At the opening of the new legal year in 2022, the Secretary for Justice, Ms Cheng Yuk-wah, mentioned that the courts have dealt with many legal proceedings involving the national security law in the past year, and courts at different levels have also reviewed the relevant laws. Suppressing acts that endanger national security involves related procedures, such as bail conditions, which require stricter terms.
For the Hong Kong SAR as a whole, the primary task is to fulfill its constitutional responsibilities, safeguard national security, and conduct local legislation on Article 23 of the Basic Law.
In his speech, the Secretary for Justice mentioned that the court handled several judicial proceedings involving the National Security Law last year, including Jimmy Lai’s bail application, waiter Tang Yingjie riding a motorcycle with a light-time flag into a police officer, and speech therapy. Members of the teachers' union have argued in court over the provisions of the National Security Law for publishing seditious publications.
When making the relevant ruling, the court emphasized that the provisions of the National Security Law clearly stated that in order to protect national security and prevent and suppress acts endangering national security, strict bail conditions should be adopted, and the criminal element of the crime of terrorist activities, and why the The slogan "Hong Kong. Revolution of our times" can be interpreted to mean splitting the country.
Cheng also quoted the judgment of the Court of Appeal as saying that the Basic Law was drafted with the future in mind. Under the principle of "one country, two systems", maintaining Hong Kong's system does not mean stagnation, but within the framework of the Basic Law. Continue to develop to suit the needs and circumstances of society at the time, and some may even exceed the drafters' thinking.
She pointed out that in order to tie in with the legal exhibition in this area, the Department of Justice will strengthen education on the rule of law and strengthen cooperation with the Mainland and the international community.
Looking ahead, the overall priority of the HKSAR is to fulfill its constitutional responsibilities, safeguard national security, and conduct local legislation on Article 23 of the Basic Law.
The Department of Justice will continue to make every effort to provide independent professional legal advice and support the Security Bureau in formulating relevant legislative procedures.
Cheng believes that the basic premise of "one country" has been consolidated and national security is guaranteed. She is convinced that the common law will continue to apply in Hong Kong after 2047.
The Department of Justice will continue to promote a correct understanding of the rule of law and constitutional order in the community, safeguard the independence of the judiciary, and professionally play the role of legal adviser to the government.
Representatives from the legal profession attended the opening of the Legal Year at the Court of Final Appeal.
(See the picture below for details)
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(full text)
The following is the full text (Chinese translation) of the speech delivered by the Secretary for Justice, Ms Teresa Cheng, SC, at the opening ceremony of the 2022 legal year today (January 24):
The Chief Justice of the Court of Final Appeal, Members of the Judiciary, Chairman of the Bar Association, President of the Law Society, Distinguished Guests, Ladies and Gentlemen:
The rule of law and the common law have always been the cornerstones of Hong Kong as an international financial centre and a hub for international legal, transactional and dispute resolution services, safeguarding our capitalist system and way of life.
These attributes are guaranteed by the Basic Law, which codifies the innovative Chinese constitutional policy of "one country, two systems" into written law.
As stated in the preamble of the Basic Law, its original intention is to safeguard national unity and territorial integrity, and to maintain Hong Kong's prosperity and stability.
If we can uphold, practice and respect the basic premise of "one country", there is no reason why two systems based on common law should not continue.
First, Article 5 (Note 1) of the Basic Law guarantees that Hong Kong will maintain its capitalist system and way of life unchanged for 50 years.
That doesn't mean it will stop in fifty years.
Secondly, according to common sense, if "one country, two systems" works and is beneficial to the country and Hong Kong, there is no reason to change.
Third, it can be seen from the discussions surrounding the formulation and implementation of "One Country, Two Systems" and Mr. Deng Xiaoping's statement that 50 years is only "an image of the way", and "the first 50 years cannot be changed, and after 50 years there is no need to change. (Note 2).
An important point is that President Xi Jinping and leaders of the Central People's Government have repeatedly expressed their unequivocal support for and resolute implementation of "One Country, Two Systems".
Therefore, we have the responsibility to uphold the foundation of "one country", let "two systems" continue to flourish, and on this basis, let the common law continue to apply.
judicial independence
One of the most valuable aspects of common law is reasoned judgments.
The judgment is premised on following precedents, reflecting judicial transparency, and is a clear proof of judicial independence (Note 3).
The courts have a constitutional duty to act in an impartial and independent manner without any interference in the performance of their judicial functions.
Although there have been attempts to intimidate judicial officers and their families with despicable methods in order to undermine the core values of the rule of law in Hong Kong, the determination of the courts to carry out these functions has never wavered.
Judges' impartial scrutiny of the relevant law and evidence when they hear a case is reflected in reasoned judgments and is a testament to their public commitment to judicial independence, both in and out of court.
25th anniversary of the establishment of the Hong Kong Special Administrative Region
2022 marks the 25th anniversary of the establishment of the Hong Kong Special Administrative Region.
Hong Kong's constitutional order is built on the foundation of "one country", a foundation that has been consolidated over the past two years.
In 2021, there have been cases that reaffirmed Hong Kong's constitutional order, safeguarded national security, and followed the human rights protections stipulated in the Basic Law.
national security law
When implementing the National Security Law ("Hong Kong National Security Law"), relevant cases have clearly defined how to apply the "Hong Kong National Security Law".
In the case of Jimmy Lai (Note 4), the court has considered the second paragraph of Article 42 (Note 5).
After examining the background, context and purpose of the Hong Kong National Security Law, the Court of Final Appeal pointed out that the provision is intended to operate in conjunction with constitutionally guaranteed rights and freedoms and other applicable statutory practices, and is part of a coherent whole.
The court further stated:
“The main purpose of the National Security Law for Hong Kong is clear and clear, which is to protect national security first and foremost, and to prevent and suppress acts endangering national security. This explains why there are some changes, including [Article 42, paragraph 1 of the National Security Law of Hong Kong]. Section 2] to adopt stricter bail conditions for crimes endangering national security.” (Note 6)
Another important Hong Kong National Security Law case in 2021 is the Tang Yingjie (Note 7) case.
The Court of First Instance, composed of three judges (Note 8), analyzed the elements of the crime of "inciting secession" and "crime of terrorist activities" in Article 21 of the National Security Law of Hong Kong and held that "the liberation of Hong Kong" The slogan "Revolution of the Times" could imply secession under relevant circumstances, and the defendant was convicted accordingly.
The Appeal Committee in Wu Qiaoyi's case (Note 9) considered the scope of the "crimes endangering national security" referred to in various provisions of the Hong Kong National Security Law and ruled that the phrase should be interpreted as referring indiscriminately to all Hong Kong National Security Law " and offences of that nature under the existing laws of Hong Kong.
The court further clarified that the offence of publishing seditious publications under Section 10 of the Crimes Ordinance can be classified as an offence against national security.
Basic Law
The wisdom of the Basic Law lies in its ability to keep pace with the times while preserving the basic principles that must be observed.
In upholding the constitutionality of the Co-location Ordinance (Note 10), the Court of Appeal affirmed the important principle that the Basic Law is a flexible instrument that can meet changing needs and circumstances, and stated that:
"Thus, the Basic Law was drafted with the future in mind. ... However, maintaining Hong Kong's system under the 'one country, two systems' principle does not mean stagnation. On the contrary, Hong Kong's system is expected and should be within the framework of the Basic Law. It will continue to develop within the society to suit the needs and conditions of the society at that time, and some may even exceed the drafters' thinking." (Note 11)
Improve the electoral system
To meet the actual needs of Hong Kong, we have made a major move to pass the 2021 Improvement of the Electoral System (Comprehensive Amendment) Bill in accordance with the revised Annexes 1 and 2 of the Basic Law promulgated by the Standing Committee of the National People's Congress. .
A well-developed electoral system aims to promote a consultative environment, work towards common goals and reduce polarization, so as to gradually achieve universal suffrage as stipulated in Articles 45 and 68 of the Basic Law.
education of the rule of law
In line with the above developments, the Department of Justice has launched educational activities under the "3E" rule of law project of the "Vision 2030 - Focus on the Rule of Law" plan (the "Vision 2030" plan) to actively educate students and teachers on the Constitution, the Basic Law and national security knowledge.
On a professional level, the Department of Justice hosted the "Hong Kong National Security Law" legal forum "National Security Home Good" in 2021, inviting a number of well-known speakers to share their experience in implementing national security laws in Hong Kong and abroad.
In addition, the Department of Justice has also published the "Document Collection on the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region of the People's Republic of China", as well as the publication collection "Tracing the Origin" for the Legal Summit Forum on the 30th Anniversary of the Promulgation of the Basic Law held in 2020. A correct understanding of the Basic Law and the Hong Kong National Security Law provides authoritative reference materials.
Cooperation Framework with the Mainland on Insolvency
As I mentioned in my speech in 2019, we have set up an expert group to study mutual recognition and assistance between Hong Kong and the Mainland in bankruptcy and corporate debt restructuring.
We have completed the first phase of work in May 2021 and signed the minutes of the meeting with the Supreme People's Court.
As far as I know, there have been cases that have benefited from this framework.
global cooperation
In 2019, I also announced the establishment of the Inclusive Dispute Avoidance and Resolution Office (Inclusive Office).
Since then, with the support of the Central People's Government, the Pratt & Whitney Office has completed a number of international cooperation projects.
One of the major events is to host the 59th Asian-African Legal Consultative Organization (AALCO) annual meeting for the first time in a mixed format in Hong Kong.
Premier Li Keqiang delivered an opening speech at the meeting and announced the establishment of the AALCO Hong Kong Regional Arbitration Center.
He pointed out that the Hong Kong Regional Arbitration Center "will provide Asian and African countries with more convenient and efficient dispute resolution services, and will also add luster to Hong Kong, the "Pearl of the Orient"."
As an international intergovernmental organization, AALCO provides a unique and important platform to bring to the attention of Asian and African perspectives on participation in international law.
I am honored to be elected to chair the 59th Annual Meeting.
The preparatory work for the establishment of the AALCO Regional Arbitration Centre in Hong Kong is currently underway to ensure that the Centre can be put into operation.
Another inter-departmental meeting, the UNCITRAL (Note 12) Inter-Working Group III meeting, was held in Hong Kong last year in a mixed format.
In July 2021, UNCITRAL also adopted a proposal for its secretariat to cooperate with the Department of Justice and the UNCITRAL Co-operation Project Office to participate in the "Inclusive Global Legal Innovation for Inclusiveness" established in Hong Kong on online dispute resolution. platform”, which I also mentioned in my speech in 2021.
We hope that through the cooperation project with UNCITRAL, both parties can work together to promote online dispute resolution services, raise public awareness in this area, and provide exclusive capacity building.
Last year's Law Week also included another long-term cooperation project with UNCITRAL, the biennial UNCITRAL Asia-Pacific Judicial Conference, and the launch of the Hong Kong Rule of Law Information Database.
The latter is a key project of the "Vision 2030" plan, and its research aims to collect practical and objective data to review the practice of the rule of law.
In terms of capacity building, we have negotiated arrangements with a number of different international organisations whereby practitioners from the public and private sectors are seconded to the Hague Conference in The Hague (Note 13) and the Private Law Society in Rome (Note 14).
Under the Junior Professionals Programme (Note 15), we will second a legal officer to UNCITRAL headquarters in Vienna.
As for the legal profession, the holding of the Greater Bay Area Bar Examination, which allows Hong Kong legal practitioners to engage in the legal affairs of the People's Republic of China in the Greater Bay Area, is essential for opening up the legal market and integrating into the development of the motherland.
The dual qualification of Hong Kong lawyers will help Hong Kong to provide services to enterprises in the Greater Bay Area.
Amendments to the Legal Practitioners Ordinance
Finally, I am delighted that the Legal Practitioners Ordinance (Note 16) has been amended so that all legal officers who meet the eligibility requirements, whether barristers or solicitors, may be considered for appointment as senior counsel in recognition of their ability.
Job Outlook
Looking ahead, the overall priority of the HKSAR is to fulfill its constitutional responsibilities, safeguard national security, and conduct local legislation on Article 23 of the Basic Law.
This constitutional responsibility is not only enshrined in the Basic Law, but also in Paragraph 3 (Note 17) of Decision 528 of the National People's Congress and Article 7 of the National Security Law.
The Department of Justice will continue to make every effort to provide independent professional legal advice and support the Security Bureau in formulating relevant legislative procedures.
The Law Reform Commission has published a report on Fee Structure in Relation to Arbitration Results.
The Arbitration Promotion Advisory Committee expressed its support for the implementation of the report's recommendations, and the Department of Justice is also actively following up.
In order to maintain and enhance Hong Kong's competitiveness as a major arbitration centre, facilitate access to justice and respond to the growing demands of parties for flexible prices and fees, it is necessary to implement this proposal, which is supported by the business community.
Apart from arbitration, Hong Kong has also been promoting international mediation, especially international investment dispute mediation.
We have established good links with ICSID training courses in this area and will continue to take advantage of this.
Mediation is well suited to resolve international commercial disputes, especially disputes between countries over long-term projects.
Mediation is the best way to resolve conflicts between countries. It focuses on common interests while maintaining relations between all parties. It is in line with the international principles of peaceful coexistence and peaceful settlement of disputes, which are enshrined in important documents such as the UN Charter (Note 18).
We also actively promote the good use of mediation in the UNCITRAL Working Group III Intersessional Meeting.
We are ready to provide and promote international mediation services and cooperate with our counterparts in the Greater Bay Area. In December last year, the third Guangdong-Hong Kong-Macao Greater Bay Area Legal Department Joint Meeting formulated the "Guangdong-Hong Kong-Macao Greater Bay Area Mediator Qualification Evaluation" Standards" and "Guangdong-Hong Kong-Macao Greater Bay Area Mediators' Best Practices for Professional Conduct", and will continue to cooperate in other areas.
We will spare no effort to carry out the work in this area with a view to implementing some of the ideas discussed in the past.
We will continue to advance various projects under Vision 2030, especially the research on the use of objective data to be launched at Hong Kong Law Week 2021.
This year, we will hold the "Basic Law" legal summit forum "Ben Guzhi Rong", publish a publication entitled "Basic Law Drafting Materials and Selected Cases", and hold the "Hong Kong National Security Law" legal forum "Rejuvenate the country and establish the country", in order to promote mutual understanding Awareness of national security concepts.
Epilogue
Ladies and gentlemen, the basic premise of "one country" has been consolidated and national security has been guaranteed. I am convinced that the common law will continue to apply in Hong Kong after 2047.
Now is the time to truly appreciate the "one country, two systems" principle.
The Department of Justice will continue to promote a correct understanding of the rule of law and constitutional order in the community, maintain judicial independence, professionally serve as the government's legal adviser, and independently perform prosecution duties in accordance with the Basic Law.
All of the above are due to the full support of all the outstanding colleagues of the Department of Justice.
I would like to thank them for their dedication, perseverance, and professionalism.
Here, I wish everyone a prosperous year of the Tiger, good health, fierce dragons and tigers, and tigers and tigers prosperous!
thanks.
Note 1: Article 5 of the Basic Law states: "The Hong Kong Special Administrative Region shall not practise the socialist system and policies, and shall maintain the original capitalist system and way of life, unchanged for 50 years."
Note 2: "We have promised to keep our Hong Kong policy unchanged for 50 years after 1997. This promise is solemn. Why do we say it will remain unchanged for 50 years? This is well-founded, not just to stabilize Hong Kong. It takes into account that Hong Kong's prosperity and stability are closely related to China's development strategy. China's development strategy will take time, in addition to the 12 years of this century, it will take 50 years in the next century, then 50 years. How can the year change? Now that there is one Hong Kong, we have to build several "Hong Kongs" in the Mainland. That is, in order to achieve our strategic development goals, we need to be more open. In this case, how can we change our policy on Hong Kong? In fact, 50 years is just an image, and it will not change in 50 years. It cannot be changed in the first 50 years, and it does not need to be changed after 50 years. Therefore, this is not a rhetoric.” Experience" (June 3, 1988), Selected Works of Deng Xiaoping, Vol.
Note 3: Article 85 of the Basic Law states: "The courts of the Hong Kong Special Administrative Region shall conduct trials independently without any interference, and judicial officers shall not be prosecuted for their conduct in performing their judicial duties."
Note 4: Hong Kong Special Administrative Region v Jimmy Lai (2021) 24 HKCFAR 33, [2021] HKCFA 3
Note 5: Paragraph 2 of Article 42 of the "Hong Kong National Security Law" states: "A criminal suspect or defendant shall not be granted bail unless the judge has sufficient reasons to believe that he will not continue to commit acts endangering national security."
Note 6: Hong Kong SAR v Jimmy Lai (2021) 24 HKCFAR 33, [2021] HKCFA 3 para 62.
Note 7: Hong Kong Special Administrative Region v. Tang Yingjie [2021] HKCFI 2200 (Judgment); [2021] HKCFI 2239 (Sentence).
The Court of Appeal (in front of the Chief Justice Poon Siu-chuk and Vice-Presidents Yeung Chun-kuen and Lam Man-han of the Court of Appeal of the High Court) also reviewed other proceedings [Tang Ying Kit v Secretary for Justice [2021] 3 HKLRD 350, [2021] HKCA 912] challenged the Secretary for Justice's direction to direct the Court of First Instance to hear such criminal proceedings without a jury under section 46 of the Hong Kong National Security Act, and held that the direction was a prosecutorial decision, No interference is guaranteed by Article 63 of the Basic Law.
Under common law, review is only possible on limited grounds; unlike the applicant's argument, a prosecution decision cannot be challenged on the regular judicial review grounds of legality and procedural safeguards.
The Court of Appeal also held that a jury in a trial should not be regarded as the only means of achieving a fair trial in criminal proceedings.
Note 8: In the presence of Justice To Lai Bing, the then Justice of the Court of First Instance of the High Court, Pang Po-kin, and Justice Chan Ka-shin.
Note 9: Hong Kong Special Administrative Region v Wu Qiaoyi [2021] HKCFA 42
Note 10: Kwok Cheuk-kin, Lui Chi-hang, Leung Chung-hang, Leung Kwok-hung v. Secretary for Justice, Chief Executive and Secretary for Transport and Housing of the HKSAR [2021] 3 HKLRD 140 (Civil Appeal Nos. 8, 10, 87 and 88 of 2019, 2021 June 11)
Note 11: Kwok Cheuk-kin, Lui Chi-hang, Leung Chung-hang, Leung Kwok-hung v. Secretary for Justice, Chief Executive and Secretary for Transport and Housing of the HKSAR [2021] 3 HKLRD 140 (Civil Appeal Nos. 8, 10, 87 & 88 of 2019, 2021 11 June 2009) at paragraph 40.
Note 12: United Nations Commission on International Trade Law
Note 13: The Hague Conference on Private International Law
Note 14: International Institute for the Unification of Private Law
Note XV: United Nations Junior Professional Officers Programme
Note 16: Chapter 159
Note 17: The "Decision of the National People's Congress on Establishing and Improving the Legal System and Enforcement Mechanisms of the Hong Kong Special Administrative Region to Safeguard National Security" was adopted by the 13th National People's Congress on May 28, 2020.
Note 18: See, for example, Chapter VI of the Charter of the United Nations and the Declaration on Principles of International Law concerning the Establishment of Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by the United Nations General Assembly on October 24, 1970.
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Legal Year 2022 ｜ Zhang Juneng refers to the situation of judges under threat and upholds justice
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