Pearls and Irritations

When Hong Kong’s policy makers were formulating the offence of foreign interference endangering national security, they did not operate in a vacuum. International models were examined, and they heavily influenced the final product. They included the National Security Legislation Amendment (Espionage and Amendment) Act 2018 of Australia, now incorporated into the country’s Criminal Code Act 1995. Its effect was to proscribe foreign interference in Australia’s affairs, and it did so comprehensively.

Editor’s note: The following are remarks of Grenville Cross SC at the 2nd Legal Forum on Interconnectivity and Development held on Nov 5 as part of Hong Kong Legal Week 2024.

I am most grateful to the Secretary for Justice for inviting me to participate in Hong Kong Legal Week 2024. As this is the second legal forum on interconnectivity and development, it builds upon the foundations laid last year, when there was a heavy focus on the role of the rule of law in guiding the development of the Hong Kong Special Administrative Region (the Region). Today’s forum is multi-dimensional, and the way in which Hong Kong’s national security arrangements protect its way of life from the menace of hostile foreign interference deserves consideration, but it also requires a context.

On January 10, 2021, China unveiled its first five-year plan for the construction of the rule of law. It was issued by the Communist Party of China (CPC) Central Committee, and it provides that the rule of law is a hallmark of the progress of human civilisation, as well as the basic way of governance. Its objective was to overhaul the legal system and shape a distinctively Chinese socialist rule of law by 2025, with a view to its full completion by 2035.

The five-year plan is also significant for Hong Kong, which was required to adhere to the rule of law and uphold both the Constitution and the Basic Law (which enshrines Hong Kong’s common law system, as well as the legal rights and protections of residents). Also highlighted was the need to maintain the long-term prosperity and stability of Hong Kong, an integral part of which is to prevent and oppose the interference of external forces in Hong Kong.

Shortly thereafter, on March 11, 2021, the National People’s Congress adopted the 14th Five-Year Plan for National, Economic and Social Development, and Hong Kong was again highlighted. It was required to safeguard national sovereignty, security and the nation’s development interests, as well as its own social stability. Once again, the Region was enjoined to resolutely prevent and curb interference by external forces in its affairs, and the message hit home. Hong Kong has now discharged in their entirety its national security obligations to the rest of the country, including the criminalisation of external interference endangering national security.

It is recognised everywhere that when the national security of a country is endangered by foreign entities, remedial measures are legitimate. During the insurrection of 2019-20, and in the years immediately preceding it, Hong Kong’s stability was threatened by hostile forces operating domestically in conjunction with foreign entities, and this endangered the survival of the “one country, two systems” paradigm. External interference by improper means, whether or not at the behest of local residents, is contrary to normal global practice, but let me be clear.

When we talk about the criminalisation of the act of bringing about an interference effect in Hong Kong, it must also be of a deleterious nature. We are not talking about genuine criticisms of government policies with a view to improving them, legitimate lobbying work, general policy research, normal exchanges with overseas organisations or daily commercial activities. These types of activity have always been acceptable in an international city like Hong Kong, and they remain so. However, what is objectionable is conduct that contravenes the principle of noninterference under international law, undermines national sovereignty and political independence, and poses a risk to national security.

This explains why the five-year plans that China unveiled in 2021 highlighted the need to counter the dangers that external forces can cause. The consequences of doing nothing and hoping for the best could have been dire, as was seen during the insurrection in 2019. This is why effective national security laws need to contain an extraterritorial dimension, which is of great utility. They help to disabuse bad actors of the idea that they enjoy impunity when they use their foreign bases to try to harm another country and its people.

When, therefore, the Region enacted the Safeguarding National Security Ordinance (SNSO) on March 23, 2024, the importance of deterring foreign threats was recognised. It prohibits, through the use of improper means, collaboration with external forces to influence, for example, the formulation of policies or measures by the Central People’s Government or the Region’s government, the discharge of powers and duties by the Legislative Council and the Judiciary, or interference in local elections and related processes. Moreover, the offense of foreign interference endangering national security has been provided with extraterritorial effect, meaning the crime cannot be committed with impunity elsewhere by a local individual or entity.

When the policy makers were formulating the offence of foreign interference endangering national security, they did not operate in a vacuum. International models were examined, and they heavily influenced the final product. They included the National Security Legislation Amendment (Espionage and Amendment) Act 2018 of Australia, now incorporated into the country’s Criminal Code Act 1995. Its effect was to proscribe foreign interference in Australia’s affairs, and it did so comprehensively.

It criminalised covert, deceptive and threatening activities by persons intending to interfere with Australia’s governance and political systems, or support the intelligence services of a foreign government. It also proscribed acts preparatory to foreign interference, and the law enforcement agencies were empowered to arrest suspects before the country’s national security is prejudiced, and the intended offence is still at the planning stage. The maximum penalty on conviction of intentional foreign interference is 20 years’ imprisonment, which is far tougher than the maximum sentence for the parallel offence in Hong Kong, which is 14 years’ imprisonment.

However, it was the UK’s foreign interference law which had the biggest impact on the SNSO’s offence of external interference endangering national security. The UK’s National Security Act 2023 provides that if the offence is committed in a place outside the UK, the person responsible is prosecutable, and this is mirrored in the SNSO. Although the terminology in the two instruments is not always identical, the objectives overlap. Although, for example, the UK’s foreign interference law criminalises acts of “prohibited conduct” and Hong Kong’s law criminalises acts which have an “interference effect”, they are basically the same thing, and both laws require a person to intend the impugned conduct to have an interference effect. Even the maximum sentence of 14 years’ imprisonment for both offences is identical.

However, one notable difference is that whereas Hong Kong’s external interference law requires a criminal intent, the UK’s foreign interference law applies both a criminal intent and a lower test, and a person is prosecutable if he is simply “reckless” as to whether there will be an interference effect, making it easier to prosecute a suspect.

In Canada, the risk of external interference has also been recognised, and the law enforcement authorities have been strengthened accordingly. In June 2024, it modernised its toolkit, and “An Act respecting countering foreign interference” received the Royal assent. It bolstered Canada’s ability to detect, disrupt and counter foreign interference threats by modernising existing laws. Whereas the Security of Information Act 1985 already criminalised information-related activities that were harmful to Canada, including spying, economic espionage and foreign influenced threats or violence, it has now acquired new foreign interference offences, which cover deceptive or surreptitious acts that undermine democratic processes, including foreign interference in governmental functions and political processes. Also criminalised are deceptive or surreptitious acts that harm Canadian interests, such as facilitating the entry of foreign agents posing as tourists, and serious offences which benefit a foreign entity, or are directed by such.

These reforms have been supplemented with extra powers for the Canadian Security Intelligence Service. They include an enhanced capacity to collect and use datasets, new warrants to facilitate specific investigative techniques, and enabling the Canadian Security Intelligence Service to collect within Canada intelligence concerning the intentions and capabilities of foreign states and individuals in the country.

Canada also intends to establish a Foreign Influence Transparency Registry, which will impose a registration obligation on particular individuals and entities with foreign connections. This will become operational on a date to be decided by the Governor-in-Council. Once it takes effect, those who enter into an arrangement with a foreign principal will need to register their arrangements and disclose any foreign influence activities undertaken if they are in relation to governmental or political processes in Canada, something that goes way beyond anything that exists in Hong Kong.

Although the United States has yet to enact foreign interference laws as elaborate as those of its Canadian neighbour, it would be wrong to assume it does not have ample tools available to counter what it perceives to be foreign interference in its affairs. Indeed, it was somewhat of a trailblazer, and its Foreign Agents Registration Act 1938 (FARA) is a very early example of a public disclosure law directed at agents of foreign principals who are engaged in political activities or other specified conduct. Such people are required to publicly disclose their relationships with the foreign principals, as well as the activities, receipts and disbursements in support thereof.

Moreover, the US Congress is currently considering the Preventing Foreign Interference in American Elections Act, which seeks to beef up the controls originally adopted in 1971. If enacted, it would not only bar foreign nationals from directly or indirectly contributing to candidates and political groups, but also to groups that collect ballots, register voters, identify voters or conduct efforts to mobilise electors. The proposed law seeks to ensure that malign foreign actors cannot directly or indirectly influence US politics and elections, and it echoes those adopted elsewhere.

Although not directly on point, it is worth mentioning that the US has deployed its extraterritorial jurisdiction to pursue foreigners whose activities elsewhere may have endangered its national interests, which it also sees as a useful deterrence tool. It has achieved this by perfecting the protective principle, which enables a country to assume jurisdiction over acts committed elsewhere by individuals of whatever nationality that are considered to endanger its national interests.

In the US, the protective principle has been used against individuals outside its boundaries who have threatened its vital interests, including its security and governmental functions. Its scope is wide, and it has been directed at crimes against the security of the state, such as espionage, or against its money or credit, such as counterfeiting. The US judiciary has said that the protective principle enables a country to “adopt laws that make it a crime to engage in an act that obstructs the function of government or threatens its security as a state without regard to where or by whom the act is committed” (vide US v Zehe, D. Mass, 1985).

Although the protective principle has been incorporated into the Australian foreign interference law, and has been invoked in Canada for the offences of espionage and treason, the US has not felt it necessary to do likewise, at least not yet.

Before concluding, let me say a little about Singapore. It is not only Hong Kong’s regional neighbour, but it also shares a common law legal system, inherited from the British colonial era. Like Hong Kong, it has recently introduced legislation to protect itself from external threats. In 2021, the Foreign Interference (Countermeasures) Act (FICA) was enacted, and its purpose is to “protect the public interest by counteracting acts of foreign interference.” The FICA strengthened the country’s ability to prevent, detect, and disrupt foreign interference in its domestic politics, whether conducted through (a) hostile information campaigns, or (b) politically significant persons, who could be local proxies.

The FICA provides the Minister of Home Affairs with the authority to investigate individuals suspected of being foreign agents. There is also a new offence of “clandestine foreign interference by electronic communications activity,” and the authorities can compel social media platforms and website operators to hand over user data. Whereas acts of general interference are punishable with penalties of up to 7 years’ imprisonment, this rises to 14 years for acts of interference against a targeted person (the same maximum as in Hong Kong).

Once external interference laws elsewhere are compared, it becomes apparent that Hong Kong’s model is closely aligned to many of them, albeit not always as robust. As we saw in 2019, there are people who will stop at nothing to harm the Region, but it is now able to defend itself from hostile interference in its affairs. This is a game-changer, and it has been achieved in a way that reflects developments elsewhere. In consequence, Hong Kong is safer, its prospects are better, and its future is assured.

Republished from CHINA DAILY, Hong Kong, November 05, 2024

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