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2020

26/05/2020
Last weekend, the Hong Kong community again saw the social unrest in Causeway Bay and Wan Chai carried out by some under the pretext of protest against the draft decision on national security legislation to be passed by the National People’s Congress (NPC). What’s even more worrying is that some wrongly claimed that the draft decision tramples on “one country, two systems” and is in breach of the Basic Law. The first question that one should ask is whether the NPC and its Standing Committee (NPCSC) have the power and authority to introduce law and other legal instrument in the People’s Republic of China (PRC). The answer is a clear yes because under Articles 57 and 58 of the Constitution of the PRC (PRC Constitution), the NPC is the highest organ of state power in the PRC, and the NPC and the NPCSC exercise the legislative power of the state to introduce laws and other legal instruments. It has also been made clear that the decision is to be made pursuant to Article 31, 62(2), (14) and (16) of the PRC Constitution and the relevant provisions of the Basic Law. Under Article 6 of the draft decision, the NPC delegated the NPCSC the duty to make the national security law applicable to the Hong Kong Special Administrative Region. The second question is whether such power and authority covers national security. Again, the answer is a clear yes because there is not any doubt that national security is a matter of national interest that concerns the whole population of the PRC and falls squarely within the purview of the Central authorities. National security is never part of Hong Kong’s autonomy. As such, the national security legislation to be enacted by the NPCSC is obviously within the ambit of defence and foreign affairs as well as other matters outside the limits of the autonomy of the Hong Kong SAR as under Article 18(3) of the Basic Law. The third question is on the relationship between Article 18(3) and Article 23 of the Basic Law. As a start, it is essential to understand that pursuant to Article 12 of the Basic Law, Hong Kong is a local administrative region of the PRC that comes directly under the Central People’s Government. Under Article 23 of the Basic Law, the Hong Kong SAR is authorised to enact laws to prohibit specific acts relating to national security. Given the purpose and context of Article 23 as well as the ordinary meaning of the terms used, such authorisation clearly does not preclude the Central authorities from introducing a national security legislation. It is fundamental to recognise that the Central authorities holds the ultimate responsibility for national security in all local administrative regions. It is trite that a delegation of power by the principal to the delegatee is not an abrogation or abdication of the responsibility and power of the principal. As such, any right minded person can conclude that the enactment of the national security law by the NPCSC and the addition of such law to Annex III of the Basic Law to be promulgated by the Hong Kong SAR is in compliance with Article 18(3) and is not in any way in conflict with Article 23 of the Basic Law. As can be seen from the above, the draft decision and the passing by the NPCSC of the national laws is in compliance with the “one country, two systems” principle as encapsulated in the PRC Constitution and the Basic Law. Given that the details of the design of the national security legislation to be enacted by the NPCSC and introduced to Annex III of the Basic Law to be promulgated by the Hong Kong SAR are not yet known, now is not the time to make unwarranted speculations. Unfortunately, some have apparently and perhaps misguidedly tried to smear and vilify the draft decision as well as the national security legislation to be enacted by the NPCSC as representing the death of "one country, two systems". Such an assertion does not stand legal scrutiny. The legal process to be adopted by the NPC and NPCSC is enshrined in law, justified in logic and reasonable in the circumstances of the situation in the Hong Kong SAR. As clearly stated in the draft decision and the explanatory statement of the draft decision, when making the decision, the NPC will comply with the laws, the “one country, two systems” principle and also endeavour to safeguard the lawful rights and interests of people in Hong Kong. Indeed, the very fact that the draft decision on the national security legislation to be submitted to the NPC is in compliance with the Basic Law. The Central authorities and the Hong Kong SAR are conducting our internal affairs of our own state in accordance with our Constitution and the Basic Law, and importantly in full accord with the “one country, two systems” principle. Secretary for Justice Teresa Cheng wrote this article and posted it on her blog on May 26.
26/05/2020
Customs today announced that it uncovered the first drug trafficking case using an aircraft engine to conceal drugs on May 20. It seized about 217kg of suspected cocaine with an estimated value of $246 million from the engine located in a seaborne container at Kwai Chung Customhouse Cargo Examination Compound. The amount of cocaine seized in the case is a record high for seaborne cases since 2012. Through risk assessment and data analysis, customs officers selected the 20-foot container declared to contain an aircraft engine arriving from Ecuador for inspection. The department then conducted an initial check on the engine in the container with the assistance of Government Flying Service Aircraft engineers. Officers found multiple suspicious metal components in the middle of the engine. The drugs were wrapped with soundproof materials and placed in eight metal components. Trafficking in a dangerous drug is a serious offence, which carries a maximum penalty of $5 million and life imprisonment. Members of the public can report suspected drug trafficking activities by calling 2545 6182 or by sending email.
26/05/2020
Police today said they strongly condemn any actions that incite other people to disrupt public order, adding that they will not tolerate any illegal actions that breach social peace. Police made the statement after noticing that some netizens encouraged blocking main carriageways in various districts tomorrow morning by paralysing traffic and obstructing Police in an effort to surround the Legislative Council building. Police said illegal road blockages may jeopardise road safety, affect road users, hinder emergency services and put other people’s lives in danger. They warned that offenders will be arrested and any vehicles that cause serious obstruction will be swiftly towed away. Police reiterated that, according to the Public Order Ordinance, participating in an unauthorised assembly is subject to a maximum penalty of five years’ imprisonment. Commuters are advised to reserve more time tomorrow morning and pay attention to traffic news.
25/05/2020
Judges and judicial officers must refrain from unnecessarily expressing in public, including in their judgments, any views on matters that are controversial in society or may come before the courts for adjudication. Chief Justice Geoffrey Ma made the statement today concerning the Reasons for Sentence delivered by District Judge WK Kwok on April 24.     Mr Ma said judges have a responsibility under the Basic Law to exercise independent judicial power by adjudicating on cases fairly and impartially without fear or favour.     An important aspect of this is that judges and judicial officers must not be biased nor be reasonably perceived to be biased for or against anybody or causes, he added. “For this reason, they must refrain from unnecessarily expressing in public, including in their judgments, any views on matters that are controversial in society or may come before the courts for adjudication. This is particularly so with political views of whatever nature. “Where the resolution of an issue in a court case necessitates the expressing of a view by the court on a matter of political controversy, such view must be measured and go no more than is reasonably necessary to dispose of the issue at hand.”     Noting that non‑adherence to these principles may threaten public confidence in, and its perception of, the independence and impartiality of the Judiciary, Mr Ma said a judge or judicial officer who expresses in public unwarranted or unnecessary political views risks compromising the appearance of impartiality and ability to hear any cases in which one’s political stance may reasonably be regarded as relevant.     The Chief Justice also said that he spoke to and reminded Mr Kwok of the importance of the matters mentioned above in discharging his judicial duties. “The Reasons for Sentence referred to earlier have caused controversy in that there is a risk that some reasonable, fair‑minded and well‑informed persons could reasonably take the view that the aforesaid principles may have been compromised in that a wrong perception was given.  “Judge Kwok agreed with the Chief Justice. For these reasons, the Chief District Judge with the agreement of the Chief Justice has also decided that Judge Kwok should not for the time being deal with any cases involving a similar political context.”
25/05/2020
Secretary for Security John Lee and six disciplinary forces today pledged their full support of the National People’s Congress’ (NPC) deliberation of a draft decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region to safeguard national security. Mr Lee noted that violence has escalated in Hong Kong over the past year, with many cases involving explosives and genuine firearms. He stressed that terrorism is growing in the city and activities which harm national security, such as Hong Kong independence, are becoming more rampant. "I fully support the NPC's draft decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong SAR to safeguard national security which allows Hong Kong to be back on track, ensuring its long-term prosperity and stability," he said. Commissioner of Police Tang Ping-keung expressed his full support for the decision and said he will strive to do his best to maintain national security by leading the force to work with other disciplinary forces under the Security Bureau. Commissioner of Customs & Excise Hermes Tang also welcomed the decision and said he will strive to lead the department to perform its gatekeeping role in preventing the import and export of controlled and prohibited items into and out of Hong Kong, with a view to prohibiting acts that endanger Hong Kong and national security. Commissioner of Correctional Services Woo Ying-ming explained, under the leadership of the bureau, the Correctional Services Department will co-operate with other disciplinary forces, support Police to take resolute enforcement actions and assist the Hong Kong SAR Government in restoring public order, stopping violence, curbing disorder and safeguarding national security. Controller of the Government Flying Service Wu Wai-hung stated that the force is ready to support Police to take resolute enforcement actions and will fully support the Hong Kong SAR Government to implement the decision of the NPC. Director of Fire Services Joseph Leung emphasised that the department, as a member of the Hong Kong SAR disciplinary forces, fully supports the bureau in leading all disciplinary forces to discharge their due duties for safeguarding national security and the safety of Hong Kong. Acting Director of Immigration Au Ka-wang indicated that the department will, by adhering to all applicable laws and current immigration policies, continue to safeguard Hong Kong and prevent acts that endanger national security.
25/05/2020
Customs today arrested an online trader's director in connection with a case of supplying surgical masks in violation of the Trade Descriptions Ordinance. The 20-year-old man has been released on bail and the investigation is ongoing. His case follows an arrest of the trader's authorised representative on May 22. The Customs & Excise Department launched an investigation upon receiving complaints. The trader had failed to provide authentication despite the department’s repeated demands to prove the masks supplied comply with the labelled claims. Customs strongly condemned any false accusation that its law enforcement action against the trader is political repression. The department stressed that its "Guardian" operation, which began in January, aims to ensure that common protective items available for sale in the market comply with relevant ordinances. Immediate public announcements on law-breaking products will be made for the public's interest, it said, adding the operation will go on to ensure decisive action is taken when suspected violations are found.
24/05/2020
Hong Kong has experienced social unrest with frequent violence. There is even advocacy of independence. In view of the increasingly serious situation the Hong Kong Special Administrative Region is facing in relation to national security and the difficulty of the executive and legislative authorities of the Hong Kong SAR to complete on their own legislation for safeguarding national security in the foreseeable future, the National People’s Congress (NPC) has taken steps at the national level to improve the legal system and enforcement mechanisms for the Hong Kong SAR to safeguard national security. The Hong Kong SAR Government has clearly pledged its support to the NPC’s decision. Here I wish to explain the rationale involved in relation to the Constitution and the Basic Law, and the legal instruments that are being used. First, one must understand that the NPC is the highest organ of state power authority of the People’s Republic of China (PRC). Under the Constitution, Article 62 in particular, the NPC has the power to introduce laws and other legal instruments including making decisions. As an example, the Hong Kong SAR was established under the decision of the NPC on the Establishment of the Hong Kong SAR pursuant to Article 31 of the Constitution on 4 April 1990. As a matter of fact, the Basic Law was passed the same day as a national law by the NPC pursuant to Articles 31 and 62(14). The draft decision to be deliberated by the NPC and the Explanatory Statement of the draft decision have been published. The decision is to be made in accordance with Articles 31, 62(2), (14) and (16) and the relevant provisions of the Basic Law. Article 31 of the Constitution provides that “the state may establish special administrative regions when necessary” and “the systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the National People’s Congress”. Article 62(2), (14) and (16) provide that the National People’s Congress exercises the following functions and powers “to supervise the enforcement of the Constitution”, “to decide on the establishment of special administrative regions and the systems to be instituted there” and “to exercise such other functions and powers that the highest organ of state power should exercise”. It is beyond doubt that the NPC has the power to make decisions relating to the Hong Kong SAR and in particular, as in the case here, to ensure that the Constitution is implemented. When making the decision, the NPC will also comply with the laws and as clearly stated in the Explanatory Statement and the draft decision the “one country, two systems” principle is to be upheld and implemented. Based on the Constitution, the NPC can also delegate to its Standing Committee of the National People’s Congress (NPCSC) to make laws and that is exactly what the draft decision paragraph six is referring to. There are doubts as to whether the NPCSC can legislate national security laws for the Hong Kong SAR. Such doubt is totally unwarranted. National security is never part of Hong Kong SAR’s autonomy, and indeed never a matter that concerns only the Hong Kong SAR. National security affects 1.4 billion nationals and it is trite that it has to be and is a matter that is entirely within the purview of the Central authorities. When the threats to territorial integrity, secession and subversion of a nation persist coupled with a lack of laws that address these, it is natural and indeed proper for the Central authorities to take action and propose to the NPC to make a decision and to introduce a national law applicable to the Hong Kong SAR. Such a national law is within the ambit of “defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region” set out in Article 18(3) of the Basic Law. The four areas to be covered in this national law are secession, subversion, terrorist activities endangering national security and interference by foreign political forces. These are core national security matters of any state and that is why the NPC considers it necessary to make such a decision at a national level for a national law to be introduced into Annex III and to be promulgated by the Hong Kong SAR. Paragraph three of the draft decision also explicitly points out that it is the Hong Kong SAR’s constitutional responsibility to safeguard national sovereignty, unity and territorial integrity; stresses that the Hong Kong SAR should as soon as possible complete the national security legislation stipulated in the Basic Law of the Hong Kong SAR. Whilst the Hong Kong SAR is authorised to legislate national security laws, it does not preclude the Central authorities from legislating at a national level for national security. Further as a matter of fact, the Hong Kong SAR simply has not been able to legislate at all for all these years. Upholding national sovereignty is the duty of each and every national. When there is no country, there is no home. These are basic principles that any right minded person will agree. To blindly vilify laws relating to national security is totally irrational. It is high time we grapple and address the need to legislate to protect national security and as the Hong Kong SAR cannot do it, it is not surprising that the NPC takes action at the national level. I hope the above explanation has provided some understanding of the legal basis for the two steps to be taken: the draft decision to be passed by the NPC, and the enactment of a national law by the NPCSC to be introduced to Annex III of the Basic Law to be promulgated by the Hong Kong SAR. Secretary for Justice Teresa Cheng wrote this article and posted it on her blog on May 24. 
24/05/2020
Police have strongly condemned netizens who called for an unauthorised assembly to be held on Hong Kong Island today, saying such an act is irresponsible. It noted that some people intentionally misinterpreted the definition of exempted group gatherings under the Prevention & Control of Disease (Prohibition on Group Gathering) Regulation to incite others to take part in unlawful activities. The force emphasised that according to Schedule 1 of the regulation, a group gathering during a religious activity is exempted only if held at premises constructed or regularly used as a place of worship, but not all religious activities are exempted. It added that officers are deployed to take resolute law enforcement action, including making arrests. Police reminded the public not to participate in any unauthorised assembly or prohibited group gathering.
24/05/2020
The Government today strongly condemned rioters' unlawful assemblies and extremely violent and illegal acts in the vicinity of Causeway Bay and Wan Chai, and Hong Kong independence advocates. In a statement, the Government said rioters have launched activities to breach the public peace for months on end on the pretext of protesting against the Fugitive Offenders Bill legislative exercise since June last year, bringing about tremendous harm to Hong Kong. Although the violent and illegal acts subsided amid the COVID-19 epidemic, the rioters have all along been eyeing opportunities to act. As the epidemic eases, the rioters once again, on the pretext of opposing the legislation on national security, took part in unlawful assemblies and engaged in violent and illegal acts in the vicinity of Causeway Bay and Wan Chai today. They blocked roads with miscellaneous objects, set fires, vandalised shops and public facilities from dismantling railings and trashing traffic lights to prying up drainage covers and bricks as well as assaulting people with different views. While some rioters invaded a flyover to disrupt traffic, some even threw glass bottles from building rooftops and assaulted police officers with a large number of bricks and splashed them with an unknown liquid, injuring at least four officers who had to be sent to hospital.  It pointed out that these violent acts, which abounded in the second half of last year, pose a serious threat to public safety and are outrageous. Police, as a law enforcement agency, are duty-bound to use appropriate force to conduct dispersal and arrest operations. Noting that some people waved Hong Kong independence flags, the Government said they flagrantly disregarded the city's constitutional order and undermined the overall and long-term interests of Hong Kong society. The National People's Congress (NPC) will deliberate the draft decision on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region to safeguard national security. The Government pointed out that the decision’s fundamental objective is to safeguard national security and Hong Kong's prosperity and stability, thereby better protecting the legitimate rights and freedoms of all members of the public in Hong Kong. The violent acts in Causeway Bay and Wan Chai today showed that advocates of Hong Kong independence and rioters remain rampant, reinforcing the need and urgency for the legislation on national security. It added given that the epidemic is not over and while the economic situation has been severe, Hong Kong cannot withstand further blows. The Government noted the rioters’ acts were extremely irresponsible and it supported Police to take resolute enforcement action. It also urged the public to dissociate from the rioters and abide by the law, as well as condemn these violent acts together. Police today also strongly condemned the rioters for injuring others and causing violent disruption, and emphasised that it will spare no effort in the investigation. Up to 9.30pm, the force has arrested at least 180 people, mainly for offences such as participating in an unauthorised assembly, unlawful assembly and disorderly conduct in a public place.
24/05/2020
Hong Kong residents’ rights and freedoms will be unaffected by the National People’s Congress’ deliberation of a decision to establish and improve at the national level the legal system and enforcement mechanisms for the city to safeguard national security. The Government made the statement in response to foreign politicians' comments on the national security law. It said that every country has a right and duty to protect national security and sovereignty and to suggest that the city’s sovereign, China, does not have the right to legislate to protect national security in Hong Kong smacks of double standards and hypocrisy.  The statement pointed out that even the provisions of the International Covenant on Civil & Political Rights stipulate that international covenants on rights and freedoms cannot undermine national security. Much of the criticism and commentary from politicians and pundits are no more than alarmist speculation and innuendo that completely ignore the constitutional reality that Hong Kong is an inalienable part of the Mainland, the Government said. It emphasised that the city cannot and must never become a base for subversive activities or organisations seeking to destabilise the country. The proposed law will only target acts of secession, subversion, terrorist activities as well as activities interfering with Hong Kong's internal affairs by foreign or external forces and that the vast majority of law-abiding Hong Kong residents, including overseas investors, have nothing to fear. The Government noted that in recent days, violent protesters have returned to wreak havoc yet again and such protests have had a massive impact on the city’s economy and social stability and cannot be allowed to continue. It explained the decision by the National People's Congress to enact the national security law will establish and improve the legal framework and enforcement mechanisms for the city to safeguard national security and will make Hong Kong a safe city. The legitimate rights and freedoms enjoyed by Hong Kong residents under the law and independent judicial power, including that of final adjudication, will not be affected. Hong Kong will remain a free, cosmopolitan, open and welcoming city under the rule of law. The city’s high degree of autonomy and the cardinal principle of "Hong Kong people administering Hong Kong" as enshrined in the Basic Law will remain intact, it said, adding that the long-term stability and prosperity of this vibrant international metropolis under the unique and well-tried "one country, two systems" will be further assured.

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