Taking a ‘Common Law’ Approach to National Law: National Security Adjudication and Sentencing in Hong Kong after ‘47 Democrats’

In June 2020, the National Security Law took effect in Hong Kong. A sui generis piece of legislation which was directly promulgated by Beijing in the jurisdiction, its implications on constitutional and criminal law have been the focus of academic commentary. This comment looks at the latest development in judicial application of this law in HKSAR v Ng Ching-Hang , which dealt with ‘conspiracy to commit subversion’ for the first time. Though a first-instance decision, its verdict and sentencing judgments are enlightening as to how judges navigate the increasingly complex landscape of nationally and domestically enacted security legislation. While the court insists upon using ‘common law’ methods to interpret and apply the law and its penalties, the judgments reveal an approach which prioritises national security over fundamental common law values such as legal certainty and separation of powers. The implications of this ‘national security first’ approach for future jurisprudence are discussed.