21 August 2020
One aspect of Hong Kong's National Security Law (NSL) which has attracted extensive commentary is its broad jurisdictional reach. In this fourth briefing in our series examining the NSL and its impact on businesses, we look in closer detail at the law's jurisdictional scope and applicability |
Scope of application |
The NSL applies to offences committed in the Hong Kong SAR by any person. An offence is deemed to have been committed in the SAR if an act constituting the offence is carried out in Hong Kong (including on board a vessel or aircraft registered in Hong Kong) or if the consequence of the offence occurs in Hong Kong. In addition to Hong Kong permanent residents and incorporated or unincorporated entities established in Hong Kong, the NSL asserts jurisdiction over any natural person or entity who commits an offence against Hong Kong from outside the SAR.. The NSL is, of course, not unique in its territorial reach. The Criminal Law of the PRC, for example, applies to PRC nationals overseas, as well as foreign nationals outside PRC territory who commit offences against the PRC or its citizens. In practice, this provision is rarely exercised. Criminal statutes such as the US Foreign Corrupt Practices Act and UK Bribery Act apply to their respective citizens regardless of where they are located, as well as to foreign nationals acting in furtherance of criminal misconduct within the US and UK, respectively. To understand how the extra-territorial reach of the NSL might be applied in practice, it is necessary to consider the scope of application as set out in Articles 36-39 in the context of the specific offences created by the NSL (see the first briefing in our NSL series for a detailed summary of the four categories of offence). Offences under the first three categories of secession, subversion and terrorist activities relate by their very nature, to acts committed in or with a direct impact in Hong Kong, thereby satisfying the location requirement under Article 36. Offences in the fourth category of collusion with a foreign country or external elements appear to create a broader scope for extra-territorial application in respect of acts committed outside of Hong Kong. It would appear, by way of example, that participation by a foreign national or overseas company in advocacy or lobbying perceived to be against Hong Kong's national security interests could constitute an offence under the NSL. From a practical perspective, the additional police investigatory powers created by the NSL (covered in detail in our last briefing) would not be available in the investigation of matters outside Hong Kong. We would not generally expect mutual legal assistance measures to be tested in respect of NSL-related prosecution and note that, since the promulgation of the NSL on 30 June 2020, a number of countries have suspended their extradition treaties or have announced that they are reviewing their existing extradition arrangements. |
In most cases, Hong Kong jurisdiction will apply to offences under the NSL, with the Hong Kong Police Force responsible for investigating the case, the special prosecutorial division of the Department of Justice for prosecuting the case and the Hong Kong courts for trying the case. In cases where Hong Kong jurisdiction is exercised, Hong Kong law will apply to procedural matters. Trials are conducted in open court, except in circumstances where the case involves state secrets or for public order reasons, in which case the trial would be closed to the public and media. Notably, the NSL requires that the Secretary for Justice provide written consent before prosecution of an offence under the NSL can be initiated. As noted in our previous briefing, in particularly complex or serious cases, PRC jurisdiction can be exercised directly over cases via the newly established Office for Safeguarding National Security. Cases subject to PRC jurisdiction under Article 55 are to be investigated, prosecuted and tried under the PRC Criminal Procedure Law. The NSL specifies that, in such circumstances, a criminal suspect may retain a lawyer to represent him or her and “shall be entitled to a fair trial before a judicial body without undue delay.” Among other considerations related to this scenario, we would highlight that suspects subject to prosecution and trial under PRC jurisdiction should not rely on legal privilege, as the concept is not recognised under PRC law. |
We will issue the fifth and final briefing in our NSL series next week. As always, please reach out to any of the contact listed below or your usual Herbert Smith Freehills contact if you would like to discuss any of the issues covered in these briefings. |
For further information, please contact:
Jojo Fan Herbert Smith Freehills
jojo.fan@hsf.com