Comparative Study: National Security Law Prosecutions In Hong Kong And Mainland Criminal Practice
I. Hong Kong – National Security Law Prosecutions
1️⃣ Jimmy Lai (2020–2023)
Facts:
Jimmy Lai, founder of Apple Daily, was arrested under Hong Kong’s NSL for alleged collusion with foreign forces.
Charges included "colluding with foreign or external forces to endanger national security."
Legal Issues:
Scope of NSL: Does advocacy or media reporting count as collusion?
Right to fair trial and bail: NSL restricts bail more strictly than standard criminal law.
Judgment / Outcome:
Lai was denied bail multiple times.
As of 2023, trial proceedings were ongoing under heavy restrictions.
Significance:
Illustrates how NSL empowers authorities to arrest and detain without typical Hong Kong criminal safeguards.
Compared to mainland China, courts still allow some procedural rights, though limited.
2️⃣ Tam Tak-chi (2021)
Facts:
Activist Tam Tak-chi charged with inciting secession and subversion under NSL.
Allegedly called for international sanctions against Hong Kong.
Legal Issues:
Whether speech and assembly constitute threats to national security.
Jurisdictional reach: Hong Kong NSL allows prosecution of acts inside or outside Hong Kong that endanger security.
Judgment / Outcome:
Convicted in 2022, sentenced to 40 months imprisonment.
Appeal was limited due to NSL procedural rules.
Significance:
NSL broadens criminal liability to speech, showing contrast with common law principles.
Highlights preventive focus of NSL, unlike typical mainland law which often requires concrete harm.
3️⃣ Tong Ying-kit (2020)
Facts:
First person convicted under NSL.
Charged with inciting secession and terrorism for allegedly riding a motorbike into police while displaying a protest flag.
Legal Issues:
Whether single act with symbolic protest constitutes terrorism or secession.
Burden of proof: NSL allows prosecutors broader interpretation.
Judgment / Outcome:
Convicted and sentenced to 9 years imprisonment in 2021.
Significance:
Landmark case demonstrating NSL’s low threshold for criminalization of protest.
Emphasizes how Hong Kong courts implement NSL, balancing common law traditions with national security mandates.
II. Mainland China – Criminal Practice in National Security Cases
4️⃣ Xu Zhiyong (2013–2020)
Facts:
Prominent activist and legal scholar Xu Zhiyong was arrested multiple times for “endangering state security” and “gathering a crowd to disrupt public order.”
Legal Issues:
Broad and vaguely defined national security crimes under the Criminal Law and NSL-equivalent provisions.
Minimal procedural safeguards, limited access to counsel.
Judgment / Outcome:
Sentenced to 4 years in 2020 for disrupting public order.
Subsequent detentions occurred with limited transparency.
Significance:
Mainland approach prioritizes state security over individual rights.
Compared to Hong Kong NSL, judicial review is weaker and trials are often closed.
5️⃣ Gui Minhai Case (Sweden-China Context)
Facts:
Gui Minhai, a Swedish citizen and book publisher, was abducted from Thailand in 2015 and charged in China for “illegally providing intelligence overseas” and “endangering state security.”
Legal Issues:
Extraterritorial enforcement of national security laws.
Secret detention and restricted legal access.
Judgment / Outcome:
Sentenced to 10 years in 2020, with limited transparency and international protest.
Significance:
Mainland law allows extraterritorial application and opaque procedures.
Shows contrast with Hong Kong NSL where trials are nominally public and subject to procedural rules.
6️⃣ Hong Kong vs Mainland: Cross-Border NSL Enforcement
Case Reference: 2021 NSL interpretation by NPCSC:
Mainland law allows extradition of fugitives from Hong Kong or abroad.
Cases like Tong Ying-kit or Jimmy Lai remain in Hong Kong, but the interpretation grants mainland-style flexibility.
Significance:
Hong Kong courts are nominally independent but now incorporate elements of mainland practice.
Mainland criminal practice emphasizes state security and secrecy, while Hong Kong retains some procedural transparency.
✅ Comparative Observations
| Aspect | Hong Kong NSL | Mainland China Criminal Practice |
|---|---|---|
| Legal basis | NSL (2020), derived from NPCSC | Criminal Law + NSL-equivalent statutes |
| Scope | Collusion, secession, subversion, terrorism | Endangering state, subversion, espionage |
| Procedural safeguards | Partial common law protections, some appeals | Minimal, often secret trials, restricted counsel |
| Bail & detention | Strict, bail rarely granted in NSL cases | Pretrial detention common, bail limited |
| Public scrutiny | Some transparency in courts | Trials often closed, state-controlled media |
| Extraterritorial reach | Limited but increasing | Explicit and broad, can abduct overseas individuals |
| First landmark conviction | Tong Ying-kit (2020) | Xu Zhiyong, Gui Minhai |
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