In a paper submitted to the Legislative Council, the bureau and department emphasised the necessity of codifying this mechanism through subsidiary legislation to ensure consistent and effective implementation of provisions relating to national security offences under both statutes.
The move, they said, aims to strengthen legal clarity, enhance procedural efficiency, and enable timely prevention and response to national security risks.
“Amid the present complicated geopolitical landscape, national security risks still exist. Stating clearly the above mechanism by way of subsidiary legislation can improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security,” the security bureau and the department of justice said in paper submitted to Legco.
Under Article 47 of the HKNSL and Section 115 of the SNSO, the Chief Executive holds the authority to issue binding certificates determining whether a particular act or matter involves national security — a power that courts are legally bound to accept.
The government noted this certification mechanism is uniquely suited to classify “other offences endangering national security” under Section 7(d) of the SNSO, as such classification hinges on whether the criminal act in question implicates national security.
The proposed subsidiary legislation, to be enacted under Section 110 of the SNSO, will set out two key principles.
If the Chief Executive issues a certificate under Article 47 of the HKNSL or Section 115 of the SNSO confirming that a criminal act involves national security, the case shall be treated as one concerning an offence endangering national security under Article 41 of the HKNSL.
Any offence investigated, arrested, or charged in relation to that act shall be deemed an offence endangering national security under Section 7(d) of the SNSO.
And, where a person is charged with — or convicted of — an alternative offence arising from the same act in a case involving a national security offence, that alternative offence shall also be classified as an offence endangering national security.
“The HKSAR should complete the legislative process of the relevant subsidiary legislation as soon as possible, the earlier the better, in order to safeguard national security effectively,” the paper added.
