香港国安法与本地法律在司法适用中的关系
江乐士
香港特区政府律政司前刑事检控专员
法学教授、资深大律师
女士们、先生们，
早上好！非常感谢全国港澳研究会的邀请，下面我主要谈一谈司法机关如何将香港国安法融入香港特别行政区的法律体系。
根据基本法（第8条），香港适用普通法。2022年7月1日，国家主席习近平也表示，中央政府支持香港长期保持普通法制度。香港和其他地区都欢迎这一点，其中一个重要的原因是普通法制度具有其独到的优势，香港多年来都从中受益。传统上，普通法优先考虑程序权利应当平等、法律程序应具有确定性、审判程序应符合法律规则，但它也是灵活的，可以适应新的发展。
例如1991年颁布的《香港人权法案条例》（第383章），使《公民权利和政治权利国际公约》的条文在香港生效适用（依据基本法第39条，其现在仍适用于香港），这带来了新的挑战。司法机关不得不对一些既定法律概念彻底进行重新评估，但由于普通法制度足够灵活，可以适应新的方式方法，法院能在普通法制度范围内完成这一任务。
2020年6月30日，全国人大常委会审议通过了香港国安法（并于同日在香港刊宪公布），作出了一些新的规定。诚然，在经历了试图破坏“一国两制”的暴乱之后，作出这些规定不可避免，但人们仍然担心其可能造成的影响。一些观察人士曾担心，香港的普通法制度无法吸纳新的规范。香港的法律体系有其独特的运行方式，当司法机关将（新的方式方法）融入其中时，可能会造成严重的负面效果。但香港国安法颁布已两年半，司法机关的几项判决在不违反基本原则的情况下，实现了判决结果的公正，上述担忧也随之烟消云散了。
尽管已经裁决的国家安全案件数量较少，但这些案件已为我们提供了重要指导。下面我举三个具有里程碑意义的判决来说明这一点。
一、香港国安法与量刑
香港国安法公布后，量刑条款有一些陌生术语，起初引起人们的疑虑，但司法机关参照既定的解释规则和基本常识对这些条款进行了解释，许多最初的担忧也逐渐消失了。
例如，有观点认为，香港国安法（第33条）规定法庭在三种情形下，可以从轻、减轻处罚，犯罪较轻的可以免除处罚，而这里所列的三种情形应是穷尽性的。这三种情形是：在犯罪过程中，自动放弃犯罪或者自动有效地防止犯罪结果发生的；自动投案，如实供述自己的罪行的；揭发他人犯罪行为，查证属实，或者提供重要线索得以侦破其他案件的。
一种观点认为，减轻刑期的依据看起来只可能是这三种情形。果真如此的话，这就意味着法院早已承认的其他减刑因素，如认罪、良好品行或年龄（年少或年老），不再与量刑相关。如果这样，就会颠覆司法机关长期发展起来的量刑体系，且可能会引发极大的不满。然而，司法机关对香港国安法（第33条）的解释方式却并非如此，在新的法律框架下，其他减刑因素仍然相关。
高等法院上诉法庭去年11月审理这一问题时（CACC 61/2022）解释说，在不损害香港国安法首要目的的前提下，“立法的原意是有关求情的本地判刑法律应与香港国安法并行”。因此，这就意味着香港国安法（第33条）中没有提到、但在普通法中得到承认的其他减刑因素，特别是认罪，仍然相关。在法院考虑对特定罪行在相应的量刑幅度内从轻处罚时，其可以发挥作用。
因此，如某人“积极参加”颠覆活动，他将面临3年以上10年以下的有期徒刑，实际刑期将根据犯罪的严重程度以及各种从重或从轻的量刑因素而定。同时上诉法庭澄清，只有在香港国安法（第33条）明确规定的三种情形下，才能对被告减轻处罚，在更低的量刑档次中判刑（即在所举例子中，判处3年以下有期徒刑，而不是3至10年有期徒刑），而普通法中的其他减刑因素则不能产生这一效果。
二、香港国安法与陪审团审判
2020年香港国安法通过后，有人指责它侵犯了被告接受陪审团审判的权利。但这是一种恶意攻击（因为根本没有这种权利），而且暴露出对刑法的无知。远在香港国安法出台之前，2010年，香港终审法院上诉委员会就指出，“很明显，在香港并没有接受陪审团审判的权利”（FAMC 64&65/2009）。
香港国安法（第46条）授权律政司司长“可基于保护国家秘密、案件具有涉外因素或者保障陪审员及其家人的人身安全等理由”发出证书，指示被告由三名法官组成的审判庭而不是陪审团进行审判，在2021年的香港国安法首案中，被告却仍对此提出挑战。在律政司司长以担心陪审团审理会妨碍审判的公正性为由，发出毋需陪审团审理的证书后，被告主张接受陪审团审判是一项宪法权利，这一主张被高等法院原讼法庭驳回（HCAL 473/2021）。
上诉法庭在审理本案（CACV 293/2021）时解释道，律政司发出证书的决定是根据基本法作出的检控决定，而基本法规定，律政司“主管刑事检察工作，不受任何干涉”（第63条）。接受陪审团审判不是一项宪法权利，而且无论如何，陪审团审判也不是在原讼法庭实现正义的唯一方式。其强调，在区域法院或裁判法院，大部分刑事案件都是由法官或裁判官在没有陪审团的情况下自行审理的，从来没有人认为这样的审判不公正。
上诉法庭还表示，传统普通法中处理检控官恶意检控的路径也适用于律政司司长根据香港国安法作出的决定。这意味着，如果可以证明律政司司长发出毋需陪审团审理的证书的行为不当，那么该决定就像其他检控决定一样，可以接受司法复核。因此，这让律政司司长新获得的香港国安法权力受到了司法监督，令人放心。
三、香港国安法与保释
香港国安法（第42（2）条）规定，除非法官有充足理由相信被告人不会继续实施危害国家安全行为，否则不得准予保释。在涉及国家安全的案件中，提高保释门槛显然是不可避免的。终审法院在考虑是否准许国安案件嫌疑人保释时（FACC 1/2021）强调，香港国安法（第4及第5条）明确规定，适用香港国安法时应保障和遵守基本法和《香港人权法案条例》所规定的权利、自由和价值。虽然香港国安法（第42（2）条）在国家安全案件中对于允许保释的一般规则做了具体的例外规定，但法官在审查保释申请时仍须遵循一定的程序步骤。
终审法院特别指出，法官在决定是否有充分理由相信被告不会继续危害国家安全时，必须考虑一切与决策相关的因素，包括可施加的合理保释条件和其他在审讯中不会被接纳为证据的材料。在判断是否有“充分理由”时，法官必须对该事项作出自己的评估和判断，而不应考虑举证责任的一般规则。换句话说，常识是解决问题的最佳方法。
终审法院指出，在评估了所有相关材料后，如果法官没有充分理由认定被告不会继续实施危害国家安全的行为，就必须拒绝保释。不过，如果法官认定有充分理由，下一步就是考虑所有其他与批准保释有关的事项，并适用有利于保释的传统推定规则。这包括考虑是否有实质理由相信被告将不依期归押、在保释期间犯罪，或者干扰证人或以其他方式破坏妨碍司法公正。
虽然香港国安法的保释条款（第42（2）条）对某些人来说可能过于苛刻，但其必要性显而易见，而终审法院以一种既符合逻辑又公平的方式对这一新条款进行了解释。（终审法院）采取了一种灵活的方式来适用该条款，现在很清楚的是：决定保释的法官可以综合考虑（各种相关因素），从而确保公正的结果。有了这一澄清，现在每个人都清楚了自己相应的处境，而2022年的一份报告显示，被控犯有香港国安法罪行的人中，有25.7%获得了保释。这表明法官在认真考虑每一项保释申请的实际情况，相当数量的嫌疑人能够达到门槛并获得保释。
四、结论
自2020年以来，司法机关在涉及各种问题的案件中，就如何将香港国安法融入以普通法为基础的法律体系提供了宝贵的指引。司法机关还更进一步，确保香港国安法条款得到合理的解释，确保其原则在既定法律制度范围内得到适用，确保其目标得到实现。整个过程充分显现出了司法机关的专业精神。司法机关处理国家安全问题时所采取的方式，符合刑事司法传统中的最高标准，这无疑预示着法治的光明前景。
谢谢大家。
The relationship between the Hong Kong National Security Law and local laws in judicial application
Grenville Cross SC
Former Director of Public Prosecutions of the Hong Kong SAR
Professor of Law and Senior Counsel
Good morning, ladies and gentlemen
I am most grateful to the Chinese Association of Hong Kong and Macao Studies for inviting me to address you today on how the Judiciary has integrated the National Security Law for Hong Kong (NSL) into the legal system of the Hong Kong SAR.
By virtue of the Basic Law, the common law applies in Hong Kong (Art.8), and President Xi Jinping confirmed on July 1, 2022 that the Central Government supports its retention over the long term. This has been well received in Hong Kong and beyond, not least because its unique characteristics have served the city well over many years. The common law has traditionally prioritized such things as equality of arms, certainty in legal proceedings and rules-based trials, but it is also versatile, and can accommodate new developments.
Thus, for example, when the Hong Kong Bill of Rights Ordinance (Cap.383) was enacted in 1991, thereby giving effect to the provisions of the International Covenant on Civil and Political Rights (which still applies in Hong Kong under the Basic Law’s Art.39), it posed fresh challenges. Although the Judiciary had to undertake some radical reappraisals of established legal concepts, it was able to achieve this within the parameters of a common law system that was sufficiently flexible to adjust to new approaches.
When the National Security Law (NSL) was enacted by the NPCSC on June 30, 2020 (and promulgated in Hong Kong the same day), it also contained some novel provisions. Although, after an insurrection that had sought to wreck the “one country, two systems” policy, these were unavoidable, there were concerns over their possible implications. Some observers were worried that Hong Kong’s common law system would be unable to absorb the new methodology, and that serious harm could result when the Judiciary integrated it into a legal system that had its own way of doing things. Over 2.5years, however, have now elapsed since the NSL was enacted, and those concerns have been laid to rest by several judgments in which the Judiciary has, without violating fundamental principles, achieved fair outcomes.
Although only a small number of national security cases have been finally determined, significant guidance has nonetheless been provided, as three landmark judgments demonstrate.
1. NSL & SENTENCING
Once the NSL’s sentencing provisions were unveiled, they were found to contain unfamiliar terminology, and this initially appeared problematic. They have, however, by reference to established canons of interpretation and elementary common sense, been explained by the Judiciary, and much of the initial concern has dissipated.
Some commentators, for example, thought that, when the NSL (Art.33) stated that a trial court could impose a lighter penalty, or that the penalty may be reduced, or, in the case of a minor offence, exempted altogether, in three situations, those situations were exhaustive. Those three situations arise: firstly, if the accused has, during the commission of the offence, voluntarily discontinued his involvement or effectively forestalled its consequences; secondly, if the accused has voluntarily surrendered himself or herself and given a truthful account of the offence; or, thirdly, if the accused has reported an offence committed by others or provided information which assists the authorities in solving another criminal offence.
On one view, it appeared that these three mitigating factors were the only possible bases for reducing a sentence. If so, it would have meant that the other mitigating factors that the courts have long since recognized, such as a guilty plea, positive good character or age (young or old), were no longer relevant to sentencing. If this was indeed the impact, it would have turned on its head a sentencing system developed by the Judiciary over many years, and this could have triggered great resentment. This, however, is not the way in which the NSL (Art.33) has been interpreted by the Judiciary, and other mitigating factors remain relevant, albeit in the context of a new legislative framework.
When the Court of Appeal examined this issue last November (CACC 61/2022), it explained that it was “the legislative intent that local sentencing laws on mitigation are to operate in tandem with the NSL”, provided they are consistent with its primary purpose. What this means, therefore, is that other mitigating factors, not mentioned in the NSL (Art.33) but recognized at common law, notably a guilty plea, are still relevant and will operate when a court is considering a lighter sentence within the respective range for a particular offence.
Thus, for example, if somebody “actively participates” in subversive activity, he will face a sentence of anywhere between 3 and 10 years imprisonment, with the actual term being determined by the gravity of the offending and any aggravating or mitigating factors. At the same time, the Court of Appeal clarified that it is only the three mitigating factors highlighted in the NSL (Art.33) that can result in a defendant being sentenced in a lower sentencing bracket for the offence (ie, in the example given, of below 3 years, rather than in the 3 to 10 years bracket), whereas the other common law mitigating factors cannot have this effect.
2. NSL & JURY TRIALS
After the NSL was enacted in 2020, some people complained that it violated a defendant’s right to trial by jury. This, however, was mischievous, as there is no such right, and it demonstrated an ignorance of the criminal law. As early as 2010, long before the NSL saw the light of day, the Hong Kong Court of Appeal’s Appeal Committee observed that “it is clear that there is no right to trial by jury in Hong Kong” (FAMC 64 & 65/2009).
Although the NSL (Art.46) entitles the Secretary for Justice to issue a certificate directing that a defendant be tried in the Court of First Instance by a 3-judge panel instead of by a jury on the “grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members,” this was challenged by the accused person in the first national security trial in 2021. He claimed, after the Secretary issued a certificate for a non-jury trial because of concerns that jury interference would prevent a fair trial, that there was a constitutional right to trial by jury, although this was rejected by the Court of First Instance (HCAL 473/2021).
When the case reached the Court of Appeal (CACV 293/2021), it explained that the Secretary for Justice’s decision to issue the certificate was a prosecutorial decision under the Basic Law, which states that the Department of Justice “shall control criminal prosecutions, free from any interference” (Art.63). There was no constitutional right to a jury trial, and, in any event, a jury trial was not the only way justice can be achieved in the Court of First Instance. It emphasized that most criminal trials are conducted by judges or magistrates sitting alone without juries in the District Court or the Magistrates Court, and nobody had ever seriously suggested such trials were other than fair.
The Court of Appeal also indicated that the traditional common law approach to allegations of bad faith by prosecutors extends to a decision taken by the Secretary for Justice under the NSL. This meant that, if the Secretary could be shown to have acted improperly in issuing the certificate for a non-jury trial, the decision, like any other prosecutorial decision, would be judicially reviewable. This, therefore, subjects the Secretary’s newly-acquired NSL power to judicial oversight, which is clearly reassuring.
3. NSL & BAIL
Although the NSL (Art.42(2)) provides that bail will not be granted to an accused unless the judge has sufficient grounds for believing that he will not continue to commit acts endangering national security, a higher threshold test is clearly unavoidable in cases involving the country’s very survival. However, when the Hong Kong Court of Final Appeal (HKCFA) considered the granting of bail to national security suspects (FACC 1/2021), it emphasized that the NSL expressly provides for the rights, freedoms and values contained in the Basic Law and the Hong Kong Bill of Rights to be protected and adhered to in the application of the NSL (Art.’s 4 and 5). While the NSL (Art.42(2)) contained a specific exception in national security cases to the general rule in favor of the grant of bail, there were procedural steps which had to be observed by a judge who was determining a bail application.
In particular, said the HKCFA, a judge, in deciding if there are sufficient grounds for believing that an accused would not continue to endanger national security, has to consider everything that is relevant to the decision-making process, including the possible imposition of bail terms and materials that would not be evidentially admissible at trial. In resolving the “sufficient grounds” issue, the judge has to make his own evaluation and exercise his own judgment in the matter, without regard to customary notions of the burden of proof. In other words, a common-sensical approach is the best means of resolving the question.
Once all relevant material had been assessed, the HKCFA indicated that bail must be refused if the judge does not have sufficient grounds for concluding that the accused will not continue to commit acts endangering national security. If, however, the judge decides he has sufficient grounds, the next step is to consider all other matters relevant to the grant of bail, applying the traditional presumption in favor of bail. This includes a consideration of whether there are substantial grounds for believing the accused will fail to surrender to custody, or will commit another offence while on bail, or will interfere with a witness or otherwise pervert or obstruct the course of justice.
Although the NSL’s bail provision (Art.42(2)) may seem harsh to some people, its necessity is obvious, and the HKCFA has interpreted a novel provision in a way that is both logical and fair. A flexible approach to its application has been adopted, and it is now clear that a judge determining a bail application can ensure a just outcome by looking at things holistically. With this clarification, everybody now knows where they stand, and it was reported by the Asia Society in 2022 that 25.7 percent of those charged with NSL offences had been granted bail. This indicates that judges are conscientiously considering each bail application broadly on its merits, and that a not inconsiderable number of suspects are able to discharge the threshold test and obtain bail.
4. Conclusion
Since 2020, the Judiciary, in cases concerning a variety of issues, has provided invaluable guidance as to how the NSL should be integrated into a common law based legal system. It has gone the extra mile in ensuring that its provisions are sensibly interpreted, its principles are applied within established legal parameters, and its objectives are fulfilled. No more could have been asked of it, and its professionalism has shone forth throughout the process. It has approached national security questions in a way that accords with the highest traditions of criminal justice, and this bodes well for the rule of law.
Thank you.