Although the Hong Kong National Security Law (NSL) and the Safeguarding National Security Ordinance have been successfully integrated into the legal landscape of the Hong Kong Special Administrative Region, there can be no resting on laurels. National security is a work in progress, which is why the NSL imposes an obligation upon the HKSAR to advance “the legal system and enforcement mechanisms of the Region for safeguarding national security” (NSL Art 14).
One way of achieving this is through the NSL’s implementation rules. They enable the chief executive, in conjunction with the Committee for Safeguarding National Security of the HKSAR, to, for example, issue rules governing searches, including the search of “electronic devices that may contain evidence of an offense”. (NSL Art 43)
On Monday, the Amendment Rules were gazetted, taking immediate effect. They are the first major change to the implementation rules since the NSL’s enactment in 2020. Whereas the new rules address issues as varied as freezing property, enhancing law enforcement powers, penalties for noncompliance with court orders to surrender travel documents, unauthorized departures from Hong Kong by national security suspects, and breaches of conditions attached to returned documents, much of the focus has been on the amendment involving electronic devices.
It is now an offense punishable by up to one year’s imprisonment and a fine of HK$100,000 ($12,774) for a person to refuse to comply with a request to provide passwords for smartphones or other electronic devices during a national security investigation. The authorities explained that this amendment was necessary to strengthen law enforcement, improve crime prevention and facilitate investigations — all within the context of handling national security risks more effectively and expeditiously.
Although disclosing the requested information may incriminate an individual, it does not excuse noncompliance. This is unsurprising, as it may sometimes be necessary in national security investigations for the police to acquire information urgently. For example, terrorist activity might be imminent, and the police need to immediately ascertain the situation to protect the public at large.
The country is safer as a result, and this will only be regretted by those who wish the “one country, two systems” policy ill
However, the police do not enjoy carte blanche, and there are restrictions. The amendment only empowers police officers with a judicial warrant and officers holding the rank of at least assistant commissioner to require a person under investigation to provide a password or decryption method for electronic equipment, or to request “any reasonable information or assistance”. In other words, the power cannot be exercised by anybody who happens to have a uniform, which is reassuring.
Moreover, anyone who knows the password or decryption method, or is authorized to access the device, or possesses, or controls the equipment, must also disclose the information, upon pain of a year’s imprisonment and a fine of HK$100,000. If anyone provides false or misleading information, they will be subject to a maximum sentence of three years’ imprisonment and a fine of HK$500,000.
Although Hong Kong is under a constitutional obligation to safeguard national security, this does not come at the expense of “protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region” (NSL Art 1). This is why the authorities were at pains to emphasize that in formulating the Amendment Rules, they had full regard not only to the NSL guarantees in relation to the protection of human rights (NSL Art 4) but also to the battery of rights enshrined in the Basic Law. As always, they have sought to strike a balance between safeguarding national security and upholding individual rights, and it appears they have got it about right.
Powers of this sort are not unfamiliar in Hong Kong, and they also have their counterparts elsewhere. Whereas the Securities and Futures Commission can already require individuals to divulge passwords for seized electronic devices and email accounts, other common law jurisdictions have similar provisions (including Singapore). The authorities explained that the Amendment Rules would not “affect the lives of the general public and the normal operation of institutions and organizations”, and there was no possibility of law-abiding people contravening the law “inadvertently”.
As the BBC correctly reported (March 23), “law enforcement officials in many parts of the world have the authority to demand access to electronic devices as part of criminal investigations”. However, it could not resist branding the NSL “a sweeping range of vaguely defined offences”, which was propaganda pure and simple. Its oft-repeated slur was unsupported by the experiences of everyone who practices law in the criminal courts and unbecoming of a supposedly reputable broadcaster.
In the United Kingdom, the Regulation of Investigatory Powers Act 2000 enables authorities to serve a notice on an individual requiring access to their phone password. Anybody who refuses to comply in national security cases faces up to five years’ imprisonment (and two years’ imprisonment in other cases), far harsher than Hong Kong’s maximum sentence. However, this tells only half the story.
Under the Terrorism Act 2000 (Schedule 7), the UK authorities can stop, search and detain individuals and demand the disclosure of the passwords to their telephones, laptops or other electronic devices. Passwords can even be demanded when there is no actual suspicion that an individual is involved in terrorism. Individuals can be detained for up to nine hours for questioning and the examination of their devices, and it is unfortunate that draconian powers of this sort are sometimes abused by the unscrupulous.
When, for example, the leader of the Workers Party of Britain and former parliamentarian George Galloway, and his wife, Putri Gayatri, the party’s deputy chairman, arrived at London’s Gatwick airport from Moscow last September, they were detained for nine hours by the counterterrorism police. Galloway was questioned about his views on China and Russia, which was beyond the pale, and his telephone (and Gayatri’s) and laptop were confiscated. He said no attempt was made to justify his detention, which prevented him from attending an event attended by the Chinese ambassador. He and Gayatri were held so the officers could “gain access to our communications”, a shocking reflection on the state of individual rights in modern Britain. Although any such conduct by the police in Hong Kong would be unthinkable, it is apparently acceptable in the UK these days, which is beyond sad.
Once the authorities identified shortcomings in the HKSAR’s national security apparatus, their duty was clear. They have resolved the outstanding issues in a rational way that respects individual rights and is aligned with developments elsewhere. The country is safer as a result, and this will only be regretted by those who wish the “one country, two systems” policy ill.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
