Safeguarding National Security Ordinance/Part 7

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Part 7
Enforcement Powers and Procedure in Legal Actions etc. in connection with Safeguarding National Security

Division 1—Enforcement Powers, and Other Matters in connection with Investigation

Subdivision 1—Applications may be Made to Court for Extension of Detention Period for Investigation of Offences Endangering National Security

74. Interpretation

(1) In this Subdivision—

arrested person (被捕人)—see section 75(2);

Cap. 232 (《第232章》) means the Police Force Ordinance (Cap. 232);

first detention period (首段羈留期) means the period of 48 hours referred to in section 75(2);

hospital (醫院) means—

(a) a hospital specified in Schedule 1 or 2 to the Hospital Authority Ordinance (Cap. 113); or

(b) a clinic for medical diagnosis or treatment that is maintained or managed by the Government.

(2) In calculating a period under this Subdivision, any time during which the arrested person receives medical diagnosis or treatment in hospital, or is on the way there or back, is not included, except for any time during which the person is being questioned in hospital or on the way there or back by a police officer for the purpose of obtaining evidence in respect of an offence.

75. Application of this Subdivision to persons arrested for offences endangering national security

(1) This Subdivision applies in relation to a person who—

(a) is arrested for being reasonably suspected of having committed an offence endangering national security; and

(b) is required under section 52 of Cap. 232 to be brought before a magistrate as soon as practicable.

(2) Subject to section 78(1), the person who is detained in police custody (arrested person) must be brought before a magistrate as soon as practicable, and in any event, not later than the first sitting of a Magistrates’ Court after the expiry of the period of 48 hours after the person’s arrest.

76. Applications to Court for extension of detention period

(1) A police officer of the rank of Chief Superintendent or above or a police officer authorized by that officer may, by application supported by information on oath, apply to a magistrate for an extension, or further extension, of the period of detention of an arrested person in police custody without charge.

(2) The information in support of the application—

(a) must be laid by a police officer of the rank of Chief Inspector or above; and

(b) must state—

(i) the nature of the offence;

(ii) the general nature of the evidence on which the arrested person was arrested;

(iii) what inquiries have been made by the police in relation to the offence and what further inquiries are proposed to be made by them; and

(iv) the reasons why further detention of the arrested person is necessary.

77. Court hearings of applications for extension of detention period

(1) A magistrate must not hear the application unless—

(a) the arrested person has been given a copy of the application (the information in support of the application need not be given to the arrested person); and

(b) the arrested person has been brought before the magistrate for the hearing of the application.

(2) If the arrested person is not represented by a solicitor or counsel but wishes to be so represented—

(a) the magistrate may adjourn the hearing of the application for a reasonable period to enable the person to be represented by a solicitor or counsel, and the period must not exceed—

(i) for the first application after the arrested person’s arrest—7 days after the expiry of the first detention period; and

(ii) for any subsequent application—7 days after the expiry of the last period of extension, or 14 days after the expiry of the first detention period, whichever is the earlier; and

(b) the arrested person is to be delivered to the police for detention in their custody during the adjournment.

78. Court decisions on applications for extension of detention period

(1) If the magistrate hearing the application is satisfied that there are reasonable grounds to believe that an extension (or further extension) of the period of detention of the arrested person in police custody is justified, the magistrate may authorize the period of detention of the arrested person in police custody without charge to be—

(a) for the first application after the arrested person’s arrest—extended for a period not exceeding 7 days after the expiry of the first detention period; and

(b) for any subsequent application—further extended, with each period of extension not exceeding 7 days, and with the period of extension also not causing the total period of detention of the arrested person to exceed 14 days after the expiry of the first detention period.

(2) For the purposes of subsection (1), an extension (or further extension) of the period of detention of the arrested person in police custody is justified only if—

(a) the investigation of the offence is being diligently and expeditiously conducted by the police, and cannot reasonably be completed before the date of the application; and

(b) the detention of the arrested person without charge is necessary for securing or preserving the evidence of the offence or for obtaining the evidence by questioning the person.

(3) An authorization given under subsection (1)—

(a) must be in writing; and

(b) must state—

(i) the time at which the authorization is given; and

(ii) the period for which the arrested person is delivered to the police for detention in their custody is authorized.

(4) If the magistrate authorizes, under subsection (1), an extension (or further extension) of the period of detention of the arrested person in police custody (extended period), then, unless the person is charged, the person must be discharged, in circumstances in which section 52(3) of Cap. 232 applies, on or before the expiry of the extended period.

(5) If the magistrate refuses the application under subsection (1), then, unless the arrested person is charged, the arrested person must be discharged, in circumstances in which section 52(3) of Cap. 232 applies—

(a) for the first application after the arrested person’s arrest—

(i) on or before the expiry of the first detention period; or

(ii) if the first detention period has expired when the application is refused—at the conclusion of the hearing of the application; and

(b) for any subsequent application—

(i) on or before the expiry of the last extended period; or

(ii) if the last extended period has expired when the application is refused—at the conclusion of the hearing of the application.

(6) Despite subsections (4) and (5), if, before the expiry of the period under subsection (4) or (5) (as applicable), the police officer who laid the information no longer has reasonable grounds to believe that the circumstances specified in subsection (2) exist, then, unless the arrested person is charged, the person must be discharged, in circumstances in which section 52(3) of Cap. 232 applies, immediately.

Subdivision 2—Applications may be Made to Court for Imposition of Appropriate Restrictions in relation to Consultation with Legal Representatives in View of Circumstances Endangering National Security

79. Consultation with relevant particular legal representatives may be restricted in view of circumstances endangering national security

(1) This section applies if a person is arrested for being reasonably suspected of having committed an offence endangering national security and is detained in police custody, and during the detention in police custody, the person requests to consult, or is consulting, a particular legal representative or particular legal representatives.

(2) A police officer of the rank of Chief Superintendent or above or a police officer authorized by that officer may, by ex parte application supported by information on oath, apply to a magistrate for the issue by the magistrate of a warrant in relation to the person under this section.

(3) If the magistrate hearing the application is satisfied that there are reasonable grounds to believe that the circumstances specified in subsection (4) exist, the magistrate may issue a warrant authorizing a police officer to impose the following restriction on the person—

(a) the person must not, during the person’s detention in police custody—

(i) consult the particular legal representative or legal representatives; or

(ii) if the particular legal representative or legal representatives is or are in the practice of the law in a certain Hong Kong firm or certain Hong Kong firms—consult any legal representative in the practice of the law in the firm or firms; but

(b) the person may consult any other legal representative of the person’s choosing.

(4) The circumstances are—

(a) the person’s consultation with any legal representative referred to in subsection (3)(a) (relevant legal representative) during the person’s detention in police custody will endanger national security or cause bodily harm to any person;

(b) the person has benefited from the offence, and the person’s consultation with the relevant legal representative during the person’s detention in police custody will hinder the recovery of the benefit unless the authorization is given; or

(c) the person’s consultation with the relevant legal representative during the person’s detention in police custody will pervert or obstruct the course of justice unless the authorization is given.

(5) If the information under subsection (2) is laid during the person’s consultation with a particular legal representative or particular legal representatives, then, before a magistrate makes any decision on the information—

(a) if the application that is supported by the information requests for the imposition of restrictions in relation to the person’s consultation with the particular legal representative or legal representatives—the person must suspend consultation with the particular legal representative or legal representatives, but may consult any other legal representative of the person’s choosing; or

(b) if the particular legal representative or legal representatives is or are in the practice of the law in a certain Hong Kong firm or certain Hong Kong firms, and the application requests for the imposition of restrictions in relation to the person’s consultation with any legal representative who is in the practice of the law in the firm or firms (relevant firm or firms)—the person must suspend consultation with the particular legal representative or legal representatives, and must not consult any other legal representative of the relevant firm or firms, but may consult any other legal representative of the person’s choosing.

(6) If, after the issue of the warrant and during the person’s detention in police custody, the police officer who laid the information no longer has reasonable grounds to believe that the circumstances specified in subsection (4) exist, a police officer must immediately cease to impose on the person the restriction mentioned in subsection (3).

(7) In this section—

Hong Kong firm (香港律師行) has the meaning given by section 2(1) of the Legal Practitioners Ordinance (Cap. 159);

legal representative (法律代表) means a solicitor or counsel.

80. Consultation with legal representatives may be restricted in view of circumstances endangering national security

(1) This section applies if a person is investigated for being reasonably suspected of having committed an offence endangering national security, regardless of whether the person has been arrested.

(2) A police officer of the rank of Chief Superintendent or above or a police officer authorized by that officer may, by ex parte application supported by information on oath, apply to a magistrate for the issue by the magistrate of a warrant in relation to the person under this section.

(3) If the magistrate hearing the application is satisfied that—

(a) if the person has not been arrested—

(i) there are reasonable grounds to suspect that the person has committed the offence;

(ii) there are reasonable grounds to believe that the person is about to be arrested; and

(iii) there are reasonable grounds to believe that the circumstances specified in subsection (4) exist; or

(b) if the person has been arrested—there are reasonable grounds to believe that the circumstances specified in subsection (4) exist,

the magistrate may issue a warrant authorizing a police officer to restrict the person’s consultation with a legal representative during the period of detention of the person in police custody within the period of 48 hours after the person’s arrest (specified period).

(4) The circumstances are—

(a) the person’s consultation with a legal representative during the specified period will endanger national security or cause bodily harm to any person;

(b) the person has benefited from the offence, and the person’s consultation with a legal representative during the specified period will hinder the recovery of the benefit unless the authorization is given; or

(c) the person’s consultation with a legal representative during the specified period will pervert or obstruct the course of justice unless the authorization is given.

(5) If the warrant is issued before the person is arrested, the magistrate may direct that the warrant is only in force before the date that is specified.

(6) After the issue of the warrant, if, before the expiry of the specified period, the police officer who laid the information no longer has reasonable grounds to believe that the circumstances specified in subsection (4) exist, a police officer must immediately cease to restrict the person’s consultation with a legal representative.

(7) In this section—

legal representative (法律代表) means a solicitor or counsel.

Subdivision 3—Applications may be Made to Court for Imposition of Appropriate Restrictions in relation to Persons on Bail for Prevention or Investigation of Offences Endangering National Security

81. Interpretation

In this Subdivision—

movement restriction order (行動限制令)—see section 83(1);

person on bail (獲保釋人)—see section 82;

recognizance (擔保) means a recognizance entered into in accordance with section 52(3) of the Police Force Ordinance (Cap. 232);

specified (指明) means specified in a movement restriction order.

82. Application of this Subdivision to persons arrested for offences endangering national security and on bail If—

(a) a person is arrested for being reasonably suspected of having committed an offence endangering national security; and

(b) the person is about to be, or has been, discharged (whether or not a recognizance is required) by the police,

this Subdivision applies in relation to the person (person on bail).

83. Applications to Court for movement restriction orders in relation to period of bail

(1) A police officer of the rank of Chief Superintendent or above or a police officer authorized by that officer may, by ex parte application supported by information on oath, apply to a magistrate for the making by the magistrate of an order (movement restriction order) directing that a person on bail must comply with the specified requirements and the specified conditions imposed in relation to those requirements.

(2) The magistrate may specify one or more of the following requirements—

(a) the following requirements on the place of residence of the person on bail—

(i) the person on bail must reside in the specified place during the specified period;

(ii) the person on bail must report to the police by the specified deadline information as to the identity of any person who also resides in the specified place;

(iii) the person on bail must remain in the specified place during the specified time;

(b) the person on bail must not enter the specified area or place during the specified period, or may only enter the area or place if the specified conditions are met;

(c) the person on bail must not, by any means or through any person, associate or communicate with the specified person during the specified period, or may only associate or communicate with the specified person if the specified conditions are met;

(d) the person on bail must report to the police at the specified police station at the specified time.

(3) The information in support of the application—

(a) must be laid by a police officer of the rank of Chief Inspector or above; and

(b) must state—

(i) the nature of the offence;

(ii) the general nature of the evidence on which the person on bail was arrested;

(iii) what inquiries have been made by the police in relation to the offence and what further inquiries are proposed to be made by them; and

(iv) the reasons why imposing any of the requirements mentioned in subsection (2) on the person on bail is necessary.

84. Court may make movement restriction orders

(1) If the magistrate hearing the application is satisfied that there are reasonable grounds to believe that the circumstances specified in subsection (2) exist, the magistrate may make a movement restriction order in relation to a person on bail.

(2) The circumstances are—

(a) the person on bail will not report to the police in accordance with the conditions specified by the police unless the person on bail is subject to the requirements requested to be imposed on the person on bail in the application (relevant requirements);

(b) there will be perversion or obstruction of the course of justice unless the person on bail is subject to the relevant requirements; or

(c) national security will be endangered unless the person on bail is subject to the relevant requirements.

(3) A movement restriction order—

(a) must be in writing; and

(b) must state the requirements imposed on the person on bail and the conditions imposed in relation to the requirements.

(4) A movement restriction order is valid for 3 months, and the validity period must not begin before the date on which the movement restriction order is served under subsection (5).

(5) A movement restriction order must be served personally on the person on bail.

(6) A magistrate may, on application by a police officer mentioned in section 83(1) (relevant officer), extend (or further extend) the validity period of a movement restriction order made in relation to a person on bail, with each period of extension being 1 month, if the magistrate is satisfied that there are reasonable grounds to believe that—

(a) a circumstance specified in subsection (2) remains in existence; and

(b) the investigation of the offence is being diligently and expeditiously conducted by the police, and cannot reasonably be completed before the date of the application.

(7) A magistrate may, on the application by a relevant officer or a person on bail, vary or discharge a movement restriction order made in relation to the person on bail.

(8) A magistrate must not grant an application made under subsection (7) unless the magistrate is satisfied that, in all the circumstances of the case, it is reasonable and necessary, and would not be contrary to the interests of national security, to do so.

85. Review of movement restriction orders

(1) If a magistrate refuses an application made by a person on bail under section 84(7), the person on bail may make an application to a judge of the Court of First Instance for the first-mentioned application to be granted (review application).

(2) The judge of the Court of First Instance must not grant the review application unless the judge is satisfied that, in all the circumstances of the case, it is reasonable and necessary, and would not be contrary to the interests of national security, to do so.

(3) Subject to subsection (2), the judge of the Court of First Instance may, by order, confirm, vary or revoke the magistrate’s decision and may make any other order in relation to relevant matters as the judge of the Court of First Instance considers just.

86. Contravention of movement restriction orders

If a person on bail, without reasonable excuse, contravenes—

(a) any requirement in a movement restriction order made in relation to the person; or

(b) any condition imposed in relation to the requirement,

the person commits an offence and is liable on conviction on indictment to imprisonment for 1 year.

Subdivision 4—Miscellaneous Provisions and Offences in connection with Investigation

87. Applications under this Division to be heard in closed court in general

(1) An application under this Division must be heard in a closed court.

(2) Despite subsection (1), the judge of the Court of First Instance or the magistrate (as applicable) hearing the application may, either on his or her own motion or on application by any party to the hearing, order the application to be heard in open court.

(3) However, the judge of the Court of First Instance or the magistrate concerned may only make an order under subsection (2) on being satisfied that doing so is necessary in the interests of justice and would not be contrary to the interests of national security.

88. No prejudicing of investigation of offences endangering national security

If a person knows or suspects that an investigation of an offence endangering national security is being conducted—

(a) the person—

(i) with intent to prejudice the investigation; or

(ii) being reckless as to whether the investigation will be prejudiced,

without reasonable excuse or lawful authority, makes any disclosure; or

(b) the person—

(i) knowing or suspecting that any material is likely to be relevant to the investigation; and

(ii) with intent to conceal the facts disclosed by the material from persons conducting the investigation,

without reasonable excuse, falsifies, conceals, destroys or otherwise disposes of the material, or causes or permits the material to be falsified, concealed, destroyed or otherwise disposed of,

the person commits an offence and is liable on conviction on indictment to imprisonment for 7 years.

Division 2—Absconders in respect of Offences Endangering National Security

Subdivision 1—Specification of Relevant Absconders

89. Power of Secretary for Security to specify an absconder for application of certain measures against the absconder

(1) If the Secretary for Security reasonably believes that it is necessary for safeguarding national security to specify a person to which this subsection applies for the purposes of subsection (4), the Secretary for Security may, by notice published in the Gazette, specify the person for the purposes of that subsection.

(2) Subsection (1) applies to a person if—

(a) a Court has issued, in relation to an offence endangering national security, a warrant to arrest the person;

(b) reasonable steps have been taken to inform the person of the issue of the warrant, or the Secretary for Security reasonably believes that the person knew of the issue of the warrant;

(c) the person has not been brought before a judge or magistrate (as the case may be); and

(d) the Secretary for Security reasonably believes that the person is not in the HKSAR.

(3) The Secretary for Security must revoke a specification made in relation to a person under subsection (1) if—

(a) the warrant mentioned in subsection (2)(a) in respect of the person has been revoked; or

(b) the person has been brought before a judge or magistrate (as the case may be).

(4) If the Secretary for Security specifies a person under subsection (1), the Secretary for Security may, during the period within which the specification is in force, by notice published in the Gazette, further specify that any one or more provisions in Subdivision 2 of this Division that the Secretary for Security reasonably considers to be suitable in all the circumstances of the case apply in relation to the person.

(5) The Secretary for Security may, by notice published in the Gazette, vary or revoke a specification made under subsection (4).

Subdivision 2—Measures that may Apply against Relevant Absconders

90. Prohibition against making available funds etc. or dealing with funds etc.

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) Except under the authority of a licence granted under section 97, a person must not—

(a) make available, directly or indirectly, any funds or other financial assets or economic resources to, or for the benefit of, a relevant absconder; or

(b) deal with, directly or indirectly, any funds or other financial assets or economic resources belonging to, or owned or controlled by, a relevant absconder.

(3) A person who contravenes subsection (2) commits an offence and is liable on conviction on indictment to imprisonment for 7 years.

(4) It is a defence for a person charged with an offence under subsection (3) to establish that the person did not know and had no reason to believe—

(a) for a contravention of subsection (2)(a)—that the funds or other financial assets or economic resources concerned were, or were to be, made available to, or for the benefit of, a relevant absconder; or

(b) for a contravention of subsection (2)(b)—that the person was dealing with the funds or other financial assets or economic resources belonging to, or owned or controlled by, a relevant absconder.

(5) A person is taken to have established a matter that needs to be established for a defence under subsection (4) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(6) A person is not to be regarded as having contravened subsection (2) by reason only of having credited any of the following to an account belonging to, or directly or indirectly owned or controlled by, a relevant absconder—

(a) interest or other earnings due on that account;

(b) payment due under contracts, agreements or obligations that arose before the date on which the relevant absconder became a relevant absconder.

(7) In this section—

deal with (處理) means—

(a) in respect of funds—

(i) use, alter, move, allow access to or transfer;

(ii) deal with in any other way that would result in any change in volume, amount, location, ownership, possession, character or destination; or

(iii) make any other change that would enable use, including portfolio management; and

(b) in respect of other financial assets or economic resources—use to obtain funds, goods or services in any way, including by selling, hiring out or mortgaging the assets or resources;

economic resources (經濟資源) means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but can be used to obtain funds, goods or services;

funds (資金) includes—

(a) gold coin, gold bullion, cash, cheques, claims on money, drafts, money orders and other payment instruments;

(b) deposits with financial institutions or other entities, balances on accounts, debts and debt obligations;

(c) securities and debt instruments (including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures, debenture stock and derivatives contracts);

(d) interest, dividends or other income on or value accruing from or generated by property;

(e) credit, rights of set-off, guarantees, performance bonds or other financial commitments;

(f) letters of credit, bills of lading and bills of sale;

(g) documents evidencing an interest in funds or financial resources; and

(h) any other instrument of export financing.

91. Prohibition against certain activities in connection with immovable property

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) Except under the authority of a licence granted under section 97, a person must not—

(a) lease, or otherwise make available, immovable property, directly or indirectly, to a relevant absconder; or

(b) lease immovable property, directly or indirectly, from a relevant absconder.

(3) A person who contravenes subsection (2) commits an offence and is liable on conviction on indictment to imprisonment for 7 years.

(4) It is a defence for a person charged with an offence under subsection (3) to establish that the person did not know and had no reason to believe—

(a) for a contravention of subsection (2)(a)—that the immovable property concerned was leased, or otherwise made available, to a relevant absconder; or

(b) for a contravention of subsection (2)(b)—that the immovable property concerned was leased from a relevant absconder.

(5) A person is taken to have established a matter that needs to be established for a defence under subsection (4) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(6) If a person does an act mentioned in subsection (2) under a contract, agreement or obligation that arose before the date on which the relevant absconder became a relevant absconder, the person is not to be regarded as having contravened that subsection by reason only of that act.

92. Prohibition in connection with joint ventures or partnerships with relevant absconders

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) Except under the authority of a licence granted under section 97, a person must not—

(a) establish a joint venture, partnership or any like relationship with a relevant absconder; or

(b) invest in such a joint venture, partnership or any like relationship.

(3) A person who contravenes subsection (2) commits an offence and is liable on conviction on indictment to imprisonment for 7 years.

(4) It is a defence for a person charged with an offence under subsection (3) to establish that the person did not know and had no reason to believe that the joint venture, partnership or like relationship concerned was one with a relevant absconder.

(5) A person is taken to have established a matter that needs to be established for a defence under subsection (4) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(6) If a person does an act mentioned in subsection (2) under a contract, agreement or obligation that arose before the date on which the relevant absconder became a relevant absconder, the person is not to be regarded as having contravened that subsection by reason only of that act.

93. Suspension of qualification to practise

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) If, at any time during the period within which the specification is in force (material time), a relevant absconder holds a qualification to practise in a profession under any Ordinance, the qualification to practise is, for all purposes, to be regarded as suspended at the material time (regardless of whether the Ordinance itself provides for the suspension (however described) of the qualification to practise).

(3) If, under any Ordinance, a person is required to keep a register (however described) in relation to the qualification to practise, the person must from time to time update the register in view of the operation of subsection (2).

(4) Also, if, under any Ordinance, had the qualification to practise been suspended (however described) under the Ordinance, a provision would apply accordingly, then, where the qualification to practise is regarded as suspended under subsection (2), the provision also applies, with necessary modifications, accordingly as if the qualification to practise is suspended (however described) under the Ordinance.

(5) In subsection (4), a reference to any provision does not include a provision that concerns an appeal or review against the suspension of the qualification to practise.

(6) This section does not affect any power that a person may exercise under any Ordinance in relation to a relevant absconder.

94. Permission or registration for carrying on business or for employment not in effect temporarily

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) If, at any time during the period within which the specification is in force (material time), there is in effect, in relation to a relevant absconder (but not in effect in relation to the relevant absconder together with any other person)—

(a) a permission (however described, and given in whatever manner) under any Ordinance; or

(b) a registration (however described, and carried out in whatever manner) under any Ordinance,

that is necessary for the relevant absconder to carry on any business or to be employed for any work, the permission or registration is, for all purposes, to be regarded as being not in effect temporarily at the material time (regardless of whether the Ordinance itself provides for the permission or registration being not in effect temporarily (however described)).

(3) If, under any Ordinance, a person is required to keep a register (however described) in relation to the permission or registration, the person must from time to time update the register in view of the operation of subsection (2).

(4) Also, if, under any Ordinance, had the permission or registration been not in effect temporarily (however described) under the Ordinance, a provision would apply accordingly, then, where the permission or registration is regarded as being not in effect temporarily under subsection (2), the provision also applies, with necessary modifications, accordingly as if the permission or registration is not in effect temporarily (however described) under the Ordinance.

(5) In subsection (4), a reference to any provision does not include a provision that concerns an appeal or review against the permission or registration being not in effect temporarily.

(6) This section does not affect any power that a person may exercise under any Ordinance in relation to a relevant absconder, or in relation to the business carried on by the relevant absconder or the work for which the relevant absconder is employed.

95. Temporary removal from office of director

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) If, at any time during the period within which the specification is in force (material time), a relevant absconder holds the office of director of any company, the relevant absconder is, for all purposes, to be regarded as being removed temporarily from that office of director at the material time, and accordingly, the relevant absconder must not directly or indirectly take part or be concerned in the management of the company temporarily.

(3) If, under any Ordinance, a person is required to keep a register (however described) in relation to that office of director, the person must from time to time update the register in view of the operation of subsection (2).

(4) This section does not affect—

(a) any power that a person may exercise under the law of the HKSAR in relation to a relevant absconder; or

(b) any power that a person may exercise under the constitution, rules or other governing documents by which the company is constituted (or according to which the company operates) in relation to a relevant absconder.

(5) In this section—

company (公司) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622);

director (董事) has the meaning given by section 2(1) of the Companies Ordinance (Cap. 622).

96. Cancellation of HKSAR passports etc.

(1) If it is specified under section 89(4) (including by virtue of section 89(5)) that this section applies in relation to a person, the person is a relevant absconder for the purposes of this section during the period within which the specification is in force.

(2) If—

(a) a relevant absconder holds a HKSAR passport; and

(b) the passport is valid immediately before the specification is made,

the passport is, for all purposes, to be regarded as being cancelled at the time when the specification is made, and accordingly, the Director of Immigration may take possession of the passport.

(3) If an application for a HKSAR passport is made by a relevant absconder, the application is, for the purposes of section 3(1) of the Hong Kong Special Administrative Region Passports Ordinance (Cap. 539) and all other purposes, to be regarded as being invalid.

(4) In this section—

HKSAR passport (特區護照) means a passport issued by the Director of Immigration under section 3 of the Hong Kong Special Administrative Region Passports Ordinance (Cap. 539).

Subdivision 3—Licences

97. Grant of licences

(1) The Secretary for Security may, on application, grant a licence for doing an act prohibited by section 90, 91 or 92.

(2) The Secretary for Security must not grant a licence under subsection (1) unless the Secretary for Security is satisfied that, in all the circumstances of the case, it is reasonable and necessary, and would not be contrary to the interests of national security, to do so.

98. Provision of false or misleading information or documents for purpose of obtaining licences

(1) A person who, for the purpose of obtaining a licence, makes any statement or provides or produces any information or document that the person knows to be false or misleading in a material particular commits an offence and is liable on conviction on indictment to imprisonment for 3 years.

(2) A person who, for the purpose of obtaining a licence, recklessly makes any statement or provides or produces any information or document that is false or misleading in a material particular commits an offence and is liable on conviction on indictment to imprisonment for 3 years.

Division 3—Procedure in Legal Actions: General Provisions

99. Application of procedure under HK National Security Law to offences under this Ordinance

To avoid doubt, any case in connection with an offence under this Ordinance is a case mentioned in Article 41 of the HK National Security Law, and the procedure under Chapter IV of the HK National Security Law applies to such a case.

100. Cases concerning national security to be adjudicated by designated judges

(1) If a case adjudicated by a Court is a case concerning national security by virtue of section 3(2)(b), the case must be adjudicated by a designated judge.

(2) Subsection (1) does not limit the application of any other enactment to any case to the extent that the other enactment is not inconsistent with that subsection.

Division 4—Criminal Procedure for Cases in connection with Offences Endangering National Security

101. Application

This Division applies to a case in connection with an offence endangering national security, regardless of whether the case is also in connection with any other offence.

102. Interpretation

In this Division—

Cap. 227 (《第227章》) means the Magistrates Ordinance (Cap. 227);

return day (提訊日) has the meaning given by section 71A of Cap. 227.

103. Remand during committal proceedings

In applying section 79(1) of Cap. 227, the requirement in that section for remand not to exceed 8 clear days (and the exception to the requirement) must be disregarded.

104. Appointment of return day

(1) Subsection (2) applies in place of section 80A(3) of Cap. 227.

(2) The return day must not, unless the prosecutor and the accused consent or the magistrate, on reasonable cause being shown, determines otherwise, be less than 10 days nor more than 28 days from the day on which the return day is appointed.

105. Translations of documents

(1) Subsection (2) applies in place of section 80B(2)(c) and (3) of Cap. 227.

(2) Unless the magistrate, on application by the accused, orders, for the purposes of section 80B(1) of Cap. 227, that a statement of a witness, or a documentary exhibit, of which a copy is served under that section must be accompanied by the following translation—

(a) if the statement or documentary exhibit is written in a language other than English—an English translation;

(b) if the statement or documentary exhibit is written in a language other than Chinese—a Chinese translation,

the statement or documentary exhibit need not be accompanied by the translation.

(3) In deciding whether to make an order under subsection (2), the magistrate must consider the need for the case to be handled in a fair and timely manner.

106. Preliminary inquiries dispensed with

(1) Subsection (2) applies in place of sections 80C, 81, 81A, 82, 83, 84 and 85 of Cap. 227.

(2) When the accused appears or is brought before a magistrate on the return day—

(a) the prosecutor must, if the requirements of section 80B(1) of Cap. 227 are satisfied, hand into court the originals of the documents referred to in that section; and

(b) the magistrate must, after an application is made by or on behalf of the Secretary for Justice, take the action under section 80C(4) of Cap. 227, and if the accused then pleads not guilty to the charge, the magistrate must order that the accused stand committed for trial in the Court of First Instance, and inform the accused of this fact or cause the accused to be informed of this fact.

(3) Accordingly—

(a) in applying section 80A of Cap. 227—

(i) subsections (4)(c) and (d) of that section must be disregarded; and

(ii) subsection (4)(e) of that section is to be read as requiring that the magistrate must, on first appointing the return day, inform the accused of the matters mentioned in subsection (4) of this section;

(b) in applying section 81B of Cap. 227—

(i) a reference to section 80C(4)(a) or 82(1) of Cap. 227 in subsection (1) of that section 81B is to be read as a reference to subsection (2)(b) of this section;

(ii) subsection (1) of that section 81B is to be read as requiring that the magistrate must inform the accused of the matters mentioned in subsection (4) of this section in the circumstances described in that subsection (1); and

(iii) the reference to “where the accused pleads guilty in proceedings under section 80C,” in subsection (2)(a) of that section 81B must be disregarded;

(c) in applying section 85A of Cap. 227, a reference to section 80C(4) or 85(2) of Cap. 227 in subsection (1) of that section 85A is to be read as a reference to subsection (2)(b) of this section;

(d) in applying section 86 of Cap. 227—

(i) the reference to section 80C(4) of Cap. 227 in subsection (1)(b) of that section 86 is to be read as a reference to subsection (2)(b) of this section; and

(ii) the reference to section 80C(1) of Cap. 227 in subsection (1)(b) of that section 86 is to be read as a reference to subsection (2)(a) of this section;

(e) in applying section 33 of the Crimes Ordinance (Cap. 200), the reference to section 80C(1) of Cap. 227 in paragraph (a) of that section 33 is to be read as a reference to subsection (2)(a) of this section;

(f) in applying section 14 of the Criminal Procedure Ordinance (Cap. 221) (Cap. 221), the reference to section 80C(4) of Cap. 227 in subsection (1)(a) of that section 14 is to be read as a reference to subsection (2)(b) of this section;

(g) in applying section 16 of Cap. 221—

(i) the reference to section 80C(4) of Cap. 227 in subsection (1) of that section 16 is to be read as a reference to subsection (2)(b) of this section; and

(ii) the reference to section 80C(1) of Cap. 227 in subsection (1) of that section 16 is to be read as a reference to subsection (2)(a) of this section; and

(h) if an application is made under section 77A of the District Court Ordinance (Cap. 336) for the proceedings to be transferred to the Court of First Instance, the following must be disregarded in applying that section—

(i) the requirement in subsection (4) of that section that the judge may only make an order allowing the application subject to subsection (5) of that section;

(ii) subsections (5) and (6) of that section; and

(iii) the condition in subsection (7) of that section that the accused elects under subsection (5) of that section to have a preliminary inquiry.

(4) For the purposes of subsection (3)(a)(ii) and (b)(ii), the matters are that if the accused pleads not guilty to the charge, the court will have the accused committed for trial in the Court of First Instance, and if the accused pleads guilty to the charge, the court will have the accused committed to the Court of First Instance for sentence on that charge.

107. Accused not to apply for discharge without hearing after committal

(1) If a certificate is issued in relation to a case under Article 46 of the HK National Security Law, section 16 of the Criminal Procedure Ordinance (Cap. 221) has no effect in relation to the case.

(2) Accordingly, in applying section 85A of Cap. 227, subsection (1)(e) of that section must be disregarded.

(3) This section does not limit the application of any other provision of this Division to the case to the extent that the other provision of this Division is not inconsistent with this section.

108. Lifting of restrictions on reports of committal proceedings

(1) This section applies in place of section 87A(2) of Cap. 227.

(2) Despite section 87A(1) of Cap. 227, a magistrate may, on application by the prosecution or the accused, order that the section does not apply to relevant reports of the committal proceedings.

(3) However, the magistrate may only make an order under subsection (2) on being satisfied that doing so is necessary in the interests of justice and would not be contrary to the interests of national security.

(4) An order made under subsection (2) must be entered in the Magistrate’s Case Register.

(5) If there are more than one accused in the case, the reference to the accused in subsection (2) is a reference to one of the accused.

(6) For the purposes of sections 86(1)(f) and 87A(4) and (7) of Cap. 227, an order made under subsection (2) is to be regarded as an order made under section 87A(2) of Cap. 227.

Division 5—Penalties for Inchoate Offences

109. Penalty for conspiracy, incitement or attempt to commit offence under HK National Security Law

To avoid doubt, despite any other Ordinance—

(a) if a person is convicted of conspiracy to commit any offence under the HK National Security Law (NSL offence), any provision concerning the penalty for the NSL offence under the HK National Security Law also applies to the penalty for the conspiracy;

(b) if a person is convicted of incitement to commit any NSL offence, any provision concerning the penalty for the NSL offence under the HK National Security Law also applies to the penalty for the incitement unless the HK National Security Law itself provides for the penalty for incitement to commit the NSL offence; and

(c) if a person is convicted of attempt to commit any NSL offence, any provision concerning the penalty for the NSL offence under the HK National Security Law also applies to the penalty for the attempt.