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
** 博客文章文責自負,不代表本公司立場 **
Liang Yaqi, a member of the Chinese Association of Hong Kong and Macau Studies
On 7 May 2026, the Central Criminal Court in London delivered its verdict on Chung Biu Yuen, Administrative Manager of the Hong Kong Economic and Trade Office in London, and Chi Leung Wai, a former UK border official. This first national security case to be heard under the UK National Security Act 2023 has been marred by an air of irregularity from start to finish: persistent procedural flaws, a fragile chain of evidence and numerous inconsistencies have led many to question whether this was a fair trial or a carefully orchestrated political manoeuvre.
Preconceived notions shaped public perception, undermining procedural fairness. Even before the trial had formally commenced, the public discourse was already fraught with tension. Following the case’s first court appearance in 2024, a document purported to be a ‘summary of the charges’ circulated widely in the media. It disclosed in detail the defendant’s specific actions, included screenshots of CCTV footage from relevant activities, and even listed details concerning the London Economic and Trade Office’s involvement in the case, clearly intended to steer public attention towards the Office’s role. Some Hong Kong media outlets have questioned why, in the past, law enforcement agencies would typically handle indictments involving sensitive case details with great caution or even keep them confidential; the current situation appears rather unusual. Even before a jury has been selected and the formal trial has begun, the public and potential jurors have already been led by preconceived notions into a narrative of the case dominated by the prosecution. This directly crosses the red line set by Section 52(a) of the UK’s Crime and Disorder Act 1998, which prohibits the media from reporting content that may prejudice the defendant during the preliminary hearing stage. Before the defendants have even spoken, they have been labelled – this practice of ‘pre-conviction’ by the media is clearly extremely unfair to the defence and undermines procedural fairness.
The mysterious death of the third defendant has deepened the mystery surrounding the case. Even more chilling is the fact that shortly after the case was brought before the court, the third defendant, Matthew Trickett, a former Royal Marines serviceman, died under mysterious circumstances in a park. As a former soldier and an enforcement officer with the Home Office’s Immigration Service, Trickett could have provided crucial testimony to clarify whether the operation was ‘officially authorised’ or a private act. His sudden passing deprived the defence of a vital witness, preventing the full chain of evidence from being thoroughly examined in court and sparing the prosecution from the potential risks of cross-examination. Given the highly sensitive timing of his death, Trickett’s solicitor expressed shock at his passing, whilst some netizens have even suspected that he was “silenced”. Although the authorities have denied foul play, it is lamentable that the judicial process has been “streamlined” due to the death of a single individual.
The prosecution’s evidence was flimsy and unconvincing. Section 3 of the UK National Security Act 2023 stipulates that the offence of “aiding a foreign intelligence service” requires proof that the act “is likely to substantially assist a foreign intelligence service”. Yet throughout the trial, the prosecution failed to present any fundamental evidence that the defendant’s actions had substantially harmed UK national security. The alleged acts cited by the prosecution—such as the defendant’s purported surveillance of Hong Kong residents, unauthorised access to immigration databases, and door-to-door “debt collection”—sound more like ordinary criminal offences. The prosecution essentially pieced together a case based on electronic evidence such as communication records and financial transactions, yet never produced irrefutable proof that the defendant engaged in “intelligence activities” that posed an actual security threat to the UK. Forcing ordinary behaviour to be elevated to the level of national security constitutes a “hat trick” that fails to convince.
The judge’s guidance was markedly biased, contravening her role of impartiality. Prior to the verdict, the judge’s instructions to the jury were also biased. She repeatedly emphasised the prosecution’s perspective regarding the admissibility of evidence and the assessment of witness credibility. For instance, although much of the evidence presented by the prosecution in court occurred before the UK National Security Act 2023 came into force—and should therefore not have retroactive effect—the judge reminded the jury that they could treat this as “background information” to understand the defendant’s network of contacts. Although the judge stated that such background information could not be used directly as a basis for conviction, and this appeared neutral on the surface, in reality it had already painted the defendant in a negative light. Furthermore, when the jury had deliberated for several days without reaching a ‘unanimous verdict’ on all charges against the defendant, the judge instructed that the standard be lowered from a ‘unanimous verdict’ to a ‘majority verdict’. Whilst this move was not unlawful, in such a highly sensitive national security case, might the proactive lowering of the threshold to facilitate a conviction give rise to public doubts regarding the impartiality of the trial? Might it create a negative perception that the judicial process is not sufficiently fair?
The jury’s deliberations were fraught with difficulties, and there appeared to be political pressure. The deliberation phase was marked by a series of setbacks: one juror was hospitalised due to ill health, whilst another requested to withdraw. Chi Leung Wai’s defence counsel at one point questioned whether this juror had been ‘bullied’ by other dissenting jurors; this was precisely why the judge instructed the jury that day to ‘respect differences of opinion but continue to work together to seek consensus’.After four days of deliberations, the jury had still failed to reach a “unanimous verdict”, indicating that it was struggling to reach a consensus on the facts of the case. It was not until the fifth day, following the judge’s instruction to lower the standard of the verdict, that the jury, after a protracted stalemate, barely met the minimum threshold of a 10-2 majority verdict on the charge of “assisting a foreign intelligence agency”, whilst they remained unable to reach a verdict on the charge of “foreign interference”. Whether this outcome truly reflects the jurors’ inner conviction or is merely a compromise born of prolonged pressure is a matter for reflection.
The UK National Security Act is defined in overly broad terms, making it highly susceptible to expansion and abuse. A review of the entire case process exposes the fundamental flaw of the UK National Security Act 2023, which is its extreme vagueness. The Act stipulates that the offence of “aiding a foreign intelligence service” is committed whenever an act is likely to assist a foreign intelligence service in carrying out activities relating to the UK; the definition of a foreign intelligence service is even broader, encompassing any person conducting intelligence activities for or on behalf of a foreign state. It is clear that the threshold for the offence of “aiding a foreign intelligence service” is so low that it could encompass many ordinary activities. Even Jonathan Hall KC, the independent reviewer appointed by the UK Home Secretary, has publicly stated that the relevant provisions of the UK National Security Act 2023 could extend to political, journalistic and other everyday activities, placing legitimate lobbying, journalistic investigations and even ordinary commercial activities at risk of criminalisation. He emphasised that the Act must be subject to oversight to prevent its “abuse and overreach”.
Ironically, the UK completely ignores the fact that its own national security provisions are vague and broadly applicable, and turns a blind eye to the various flaws in the adjudication of national security cases, yet it repeatedly criticises and meddles in the Hong Kong National Security Law. Such double standards appear particularly hypocritical and laughable. If the UK truly cares about the rule of law, it would do well to return to the principles of evidence-based adjudication and procedural justice, rectify errors in cases as soon as possible, and ensure that the judiciary does not become a mere appendage of politics, thereby trampling the spirit of the rule of law underfoot!
