THE ADVOCATE 187
VOL. 80 PART 2 MARCH 2022
To strengthen its oversight of national security matters in the HKSAR, the
CPG established the Office for Safeguarding National Security of the Central
People’s Government in the HKSAR, staffed by people from national security
authorities in the PRC.13
The Hong Kong Police Force established a department for safeguarding
national security with law enforcement powers. The head of the department
is appointed by the CE after obtaining the opinion of the CPG’s Office
for Safeguarding National Security in the HKSAR.14 The Secretary for Justice
is the head of the Department of Justice, which established a specialized
division responsible for the prosecution of NSL offences.15 Prosecutors
in the division are appointed by the Secretary after obtaining the Committee’s
consent. The head of the division is appointed by the CE after obtaining
the opinion of the CPG’s Office for Safeguarding National Security.16
It would be naïve to think that the CE and the Committee will not have
some influence on the Commissioner of Police’s discretion to investigate
NSL offences or on the Secretary for Justice’s discretion to prosecute NSL
offences, or will not affect the common law independence of police17 and
prosecutors.18
JUDICIAL INDEPENDENCE
As a former British colony, Hong Kong embraces the common law principle
of judicial independence. After China’s resumption of sovereignty over
Hong Kong on July 1, 1997, the continuation of the common law is guaranteed
by art. 8 of the Basic Law.19 Judicial independence is guaranteed by art.
85 of the Basic Law—“The courts of the HKSAR shall exercise judicial power
independently, free from interference”—and by art. 10 of Hong Kong’s Bill
of Rights: “everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law”. Because of
the NSL’s special constitutional status, these articles cannot override the
NSL.
In R. v. Beauregard,20 Chief Justice Dickson said that, at its core, judicial
independence is the liberty of individual judges to hear and decide cases
without interference from all other participants in the justice system,
including the executive, and emphasized that particular care must be taken
to preserve the judiciary’s independence from the executive because the
executive is often a litigant before the courts.
In Kearney v. Her Majesty’s Advocate,21 Lord Carswell explained the importance
of judicial independence: “Independence of a tribunal is required in
order that the public, seeing this, may feel confidence in its ability to decide
cases without any influence from the Executive being brought to bear or