Can ‘enemies of the state’ be acquitted? The rule of law in Hong Kong

Can ‘enemies of the state’ be acquitted? Equality before the law goes to the heart of the rule of law. Other characteristics include a relatively independent judiciary and fair and open trials. Hong Kong’s is mostly such a system. Still, especially since 2020 authorities have tested, restricted, and damaged Hong Kong’s rule of law using a new national security regime. A price worth paying, Beijing may calculate, for increased security.

Hong Kong’s legal system is peculiar. It attempts to combine the common law, a colonial legacy, with China’s communist party-dominated mainland system. Common law elements include presumption of innocence, jury trials, bail, remission of prison sentences for good behavior, laws not taking retrospective effect, and the right of defendants to choose their own counsel and the judiciary to assign its own cases. Courts in Hong Kong are mostly open to the public. 

Mainland elements include Beijing politicians having untrammeled authority to reinterpret the Basic Law, Hong Kong’s constitutional document, affecting its scope and meaning, issuing certificates to intervene in any legal proceeding, and adding new domains over which central authorities have exclusive control. In 2020, central authorities added national security to their exclusive control set, bringing in Beijing’s expansive notion of national security (embracing 20 domains, including economic, financial, cultural, social, food, and data,). This is mainland-style legalism writ large.

Using the new national security regime, central authorities eroded many of the common law features, adding to uncertainty. They expanded some existing colonial-era crimes (treason, secession, sedition, subversion, theft of state secrets, espionage, and relationships with foreign political organisations) and added new ones (terrorism, insurrection, sabotage, and external interference). Officials jacked up the penalties. Authorities effectively eliminated jury trials and bail in national security cases. Politicians now issue national security certificates to limit the choice of counsel, classify cases as “involving NS (national security)”, and/or deny remission for good behavior. From among the judiciary, politicians select national security judges (now 29 out of a field of about 200) to hear such cases.

Authorities arrested 10,000 people for crimes committed during Hong Kong’s six months of unrest in 2019. Of these, 326 were arrested for national security crimes. Their trials continue. 

According to the World Justice Project, Hong Kong’s rule of law ranked 23rd out of 142 jurisdictions in 2024. Not a bad showing. China ranked 95th. Hong Kong people perceive that the rule of law, a core value, dramatically declined from 2019-2020, coinciding with social unrest and the introduction of the national security regime. Surveys also show that it has rebounded since 2021 returning to pre-2019 levels. Again, not a bad showing.

How do the common law and mainland national security systems come together? I am untrained in the law but have attended national security court proceedings. I watched as a Court of Appeal, staffed by national security  judges, reduced the original sentences of the defendants, based on common law principles; as a national security judge suggested in a to-be-continued habeas corpus hearing that the defendant should be bailed (a common law practice); as the prosecution then presented in court  two certificates, one for the national security court and the other for prisons, asserting that the case ‘involved’ national security, immediately terminating the habeas corpus hearing and preempting any prisons decision on remission. And so forth—the examples are numerous. I observe that in national security cases, many judges and lawyers attempt to apply common law principles, sometimes successfully, but in the end the national security regime triumphs.  

The ability of politicians in Beijing to intervene in any legal or legislative matter in Hong Kong using the artifice of the National People’s Congress Standing Committee is a “crucial flaw” in the design of Hong Kong’s one country-two systems. As constitutional lawyers Chen and Yap write: “The NPCSC is not considered by significant sections of the public, including many members of the legal community, to be an impartial, legitimate, and trustworthy guardian of the city’s autonomy or interpreter of its Basic Law rights.” 

The “judicial mood” in Hong Kong apparently allows national security judges to “lose sight of the traditional role of the common law of defending liberty of the subject against the overreaching state," allowing themselves to become "instruments of government policy,” writes former foreign Non-Permanent Judge of the Court of Final Appeal, Jonathan Sumption. He concludes that “the discretions vested in the Hong Kong police and the arbitrary way in which the law has been applied by the executive are not consistent with the rule of law.” It is therefore “seriously compromised.” 

Two high profile cases demonstrate these points. In one, a judge convicted Stand News editors of sedition, publishing op-eds that incited hatred of the government, now a national security crime. The verdict effectively criminalises the expression of opinion, not seen in Hong Kong since the 1960s. The judge described the two editors as not doing “genuine journalists’ work” but “taking part in the so-called resistance against the government.” As longstanding principles of journalism were overturned in the verdict, veteran journalists in Hong Kong reacted with disbelief. The chilling effect on the media is palpable. 

In a second case, national security judges convicted 45 leaders and participants of a pan-democratic primary election held on 11-12 July 2020 designed to select candidates for a then upcoming election of the Legislative Council, Legco. Using constitutionally provided tools to force the Chief Executive to resign is subversion, attempting to overthrow the state, judges ruled. Expert critics called the decision “legally indefensible.” Still, two were acquitted. So, ‘enemies of the state’ can be acquitted in Hong Kong’s national security trials, but rarely. 

The presence of foreign non-permanent judges on the Court of Final Appeal acts as a kind of bellwether of the health of Hong Kong’s rule of law. Several have resigned to protest what they perceive to be the politicisation of the legal system. As of June 2025, six remain.

The business community may hope that the rule of law is divisible. That while in the national security domain officials suspend many common law principles, they will permit them in other domains (contracts, torts, commercial law, etc). But Sumption cautions: “If [the rule of law] is not respected across the board, it will sooner or later wither across the board.” How long this will take is unclear. So far, although authorities have degraded Hong Kong’s rule of law, key elements remain.

John P. Burns is Emeritus Professor and Honorary Professor of the University of Hong Kong where he was the former Chair Professor of Politics and Public Administration (1996-2017) and former Dean of Faculty of Social Sciences (2011-2017).