The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the “Alliance”) emerged as one of the pioneering pro-democracy entities in Hong Kong, founded amidst the fervour of the 1989 Tiananmen Square protests in Beijing. Predicated on its core mission to champion the rehabilitation of democratic movements across China, the Alliance has perpetually been regarded by the Chinese government as a subversive entity.

In 2021, the Commissioner of Police issued formal notices to three representatives of the Alliance, mandating the disclosure of specific information pursuant to sections 3(1)–(3) of schedule 5 of the Implementation Rules for Article 43 of the Hong Kong National Security Law (the “Implementation Rules”). When the defendants refused to provide the information as requested, they were convicted and sentenced. Hence, the Alliance’s recent landmark victory in the Court of Final Appeal (the “CFA”), which quashed these convictions and sentences, represents a jurisprudential milestone that has elicited profound socio-political debate. This article demonstrates how the CFA applies common law interpretation methods to balance executive powers, even amidst increasing pressure from the Chinese and Hong Kong governments to prioritise national security safeguards.

Key Legal Issue Addressed in the Case

One critical question resolved in the case was: When the Commissioner of Police serves a written notice under sections 3(1)–(3) of schedule 5 of the Implementation Rules, requiring a foreign/Taiwan agent to provide specified information within a designated period and manner, must the Commissioner prove that the recipient is “factually” a foreign/Taiwan agent, or is it sufficient to demonstrate a “reasonable belief” that the recipient qualifies as such?

The Court’s Common Law-Based Interpretation

Consistent with Hong Kong courts’ longstanding approach to statutory interpretation, CFA dissected the elements of the Implementation Rules using common law principles. The Court concluded that the phrase “reasonably believes” in sections 3(1) of schedule 5 pertains only to the element of “necessity to prevent or investigate offences endangering national security”. In other words, the “reasonable belief” requirement does not extend to establishing whether the recipient is a foreign/Taiwan agent or whether a person is an office-bearer or manager of such an agent. In other words, the Commissioner must prove that the recipient of the notice is factually a foreign/Taiwan agent and that the person is factually an office-bearer or manager of such an agent. Mere “reasonable belief” is insufficient.

Furthermore, the CFA emphasised that when interpreting schedule 5 of the Implementation Rules, the Court also needed to consider schedule 7, as mandated by the common law principle to interpret statutes holistically. Section 2(4) of schedule 7 requires a judge to be satisfied that there are “reasonable grounds” to suspect a person possesses information or materials relevant to an investigation before granting an order for disclosure. By contrasting this “reasonable grounds” standard in schedule 7 with the absence of a “reasonable belief” requirement in schedule 5, the Court affirmed that schedule 5 imposes a more stringent burden of proof in establishing the factual basis of the recipient’s identity.

Balancing National Security and Human Rights in Judicial Practice

The CFA’s interpretation of schedules 5 and 7 thereby strengthens procedural safeguards afforded to individuals subject to such notices. Under schedule 7, an application for a disclosure order must be filed ex parte by the Secretary for Justice. Under  Hong Kong law, ex parte applications impose a continuous obligation of full and frank disclosure on the applicant, requiring the honest presentation of all material facts, including those adverse to their case. Furthermore, schedule 7 explicitly preserves the doctrine of legal professional privilege while excluding reliance on the privilege against self-incrimination.

This ruling serves as a compelling example of the Hong Kong courts’ ongoing efforts to interpret national security laws and regulations using common law interpretation methods within the context of increasing pressures from both the Chinese and Hong Kong governments to ensure national security. While the extent to which the Hong Kong judiciary can maintain this promising trajectory remains uncertain, the success achieved by the Alliance in this case highlights the judiciary’s commitment to balancing the complex interplay between national security imperatives and the protection of human rights.