No early release for offenders jailed in Hong Kong for offences endangering national security
- Bill also grants new powers to police that will affect rights of people arrested under proposed legislation
- Controversial measure involves amending Prison Rules to stipulate that anyone serving sentence for an offence endangering national security ‘must not be granted remission’
Offenders jailed under Hong Kong’s proposed domestic security legislation will be barred from early release, in a move that could affect those charged earlier under the Beijing-imposed national security law.
The Safeguarding National Security Bill unveiled on Friday also grants new powers to police that will affect the rights of people arrested under the proposed legislation, such as lengthening their detention period and barring them from meeting specific lawyers.
Apart from introducing five new types of offences including treason, insurrection and theft of state secrets, the bill mandated under Article 23 of the city’s mini-constitution, the Basic Law, also proposes a series of measures in strengthening authorities’ enforcement power in national security cases.
One of the most controversial measures is to amend the Prison Rules, alongside other jail-related ordinances, to stipulate that anyone serving a sentence for an offence endangering national security “must not be granted remission” unless the commissioner of correctional services is satisfied that such a move will not be contrary to the interests of national security.
Under the Prison Rules, a person serving a jail sentence can be granted remission of one-third of the actual term on the grounds of their “industry and good conduct”.
“The granting of early release is never a necessary right to prisoners,” a government paper sent to the legislature said.
“In order to safeguard national security and protect the public, it is necessary to impose more stringent restrictions on the granting of early release to prisoners involved in offences endangering national security.”
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The bill also states that the new rule applies whether the sentence of the prisoner “was imposed before, on or after” the new clause comes into force.
That implies that people arrested under the national security law Beijing imposed on the city in 2020, notably 47 opposition activists charged with conspiracy to subversion and Apple Daily founder Jimmy Lai Chee-ying on trial for sedition and collusion with foreign forces, could also be affected.
Authorities insisted there was no issue of “retrospectivity”, with the new rule not increasing prisoners’ length of sentence and not applicable to those who were already granted early release.
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But former Democratic Party chairwoman Emily Lau Wai-hing, a justice of the peace who is tasked with visiting various correctional institutions, said it was “undesirable” that the proposal could affect those who were already charged, saying “it is not the way Hong Kong does it”.
“Those who are charged might be disappointed as they have earlier expected they will have a remission,” she said. “This is new to them and unfair to everyone.”
The bill also grants police the power to extend the detention period of a person arrested for national security offences without charge from the current 48 hours to a further 14 days after the two-day period, and to apply to the courts for a “movement restriction order” for an arrestee on bail.
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Under the order, an arrestee can be asked to live in a specific place, not enter a specified area or not communicate with a specified person during a specified period.
The order is valid for three months and can be extended for a month each time, subject to a magistrate’s decision.
The force, with the new power, can also apply to a magistrate to ban an arrested suspect from consulting certain lawyers.
The bill also lays down new moves to target “absconders”, after a number of opposition politicians continued with their high-profile activism which authorities said was in violation of the national security law after they left the city.
The measures include suspending any of their qualifications or registrations, cancelling their passports and banning anyone from funding them or leasing properties to them.
Human rights lawyer Mark Daly said that targeting particular lawyers not to be consulted was contrary to common law traditions.
“Immediate access to a lawyer of choice has been a significant safeguard and it is a great concern that we would want to deviate from our traditional common law protections,” he said.
Scholar Eric Lai Yan-ho, a research fellow at the Centre for Asian Law at Georgetown University in Washington, cautioned that the proposed new power for police to limit arrestees’ legal access could have a chilling effect on the sector.
“Lawyers and law firms might be worried whether serving clients [charged with national security offences] would make them a target to authorities,” Lai said.
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But senior counsel Ronny Tong Ka-wah, also an adviser in the government’s key decision-making Executive Council, argued that it was already “relatively reasonable” for authorities to let the courts serve as gatekeepers in granting an extension of the detention period, instead of allowing police to decide on their own.
“You can see the proposed Hong Kong law has fairly respected the rule of law to totally leave the matter to the courts to handle,” he said.
Tong also defended the proposal to ban arrestees from approaching specific lawyers, arguing their basic rights were not affected given they were not barred from finding other ones.
“They still enjoy the right of silence,” he said.
