- 罪行的定義必須合理確切（with reasonable certainty）。
1. Under Article 23 of the Basic Law, the Hong Kong Special Administrative Region has a constitutional duty to enact national security legislation covering seven areas. In the last 23 years, we have failed to do so. Only one attempt had been made. Further, there is no prospect of Hong Kong doing so for many years to come. Indeed it cannot be said with any confidence that we will be able to do so before 2047.
2. In these circumstances and having regard to events in Hong Kong in the last few years, the decision of the National People’s Congress to authorize its Standing Committee to enact national security legislation for Hong Kong is understandable and justifiable. It will deal with some areas covered by BL23. But the crux of the matter is in the actual content of the proposed law.
3. The details of the draft legislation have not been revealed. As I understand it, the intent is that the legislation will be designed to fit Hong Kong’s legal system. In order to do so, it should be consistent with the principles of our legal system based on the common law. This intent must be fully reflected in the proposed law.
4. The law must not be retrospective. Offences must be defined with reasonable certainty. Their scope must be restricted to what is necessary to achieve the legislative purpose. Investigatory powers must be governed by Hong Kong law. In particular, premises cannot be searched and phones cannot be tapped unless judicial authorization has been obtained. Prosecution decisions should be made in accordance with our Prosecution Code. Trials should be conducted in Hong Kong openly and fairly. The accused would be presumed innocent and guilt must be established beyond reasonable doubt.
5. No doubt, the legal profession and the community would be scrutinizing the draft law. When consulted as required by the Basic Law, the HKSAR Government must make every effort to ensure that the proposed law conforms to the principles of our legal system. Citizens have every right to expect that the Government would fulfill its responsibility fully in this regard.
6. The suggestion has been made that only judges who are Chinese nationals with no right of abode in any foreign country should be allowed to adjudicate cases arising from the legislation. This gives rise to serious concern. Such a requirement will bar not only non-permanent overseas judges in the Court of Final Appeal but also many full time Hong Kong judges at all levels of court, both local and expatriates, who are believed to hold foreign passports. (I understand that most of our full time judges are local judges and that the number of expatriate full time judges is now down to well below 10% of the total.)
7. Such a requirement would be detrimental to judicial independence as guaranteed by the Basic Law. Under it, judges are chosen on the basis of their judicial and professional qualities and are appointed by the Chief Executive on the recommendation of an independent commission.
8. On appointment, as required by the Basic Law and legislation, all judges swear the judicial oath to uphold the Basic Law, to bear allegiance to the HKSAR of the People’s Republic of China, to serve the HKSAR and to administer justice without fear or favour. A judge’s ability to fulfill this oath fully is not affected by his holding a foreign passport. There is no conflict or perceived conflict. Ms Elsie Leung, the former Vice-chairman of the Basic Law Committee, has already expressed the same view. Whatever the arrangements in other jurisdictions may be, barring our judges who hold a foreign passport from dealing with national security cases in Hong Kong would not be justified.
9. It should be noted that since 1997, such judges had dealt with sensitive cases, such as the case on the constitutionality of the law criminalizing desecration of the national or regional flag and the Congo case on the doctrine of state immunity. No one had suggested that they should have been disqualified from sitting in these cases.