Hong Kong national security police can seize journalistic files without court approval: prosecutors

Published (HKT): 2021.04.02 05:51

Hong Kong’s justice department has asserted that national security police are exempt from laws governing the search and seizure of journalistic content, Apple Daily has learned.

The issue came up after police on Jan. 6 raided the Hong Kong Public Opinion Research Institute and seized data. Later that month, the institute’s executive director Robert Chung asked the court to stop the police from accessing some of the data, which he said was journalistic material.

The institute also issued a statement on Thursday, citing a stipulation in the Interpretation and General Clauses Ordinance that law enforcement could search and seize journalistic material only when the search warrant specifically allowed it. The warrant for the January raid had no such provision, the institute noted.

However, Apple Daily found that the Department of Justice had already rejected that argument. Government prosecutors said the law was not applicable in national security cases, in a letter to the institute seen by Apple Daily.

Prosecutors said the Interpretation and General Clauses Ordinance applied only to “ordinances,” and the national security law did not belong to that category. A search warrant obtained under the national security law would be understood to include the power to search and seize journalistic material, even without express authorization, they added.

Unlike local ordinances, the national security law was enacted by China’s legislature via Annex III of Hong Kong’s Basic Law, which allowed the law to circumvent local legislative oversight.

The institute said on Thursday that it was negotiating a joint inspection protocol with the department regarding the material confiscated in January.

The department was “willing to temporarily refrain from unsealing and/or opening the journalistic materials for the time being pending joint inspection of the seized materials,” the institute said.

If the national security law empowered the police to seize journalistic files without judicial oversight, journalists would find it much more difficult to protect their sources, Hong Kong Journalists Association chair Chris Yeung said.

Such a move would make the public less willing to speak to the media and damage press freedom in Hong Kong, Yeung added.

The department said it would not comment on individual cases. Apple Daily has contacted the police for comment.

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