cases, including longer detention periods, stricter bail conditions, trials by designated judges and the denial of the standard one-third sentence remission for good conduct.
Lam said that in non-national security criminal trials heard in the High Court, which are conducted with a jury, prosecutors cannot appeal against acquittals.
While prosecutors can appeal acquittals in Magistrates’ Courts and the District Court, Lam said it was unlikely that authorities would still be unsure whether a case involved national security by the end of a trial.
Lam stressed that the subsidiary laws had only one purpose: to clarify existing legislation and remove any doubt about the meaning of offences endangering national security. He said criticism that the city had a restrictive legal environment under such laws was “unfair”.
“I think people should welcome any attempt by the government to make our law more certain, to reduce potential arguments and to avoid any doubt,” Lam said.
Introducing subsidiary laws was also part of the “continuous work” Lam described in defending national security. He said the city’s legal framework must be able to respond effectively to evolving risks and penalise relevant offences.
“We should always keep an eye on the overall environment. If new risks emerge, it is possible that our existing laws might not be effective. For everyone’s sake, we are responsible for updating our laws and introducing new ones,” Lam said.
He said he could not predict what national security risks the city might face in the future.
While authorities have been processing national security cases, the city has yet to decide the fate of about 7,000 residents who were arrested but not charged during the 2019 anti-government protests.
Police said 10,286 people aged between 11 and 87 were arrested in connection with the protests. As of the end of March, 2,978 had faced or entered judicial proceedings, while more than 7,000 had yet to be charged.

The Security Bureau announced a “special rehabilitation project” targeting these protesters in April. The programme includes sharing sessions, including by Cantopop singer Hins Cheung, who previously supported the national education and Occupy Central protests in 2012 and 2014, respectively, but later expressed “deep repentance” for his past words and actions.
Secretary for Security Chris Tang Ping-keung said the programme – which offers career planning services, internship opportunities, including placements with government departments, and trips to mainland China – had been operating for two years. Participants will not be prosecuted.
Some protesters said on social media that police had told them, both by phone and in writing, that investigations into their cases would be dropped after they attended activities under the programme.
Asked about the initiative, Lam said the Department of Justice considered two principles when making prosecution decisions – whether there was sufficient evidence and a reasonable prospect of conviction and whether prosecution was in the public interest.
He added that those arrested during the 2019 protests were not treated differently from other arrestees.
“Insofar as those persons are concerned, we have completed the provision of legal advice,” he said.
Lam also cited judiciary data showing that courts had concluded 97 per cent of all cases related to the 2019 protests as of last year.

Regarding recent instances in which protesters were charged years after their arrest, Lam said these were not new cases, with police taking action after the return of defendants who had absconded.
One such case involved Ami Chan Hui-ching, 21, who appeared at Eastern Court in March. She was accused of possessing two laser pointers and three cans of spray paint for unlawful purposes during the protests.
Prosecutors said Chan was first arrested in September 2019 and later moved to Australia in 2021 after police decided not to charge her at the time. They did not specify when she returned to Hong Kong.
Lam rejected suggestions that protesters who were not charged after their arrests in 2019 were in legal limbo.
“For persons who have been arrested but not charged, they are not subject to any legal restrictions. They are free to study, work and travel, like any other residents of Hong Kong,” Lam said.