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Friday, Nov 27, 2020

Hong Kong police’s sweeping new powers include warrant-free raids and ordering internet firms such as Facebook to remove content

Police can raid premises without a court warrant, seize equipment from social media giants and demand information from political groups operating outside city. Failure to comply with new regulations decided at meeting of Committee for Safeguarding National Security will lead to HK$100,000 fine, up to two years in jail

Hong Kong police can raid premises without a court warrant, order internet firms to remove content or seize their equipment, and demand information from political groups operating outside the city under sweeping new powers granted by the national security law.

Failure to comply will result in a fine of HK$100,000 (US$12,900) and up to two years’ imprisonment, according to seven new implementation regulations for enforcement agencies gazetted on Monday.

The new regulations were decided at the first meeting of the Committee for Safeguarding National Security, chaired by Chief Executive Carrie Lam Cheng Yuet-ngor, with the city’s police, security, finance, justice and immigration chiefs as members.
Beijing’s top official in Hong Kong, Luo Huining, who is director of the central government’s liaison office in the city, also attended in his capacity as Lam’s national security adviser.

The new body was set up in Hong Kong to oversee the enforcement of the controversial legislation which prohibits acts of secession, subversion, terrorism and collusion with foreign and external forces to endanger national security. The maximum sentence for breaking the law is life imprisonment.

Under the new implementation rules, police are required to apply to a magistrate for a warrant to enter and search any premises for evidence, but “under exceptional circumstances, a police officer not below the rank of assistant commissioner of police may authorise his officers to enter the relevant place and search for evidence without a warrant”.

On restricting suspects under investigation from leaving Hong Kong and absconding overseas, police can apply for court warrants requiring them to surrender their travel document.

The implementation rules also allow for the city’s security chief to apply to the courts to freeze or confiscate property belonging to suspects. Anyone who knows that a property is related to an offence under the national security law is obliged to report to police “as soon as is reasonably practicable, and must not disclose to any other person any information which is likely to prejudice any investigation”.

Internet firms and individuals have to delete any electronic messages or information online deemed a threat to national security, or stop access by others to that information.

If the ­publisher of the messages fails to cooperate immediately, police can apply for a court warrant to seize the electronic device in question. Those who fail to comply can be liable to a HK$100,000 fine and one year in jail.

There is no mention of circumstances under which information wanted by police is stored in servers overseas, but service providers failing to help could also be subject to a fine of HK$100,000 and six months’ imprisonment.

Another rule allows for the secretary for security to order political groups in Taiwan or elsewhere overseas to surrender any information about the activities, personal particulars, assets, income, sources of income, and expenditure of an organisation in Hong Kong “in a prescribed manner within the specified period”.

Failure to comply could result in a HK$100,000 fine and six months’ imprisonment. And providing false, inaccurate or incomplete information will also be an offence, carrying a fine of HK$100,000 and a two-year prison sentence.

Under the new rules, all interception of communications and covert surveillance operations will require prior approval of the city’s leader, the chief executive.

The Committee for Safeguarding National Security will be responsible for monitoring the implementation of such operations, but the chief executive may appoint an independent person to take up the supervising responsibility.

Similar to powers under the laws on organised and serious crimes and anti-terrorism, the secretary for justice or police may apply for a court order to force a person to answer questions within a specified time frame or to provide information or material as required by police.

Barrister Anson Wong Yu-yat said the new implementation rules were far more alarming than the national security law itself, as it further undermined human rights and freedom of speech and communication.

“The new rules are scary, as they grant power to the police force that are normally guarded by the judiciary,” he said. “For example, in emergency and special circumstances police do not need a warrant under one rule, but it never explains what it means by special circumstances.

“They can also ask anyone to delete messages online only because it’s ‘likely’ to be violating the law.”

Solicitor Alan Wong Hok-ming said some of the rules were ambiguous, which might allow police to take advantage based on “national security needs”.

“What is equally worrying is that the government can always add new rules based on their wishes, bypassing scrutiny, checks and balances by other institutions like the Legislative Council,” he said.

Francis Fong Po-kiu, honorary president of the Information Technology Federation, said the power given to police regarding online and electronic platforms was worrying as it would allow them to obtain information and data from all companies based in Hong Kong.

“It is expected that some of those big social media giants will remove or rearrange users’ data currently stored in Hong Kong, while some other private companies will do the same to protect their clients,” he said.

Fong noted that while some of these companies, such as Facebook, had offices in Hong Kong, their headquarters and servers were not in the city. But anything published in the public domain could be dangerous from now on, he warned.

Both Facebook and WhatsApp issued statements hours before the new rules were published, saying they had “paused” processing law enforcement requests for user data in Hong Kong.

“We are pausing the review of government requests for user data from Hong Kong pending further assessment of the national security law, including formal human rights due diligence and consultations with international human rights experts,” a Facebook spokesperson said.

The Facebook-owned WhatsApp messaging service added in a statement that its end-to-end encryption protected the messages of 2 billion people around the world every day, and the firm would “remain committed to providing private and secure messaging services to our users in Hong Kong”.

The microblogging site Twitter told the Post late on Monday that it had paused all data and information requests from the Hong Kong authorities immediately after the law took effect last week.

Opposition lawmaker Wu chi-wai, chairman of the Democratic Party, warned that the new regulations would spread further fear among the international business community.

“They just want to drive away all international investors, and it’s just impossible for them to have peace of mind,” he said.

“All these details are not clearly defined, and evidence does not matter. It will be done when it’s deemed necessary. These are clauses to intimidate people, and will make people feel confused about what to do and not to do.”

Pro-establishment lawmaker Felix Chung Kwok-pan of the Liberal Party said people should compare Hong Kong’s national security law with similar legislation in other countries before deciding whether it would hurt the business environment.

“From a business perspective, many people were saying that they should be okay as long as they don’t cause trouble. That’s why the response from businessmen – the smartest people in the world – has been relatively calm,” he said.

Top officials are expected to attend a Legco meeting on Tuesday to answer questions on the national security law.


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