China-made national security law applied in Hong Kong’s common law courts: choice of interpretative approaches

Abstract

ABSTRACT The Chinese legislature enacted the Law on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) on 30 June 2020 to be applied in Hong Kong. This article compares the texts between the NSL and relevant Chinese Mainland law and identifies four ways in which the Chinese legislative provisions and legal elements have been incorporated into the NSL. The widespread presence of Chinese legal elements in the NSL suggests that completely disregarding Chinese laws in Hong Kong judicial proceedings may not be feasible and advisable in some cases for interpreting and applying this specific made-in-China law. This article contends that the courts should distinguish the admissibility and weight of Chinese laws in the NSL cases. The Chinese laws are essential materials for Hong Kong courts to construct the NSL, and broader admissibility of Chinese laws is appropriate for the NSL construction. At the same time, this article argues that the weight to be given to Chinese laws is a matter for the court to decide in the circumstances of the case, and the set of rules regarding the NSL construction Hong Kong courts have been developing could guide the weighing of different kinds of interpretative materials.