What is the UK National Security Act used against 3 men, including 2 Hongkongers, in London and how does it compare with domestic legislation?

Among the new offences were three espionage charges drawn up to replace a series of Official Secrets Acts.

The new offences relate to obtaining or disclosing protected information or trade secrets and assisting a foreign intelligence service.

The UK Home Office said in a fact sheet last year that the offence of assisting a foreign intelligence service would reduce the ability of overseas agencies to carry out “a range of hostile activities against the UK, extending beyond traditional espionage activity”.

Officials said the foreign interference offences were designed to boost the power of police and intelligence agencies to counter state-sponsored actions against the country, as existing criminal charges such as bribery or fraud did not match the scale of the harm caused.

Jonathan Sullivan, an associate professor at the University of Nottingham, said national security had become a major concern for the British government – particularly in its relationship with China.

“This reflects the growing negativity about China and the securitisation of many aspects of the relationship,” Sullivan said.

“At this point, it is difficult to conduct any kind of interaction with China without it being seen through a security lens.”

New Scotland Yard, the headquarters of London’s Metropolitan Police, which investigated spying allegations leading to three men, including two Hongkongers, appearing in court. Photo: EPA-EFE

What charges do the trio face?

Bill Yuen Chung-biu, an office manager at the Hong Kong Economic and Trade Office in London, Peter Wai Chi-leung and Matthew Trickett were charged with assisting a foreign intelligence service and with foreign interference at Westminster Magistrates’ Court in the British capital on Monday.

It is understood that the three are accused of breaking the law by taking part in “information gathering, surveillance and acts of deception that were likely to materially assist a foreign intelligence service carrying out UK-related activities” between December 20, 2023, and May 2 this year.

It is also alleged they committed the foreign interference offence by taking part in prohibited conduct – forcing entry into a UK home and being reckless as to whether the act would have an interference effect – on May 1.

The National Security Act says an individual commits the offence of assisting a foreign intelligence service if they knowingly engage in conduct that is likely to “materially assist” overseas agencies.

An accused commits the offence of foreign interference by engaging in “prohibited conduct” for, or on behalf of, a foreign power and being reckless as to whether their actions would have an interference effect.

People convicted on both charges face a maximum of 14 years in prison, or a fine or both.

The three men were released on bail.

How does the Act stack up against Hong Kong’s laws?

Hong Kong’s Safeguarding National Security Ordinance, which came into force in March, also criminalises “external interference endangering national security”, as well as “taking part in, or supporting an external intelligence organisation”.

Simon Young Ngai-man, a law professor at the University of Hong Kong (HKU), said the external interference offences in the city and the UK were similar, as the local one was modelled on its British counterpart.

Hong Kong’s external interference offence says that an individual “with intent to bring about an interference effect, collaborates with an external force” using improper means could be liable to 14 years behind bars.

But Young said the British offence of assisting a foreign intelligence organisation was “somewhat wider” than the Hong Kong equivalent because it did not limit the kind of conduct involved.

Metropolitan Police officers walk past the Palace of Westminster, the home of Britain’s Houses of Parliament. Photo: AFP

The UK Act also says that someone commits an offence if they engage in “conduct of any kind” intended, or likely to materially assist, a foreign intelligence service in carrying out activity against Britain.

Hong Kong’s Safeguarding National Security Ordinance rules an individual would be liable if their action was found to be a “prohibited act”.

The requirements for a “prohibited act” include becoming a member of an external intelligence organisation, accepting a task or training from such organisation or their representative, offering “substantial support” such as financial assistance, information or recruitment, or accepting “substantial advantage” from such groups.

The penalty for support of a foreign intelligence organisation is 10 to 14 years in prison, depending on whether a person had knowingly threatened national security or not.

The Hong Kong offence, however, also includes “recklessness”, where someone could be prosecuted for their actions if they had been “reckless as to whether national security would be endangered”.

That element is not contained in the UK legislation.

The three men were released on bail, but the city’s Safeguarding National Security Ordinance gives additional powers to police over the granting of bail to people arrested for national security offences.

The force can apply for a movement restriction order from the court when granting bail.

A defendant subject to a movement restriction order may be ordered to live in a specific place, report to police and be barred from entering designated premises or communicating with particular people.

Trials under the 2020 Beijing-imposed national security legislation in Hong Kong do not have a jury, unlike the common law tradition of juries in criminal trials.

Judges presiding over national security trials in the city are drawn from a list of authorised candidates hand-picked by the city leader.

What defines a foreign intelligence organisation?

Hong Kong does not operate an official intelligence agency, but police officers have the power to collect information on people suspected of endangering national security.

Legal academics told the Post the definition of “foreign intelligence service” would be crucial to establishing a case against the three defendants.

HKU’s Young said the prosecution would need to prove which foreign intelligence service had been involved.

“Hong Kong is a foreign power, not a foreign intelligence service,” he said.

“For the Hong Kong Economic and Trade Office to be a foreign intelligence service, it would need to be shown to have a function of carrying out intelligence activities for a foreign power.”

Young, a specialist in criminal law, said it would be “surprising” if British authorities alleged that the London Economic and Trade Office carried out intelligence work for a foreign power.

Thomas Kellogg, executive director of the Centre for Asian Law at Georgetown University in Washington, warned that any involvement by Hong Kong national security officials in the three men’s alleged actions would bolster the case against them.

“If Hong Kong national security or intelligence officials are involved in directing the actions of these three men, then indeed national security charges would be appropriate,” Kellogg said.


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