Editor's note: The speech was delivered by Mr.Grenville Cross SC, former director of public prosecutions, at the roundtable discussion forum on the National Security Law by Hong Kong Law Society on July 15, 2020.
I should like to discuss five aspects of the National Security Law (NSL), which concern practical issues which need to be resolved, but about which not much has been said.
Prosecution of offences by the Department of Justice
Although NSL Art.18 requires the Department of Justice (DOJ) to create a specialized prosecution division to “be responsible for the prosecution of offences endangering national security and other related legal work”, this division will still apply the usual criteria to prosecutions, as contained in the department’s “Prosecution Code” of 2013. This means that there must, on the available evidence, be a reasonable prospect of conviction, and it must also be in the public interest to prosecute, such being the criteria applied throughout the common law world.
However, there are areas which need clarification. On its face, NSL cases can only ever be conducted by specialist prosecutors, at the advisory stage, at the trial stage, and at the appeal stage. This means that the department’s appellate specialists, who handle the most important cases which go to the Court of Final Appeal, will be excluded from dealing with NSL cases, unless, of course, they are seconded to the NSL division. It will also mean that lawyers from the private sector, who conduct many cases on behalf of the DOJ, will not be eligible to prosecute cases of this sort. This will mean, therefore, that the new division will need to have a strong advisory capacity, as well as a strong advocacy capacity, although the use of part-time members may offer a way forward, particularly if the number of NSL cases is not great. However, any such part-timers will need to come from within the DOJ, and not from the private sector, unless specially recruited.
Another important issue concerns the joinder of offences. It is a basic procedural imperative that, when various offences arise out of the same incident, they should all be consolidated and tried together, not least because this avoids a duplication of proceedings with witnesses having to testify twice about the same matters. One can, however, readily imagine cases where there are multiple charges available against a suspect, but only one involves national security. For example, somebody who has allegedly engaged in secessionist activity may also be charged with wounding a police officer with intent and unlawful possession of a firearm. This is problematic, as the secessionist charge is subject to NSL procedures, whereas the other two are not, and consolidation may not be possible. The question therefore arises as to which charges take precedence.
One possible answer is to have two separate trials, however undesirable that may be, with the most serious charge being tried first. In this scenario, a final decision on proceeding with a second trial on the other charges could be deferred until the result of the first trial is known.
Trial of offences (Art.41(3))
NSL Article 41(3) provides that: “Cases concerning offence endangering national security within the jurisdiction of the HKSAR shall be tried on indictment”, and the significance of this requires recognition.
As to what is meant by the term “on indictment”, the Criminal Procedure Ordinance (Cap.221), Section14A(2), states it means “the offence shall be triable only upon indictment”. Although there are exceptions, as where an offence may be triable either summarily or upon indictment, these do not apply to Article 41(3). What this apparently means, therefore, is that NSL offences, even if in the lower category of seriousness, will have to be tried in the Court of First Instance of the High Court.
Although the Magistrates Ordinance (Cap.227), Section 92, enables the Magistrates Court to deal with indictable offences, this only arises in situation where the Secretary for Justice can elect to have an indictable offence tried summarily. However, NSL Article 41(3) does not confer any power on the Secretary for Justice to elect to try an indictable offence in the Magistrates Court. Section 92, moreover, states that, where an indictable offence is triable summarily, the maximum sentence is 2 years’ imprisonment and a fine of $100,000, unless any law states otherwise, and Article 41(3) makes no reference whatsoever to the sentencing of defendants for NSL offences which have been tried summarily, and which, in any event, carry minimum sentences of not less 3 years’ imprisonment (outside the customary jurisdiction of the Magistrates Court).
Equally, although the District Court Ordinance (Cap.336), Section 75, enables the District Court to try indictable offences transferred to it by the Magistrates Court, where this is expressly provided for, the trial which results remains a summary trial, as it is in the Magistrates Court, and is not a trial “on indictment”.
Although it is certainly true that NSL Article 45 enables the lower courts, including the Magistrates Court, to “handle” proceedings related to NSL cases, this, in context, in light of Article 41(3), can only mean processing the initial arrest cases, attending to preliminary matters such as bail, and conducting committals to the higher courts. In any event, the opening words of Article 45 make clear that the references to other courts “handling” NSL cases is to be read subject to what is “otherwise provided by this Law”, which can only be a reference to Article 41(3)’s stipulation that all NSL cases are to be tried “on indictment”.
If it was not, in fact, the intention of the drafters that all NSL cases be tried “on indictment” in the Court of First Instance, this should be clarified, whether by interpretation or otherwise.
Trial of offences by 3-Judge panel (Art.46(1))
Although, particularly in straightforward cases, it will be possible for a jury to try a NSL case in the ordinary way, NSL Article 46(1) entitles the Secretary for Justice to issue a certificate directing that the case shall be tried by a panel of three judges instead of by jury “on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and protection of personal safety of jurors and their family members”. The inclusion of the term “among others” suggests that the examples given are not exhaustive, although it is not immediately clear what other situations might justify a 3-judge trial.
However, where there is a 3-judge trial, there is no indication of what the procedures at trial will be. Will the three judges need to be unanimous, or will a verdict of 2-1 suffice? Will they have to provide reasons for verdict, in the same way as is done a District Court judge? If one judge dissents from the verdict of the other two, should he or she issue reasons, as happens in the Court of Appeal?
If it be right, as appears to be the case, that all NSL cases have to be tried in the Court of First Instance, these issues will require resolution in the very near future. Unless there is to be expedited legislation governing the procedures to be followed, one viable solution may be for a practice direction to be issued by the Chief Justice as to the practice and procedure to be followed by the Court (Order 1, rule 4, Rules of the High Court, Cap.4A).
As to the inherent jurisdiction to regulate criminal procedure by means of practice directions, Lord Devlin, in Connelly v DPP  2 AC 1245, 1347 (HL), recognized there is a jurisdiction vested in the higher judiciary to “make and enforce rules of practice in order to ensure that the Court’s process is used fairly and conveniently”, adding that “the general power to prevent unfairness to an accused has always been a part of the English criminal law”. Moreover, as was acknowledged by the High Court of Australia (The King v Commonwealth Court of Conciliation and Arbitration (1950) 81 CLR 27, quoting Jordan CJ in Browne v Commissioner for Railways, (1935) 36 SR (NSW), at p.29; 52 WN, at p.103): “If jurisdiction is conferred upon a court, it may and should exercise that jurisdiction; and if no procedural machinery has been provided, it is for the Court to provide such machinery as best it can” (per Fullagar J, at para.7).
A practice direction is, I suggest, therefore a possible way forward.
Bail to suspects (Art.42(2))
NSL Article 42(2) provides: “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”.
In other words, the accused person will need to satisfy the judge that he will not commit any such acts if granted bail. If he does that, does it mean he will then necessarily be granted bail? I believe not, and logic suggests that this is an extra hurdle for a bail applicant to overcome, and it does not replace the existing bail criteria. As the Criminal Procedure Ordinance (Cap.221) Section 9G indicates, there are three bases for denying someone bail, namely, that there are substantial grounds for believing that the accused person will (a) abscond, (b) commit another offence while on bail, or (c) interfere with a witness or pervert or obstruct the course of justice.
Although Article 42(2) obviously makes it harder to obtain bail in circumstances where the accused person might go out and commit acts endangering national security, it cannot have been the intention of the NSL drafters that, if there is no such risk, he or she should be entitled to bail even if there is a real risk of committing another type of offence, or absconding, or interfering with a witness.
My conclusion, therefore, is that the new bail restriction in Article 42(2) supplements, but does not replace, the existing bail criteria.
Sentencing of offenders (Art.33)
Apart from the introduction of tiered sentencing ranges and mandatory minimum sentences, which are not uncommon in other common law jurisdictions, NSL Article 33 provides that a lighter sentence may be imposed, or the penalty may be reduced, or, in the case of minor offences, exempted, if the defendant has (i) during the commission of the offence, voluntarily discontinued involvement or effectively forestalled its consequences, or (ii) voluntarily surrendered and given a truthful account of the offence; or (iii) reported an offence committed by others, or provided information which assists in solving another criminal case.
Although these are already factors which may be taken into account in mitigation of sentence, they go some way to softening the impact of the new sentencing regime. The reference, however, in minor cases, to a sentence being “exempted” is novel, and, on its face, appears to conflict with the principle that a conviction comprises of two parts, namely, a finding of guilt and also a sentence (HKSAR v Ho Tung Man  3 HKC 375). However, to make sense of this, it should, I suggest, be equated with an order of absolute discharge, which can already be imposed in circumstances where a court considers that no actual penalty is necessary (R v Fung Chi Wood  1 HKLR 654).
However, the bigger issue is whether these three mitigating factors are in lieu of, or in addition to, the mitigating factors which already exist. If, for example, the defendant has previously led a blameless life, or acted under duress, or has a mental disorder, are these factors to be disregarded henceforth? That appears to be the intention, with national security cases being treated differently from others at the sentencing stage, and lesser sentences only being imposed in the particular circumstances identified.
Again, this issue may arise very soon, and will also require clarification, whether by interpretation or otherwise.