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On 8 June 2026, the Hong Kong government announced a proposal to give the Chief Executive an explicit power to certify any criminal case as engaging national security, a move that could fundamentally reshape how defendants experience the justice system. This proposal follows the Implementation Rules (LN27) that took effect on 23 March 2026, which already expanded the procedural reach of Article 43 of the National Security Law (NSL). For anyone facing criminal proceedings in Hong Kong, or advising someone who is, understanding how national security certification works, and what it triggers, is now an urgent practical necessity. The consequences touch every stage of a case: bail, evidence handling, trial format, device access, and the strategies available to defence teams.
This guide explains the certification power in plain English, maps out its legal effects, and provides actionable checklists for defendants, solicitors, foreign nationals, and consular staff.
This article is general information only and does not constitute legal advice. If you or someone you know is facing criminal proceedings that may be certified as a national security matter, contact a qualified Hong Kong criminal solicitor immediately.
Last updated: 13 June 2026.
To understand the power to certify a criminal case in Hong Kong as a national security matter, it is essential to trace how the legal framework has developed since 2020. The relevant provisions sit within the NSL itself and, more recently, within the Article 43 Implementation Rules brought into force by LN27.
The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, commonly known as the NSL, was enacted on 30 June 2020. Chapter IV sets out the procedural architecture for national security cases. The most consequential articles for defendants are:
The full English translation of these articles is available on the Hong Kong e-Legislation platform.
The Article 43 Implementation Rules, brought into force as LN27 on 23 March 2026, flesh out the operational powers hinted at in Article 43. These rules provide detailed procedures for law enforcement to exercise their national security powers, including the compelled production of device passwords, encryption keys, and electronic records. LN27 also clarifies the circumstances in which a senior police officer may authorise applications for production orders, search warrants, and asset-freezing measures specifically for national security cases.
Industry observers expect LN27 to make the practical gap between ordinary criminal investigations and national security investigations significantly wider, particularly regarding device access and evidence-gathering.
On 8 June 2026, Hong Kong Free Press reported that the government is proposing to give the Chief Executive a broader, stand-alone power to certify criminal cases as engaging national security, extending beyond the reactive, court-referral mechanism in Article 47. As reported by Jurist, the proposal would allow the Chief Executive to certify ordinary criminal acts as national security matters at an earlier stage, potentially before trial. If enacted, this would mean that a wider range of criminal charges, not only those formally brought under the NSL or the Safeguarding National Security Ordinance (SNSO), could attract the full suite of national security procedures.
The likely practical effect is that defendants in cases not originally charged under national security legislation could find their proceedings re-classified, triggering every procedural change discussed below.
When the Chief Executive issues a certificate that a case involves national security, the procedural rules governing that case shift fundamentally. Understanding these consequences is essential for any defendant who may need to certify a criminal case in Hong Kong or who faces the prospect of national security certification being applied to their proceedings.
Trial without jury. Under Article 46 of the NSL, if the Secretary for Justice directs that a national security case be tried without a jury, the case is instead heard by a panel of three judges designated by the Chief Executive. The defendant loses the right to a jury trial, a protection that would otherwise apply in serious indictable matters heard in the Court of First Instance.
Closed hearings and restricted disclosure. Certification may result in parts of the trial being conducted in camera (in private), particularly where the prosecution argues that evidence involves state secrets. Disclosure of certain material to the defence can be limited on national security grounds, restricting the defendant’s ability to see and challenge the full prosecution case.
Binding certificates on fact. Under Article 47, a CE certificate determining whether an act involves national security is binding on the courts. This means the court cannot independently reach its own conclusion on that factual question, a significant departure from ordinary criminal procedure, where the court determines questions of law and fact.
No change to the offence itself. Certification does not alter the elements of the underlying criminal charge. A fraud or public order offence remains prosecuted under its relevant ordinance. What changes is the procedure, the rules governing how the case is investigated, heard, and tried.
Wider investigative powers. Once a case is certified, the enhanced powers under Article 43 and LN27 apply. These include compelled device access, asset freezing, and surrender of travel documents, powers not ordinarily available in standard criminal investigations.
Under ordinary Hong Kong criminal law, defendants generally enjoy a presumption in favour of bail. Magistrates and judges assess flight risk, risk of re-offending, risk of interference with witnesses, and the seriousness of the charge. The effects on bail in Hong Kong change sharply when a national security dimension enters the picture.
The NSL introduces a significantly higher threshold for bail in national security cases. Article 42 of the NSL provides that no bail shall be granted unless the judge has “sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” This effectively reverses the usual common law presumption: instead of the prosecution needing to show why bail should be refused, the defendant must satisfy the court that they will not commit further national-security-related acts.
The bail jurisprudence that has developed since 2020 demonstrates that courts have applied this provision strictly. Defendants in NSL-related cases have frequently been denied bail, with pre-trial detention periods stretching to months or, in some cases, over a year. Early indications suggest that extending the certification mechanism to cover cases not originally charged under the NSL will expand this restrictive bail regime to a broader category of defendants.
For defence solicitors, the practical implications are severe. If a case is certified, the bail application must front-load evidence and arguments addressing the “will not continue” test, a harder standard than ordinary bail applications require.
Article 43 of the NSL empowers law enforcement to require persons to produce information held on electronic devices, including mobile phones, laptops, and cloud-based accounts. The Article 43 Implementation Rules (LN27), effective since 23 March 2026, set out the detailed procedure for these powers. Under LN27, a senior police officer may apply for production orders that compel a person to hand over a device password, decrypt stored data, or produce electronic records.
Failure to comply with a lawful production order can itself constitute a criminal offence. This makes the question of whether and when to hand over a device password one of the most pressing practical issues defendants now face if police seek a device password in Hong Kong in the context of national security proceedings.
Under the combined effect of Article 43 and LN27, police powers in national security cases extend well beyond ordinary criminal investigation tools. In practice, officers can:
However, limits remain. Legal professional privilege, the confidentiality between solicitor and client, continues to apply in principle. Material covered by genuine legal privilege should not be compelled, though in practice the boundaries can be contested. Where a defendant believes privileged material has been seized, this must be raised with the court immediately.
If you are in custody or approached by police requesting access to your devices in the context of a national security investigation, the following steps are critical:
Speed is critical. From the moment a defendant or their solicitor becomes aware that national security certification has been applied (or is being sought), the following steps should be taken:
Once the case proceeds toward trial, the defence strategy in a national security-certified case must account for several features not present in ordinary proceedings:
The question of whether a CE certificate can be challenged by way of judicial review remains legally contested. Article 47 of the NSL states that the certificate is “binding on the courts,” which appears to preclude direct challenge. However, arguments may arise where the certificate is alleged to have been issued outside the scope of the NSL, on a factual basis that is manifestly wrong, or in a manner that violates basic procedural fairness. Any application for judicial review must be filed promptly, delays can be fatal to the application. Defendants should discuss this option with specialist counsel at the earliest stage.
Foreign nationals arrested in Hong Kong and facing national security certification have additional rights and concerns. Under international law and Hong Kong’s domestic framework, foreign nationals are entitled to consular access, the right to have their consulate notified of their arrest and to receive consular visits while in custody.
Practical steps for foreign nationals include:
If you are arrested in Hong Kong and believe your case may be certified as a national security matter, or if you are told that certification has been applied, take the following steps immediately. Knowing what to do if arrested in Hong Kong under these circumstances can make a material difference to your case.
| Feature | Ordinary Criminal Case | National-Security-Certified Case |
|---|---|---|
| Who decides classification | Prosecutor and court, based on the charge | Certificate by Chief Executive or Secretary for Justice (per NSL / LN27) |
| Jury trial | Available where applicable (Court of First Instance) | May be removed; trial by a panel of three designated judges under Article 46 |
| Bail presumption | Standard common law presumption in favour of bail | Much higher threshold; defendant must show they “will not continue” to endanger national security (Article 42) |
| Device access / compelled decryption | Conventional warrants and PACE-type judicial oversight | Enhanced powers under Article 43 / LN27; compelled password disclosure more likely |
| Court secrecy / closed material | Rare; public hearings are the norm | Parts of trial may be held in camera; restricted disclosure on national security grounds |
| Appeal and remedies | Standard criminal appeal routes to Court of Appeal and Court of Final Appeal | Same formal routes, but practical constraints on disclosure may limit grounds; CE certificate binding on courts |
The power to certify a criminal case in Hong Kong as a national security matter, whether under the existing NSL framework or the broader proposal reported on 8 June 2026, carries profound consequences for defendants. Bail becomes harder to obtain, jury trials can be removed, device access powers expand, and parts of the proceedings may be conducted in secret. For anyone facing these circumstances, the priorities are clear: instruct a specialist solicitor without delay, prepare bail materials early, document every interaction with authorities, and understand your rights regarding device access and consular assistance. This area of law is evolving rapidly, and staying informed is itself a form of defence.
This article was produced by Global Law Experts. For specialist advice on this topic, contact Emily Au at Emily Au Solicitor, a member of the Global Law Experts network.
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