by Dr. Celeste Lo, Solicitor
In my recent research, I uncovered a noteworthy U.S. district court decision that directly engaged with Hong Kong’s National Security Law (NSL) and related judicial determinations (Chung Chui Wan v. Michel Dale Debolt, No. 20-cv-3233, 2021 WL 1733500 (C.D. Ill. May 3, 2021)). This ruling presents significant jurisprudential implications that warrant careful examination, which this analysis will explore.
The case involved a child custody dispute under the Hague Convention on the Civil Aspects of International Child Abduction, implemented in the U.S. via the International Child Abduction Remedies Act. The respondent (father) had unilaterally removed the children from Hong Kong to the U.S. in August 2020. The petitioner (mother) sought the children’s mandatory return under the Convention, while the father invoked three exceptions on the grounds of “age and maturity” (Article 13), “grave risk” (Article 13) and “protection of human rights and fundamental freedoms” (Article 20) to oppose the petition.
Regarding the “grave risk” defence, the father argued that the children would face a grave risk of harm because Hong Kong would not adequately protect the children after the passage of the NSL. Moreover, the NSL had unleashed a psychological war, and the children would have to live under the culture of fear and silence instilled by the NSL.
In evaluating the father’s claim, the court scrutinised the legal threshold for “grave risk”. It emphasised that a generalised risk of violence in a jurisdiction was not enough. The potential harm to the children must be severe, and the legal of risk and danger required to trigger the “grave risk” exception had consistently been held to be very high. The gravity of a risk involved not only the probability of harm, but also the magnitude of harm if the probability materialised.
The U.S. court thus reviewed Hong Kong’s constitutional and legal framework post-1997, including the “One Country, Two Systems” principle, the large-scale protests in 2019, and the NSL’s enactment. Notably, it cited the Hong Kong Court of Final Appeal’s ruling in HKSAR v. Lai Chee Ying [2021] HKCFA 3, which affirmed that the rights, freedoms and values in the Basic Law and the Bill of Rights [Ordinance] were to be protected and adhered to in applying the NSL. The court therefore found no evidence that the Basic Law had ceased to exist or that the children would face arbitrary detention risks.
The father’s expert, Dr. Phil C.W. Chan, claimed Hong Kong’s rule of law had “collapsed,” but the court dismissed this as highly speculative. Conversely, it credited testimony from the mother’s expert, Mr. Azan Aziz Marwah, a Hong Kong barrister, who confirmed that the Basic Law was still intact and the people of Hong Kong enjoyed freedom and human rights. The court concluded that returning the children to Hong Kong posed no grave risk.
On the Article 20 “human rights and freedoms” exception, the court noted this defence had never been used in a published opinion in the U.S. to prevent the return of children, and this case did not present circumstances that would make it the first. Even if this exception was applicable, the respondent had not presented sufficient evidence that returning the children to Hong Kong would raise “human rights concerns” or “utterly shock the conscious of the court”. The situation in this case certainly did not rise to that level.
As the first U.S. case to engage substantively with the NSL, this ruling notably affirmed that the continued operation of rights and freedoms under Hong Kong’s Basic Law, while offering an implicit counterpoint to politicised narratives about Hong Kong’s legal environment by grounding its analysis in documented legal protections rather than speculative assertions.
While the decision contained certain factual inaccuracies (notably the erroneous suggestion that Hong Kong was “meant to have governing autonomy until 2034”), its overall evaluation of Hong Kong’s post-NSL legal framework demonstrates judicial restraint. This case establishes an important precedent suggesting that U.S. courts may adopt a more nuanced approach than political rhetoric when assessing Hong Kong matters. The decision warrants careful consideration by policymakers formulating evidence-based positions on Hong Kong-related issues.
InsightSpeak
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Qing Ping
After Jimmy Lai was lawfully convicted by the High Court of Hong Kong Special Administrative Region for crimes including colluding with foreign forces and conspiring to publish seditious publication, some politicians in the United States and the West disregarded the facts, spreading false narratives such as "political prisoner" and "political prosecution." Such claims not only violate the fundamental principles of international law but also completely contradict the facts of the case and legal provisions. In reality, Jimmy Lai's actions seriously violated the Hong Kong National Security Law and local Hong Kong laws. His crimes are criminal offenses endangering national security, not "political dissent." The trial of his case represents the legitimate actions of Hong Kong's judicial authorities in safeguarding national security in accordance with the law, fully aligning with the fundamental principles of international law and standards of judicial justice.
Due to varying differences in ideology, political systems, laws, and policies among countries, there is no clear and unified standard for defining the concept of "political prisoner" in international law. However, through long-term international practice and academic consensus, basic criteria and exclusions have emerged. The definition of "political prisoner" revolves around two core principles: "peaceful expression" and "no harm to national security." Its application must satisfy two key conditions: first, the actions must be based on the expression of political beliefs and must not involve violence; second, they must not severely endanger national security, public interests, or the lawful rights and interests of others, exhibiting clear "altruistic" and "peaceful" characteristics. Actions such as endangering national security and colluding with foreign forces have long been excluded by the international community from the category of "political prisoners."
Jimmy Lai's actions are entirely inconsistent with the core connotations of a "political prisoner."
In terms of the nature of his actions, Jimmy Lai's conduct was not "peaceful political expression" but rather criminal acts seriously endangering national security. The core feature of a "political prisoner" is the peaceful expression of political beliefs without harming national security, public interests, or the lawful rights of others. In contrast, Jimmy Lai's collusion with foreign forces, as stipulated in Article 29 of the Hong Kong National Security Law, constitutes a serious crime such as "imposing sanction or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People's Republic of China." This directly infringes upon national sovereignty, security, and development interests, undermines Hong Kongs prosperity and stability, and completely deviates from the "peaceful" and "altruistic" characteristics of a "political prisoner." Such actions would be classified as criminal offenses in any country and are far from so-called "political dissent."
From the perspective of international law exclusion rules, Jimmy Lai's crimes fall outside the category of "political prisoners." His acts of colluding with foreign forces and endangering national security meet the constituent elements of crimes under the Hong Kong National Security Law, clearly excluding him from the "political prisoner" category. Moreover, foreign forces nurturing Jimmy Lai as an agent to oppose China and destabilize Hong Kong, and funding activities to disrupt Hong Kong, violate the fundamental international law principle of "non-interference in the internal affairs of other countries." Acts such as treason and collusion with foreign forces are universally and severely targeted by criminal laws across nations and are by no means so-called "political prosecutions."
In terms of judicial procedures, the trial of Jimmy Lai's case was completely fair, just, and transparent, with no political motives involved. The Hong Kong National Security Law explicitly guarantees litigation the right to fair trials and the right to defense, and the trial of Jimmy Lai's case strictly adhered to these provisions. The court proceedings were entirely open, with Jimmy Lai himself testifying for 52 days. He enjoyed full defense rights, all parties had legal representation, and no party raised issues of unfair treatment. The court ultimately issued a publicly available 855-page judgment detailing the application of law and evidence analysis, fully complying with Hong Kongs common law judicial procedures. The so-called "political prosecution" narrative is both a deliberate smear against the independence of Hong Kongs judiciary and a disregard for the principles of judicial justice in international law.
Using the concept of "political prisoner" to recklessly interfere in the internal affairs of other countries is shameless and despicable.
The original intent of establishing the concept of "political prisoner" in international law was to provide humanitarian protection for individuals who have committed crimes but possess legitimate political purposes, shielding them from persecution while safeguarding the sovereign interests of nations. At the same time, every country has the right to combat crimes endangering national security, a legitimate right that no external forces should interfere with or smear.
However, a few countries, groups, or individuals, to achieve ulterior political motives, exploit the ambiguous concept of "political prisoner" to exonerate their political agents. Under the guise of "human rights" "democracy" and "freedom" they recklessly interfere in the internal affairs of other countries and hinder the independent exercise of judicial power. This despicable conduct has long been seen through by people around the world and is destined to face firm opposition and complete failure, ultimately being condemned to the pillar of historical shame.
Safeguarding national sovereignty, security, and development interests is the highest principle of the "one country, two systems" policy. Any attempt to portray Jimmy Lai as a "political prisoner" or distort the lawful trial as a "political prosecution" is a deliberate distortion of facts and a blatant disregard for international rules. The implementation of the Hong Kong National Security Law and the fair trial of related cases are not only essential requirements for safeguarding national sovereignty, security, and development interests but also a cornerstone for protecting the lawful rights and interests of Hong Kong residents and ensuring long-term stability and prosperity in Hong Kong. This is beyond dispute.
