When American Judges Encounter Hong Kong’s National Security Law

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When American Judges Encounter Hong Kong’s National Security Law

2025-05-18 22:28 Last Updated At：22:28

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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.

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Nepalese Students Visit Hong Kong to Discuss Impact of Belt and Road Initiative (BRI) - LegCo Members and Nepalese Consul-General Share Insights

Author: Member of the Legislative Council, Dr. Lee Hoey Simon

Under the joint initiative of Legislative Council Members Hon Maggie Chan Man-ki, Dr Hon Thomas So Shiu-tsung, Hon Wu Yingpeng, Dr Hon Hoey Simon Lee, law students from Kathmandu University and Tribhuvan University in Nepal recently came to Hong Kong to participate in the annual International Commercial Arbitration Moot Court Competition, and jointly organized the "A Young Chat of the Rule of Law and Social Development of Nepel since the BRI". Dr Bindeswar Prasad Lekhak, Consul-General of Nepal to HKSAR, attended the seminar. The event was supported by Regal Hotels Group, China Resources Group, Tseng Hin Pei Charity Fund Limited, and Basic Law Foundation, among other organizations.

This marks the fourth consecutive year that Legislative Council Member Dr Hon Hoey Simon Lee has gathered with young law students from BRI country in Hong Kong. This year, for the first time, the exchange was jointly organized with multiple Legislative Council Members, and for the first time, the Nepalese Consul-General in Hong Kong attended.

In his opening remarks, Dr Lekhak, Consul-General of Nepal to HKSAR, emphasized the long-standing and robust friendship between Nepal and China, reaffirming Nepal's steadfast commitment in upholding the one-China principle. Dr Lekhak pointed out that China is Nepal's second-largest trading partner, with close ties spanning trade, foreign direct investment, and tourism. Since Nepal participated in the BRI in 2017, collaborative projects have expanded across various sectors—including urban development, infrastructure, education, health, sports, and energy—providing significant opportunities for Nepal’s development. Nepal has a favorable investment environment and welcomes all sectors in Hong Kong to further strengthen economic and trade cooperation with Nepal.

During the seminar, the Nepalese law students shared profound insights into the positive changes the BRI has brought to their region, specifically discussing its tangible impact on improving local livelihoods and advancing the rule of law. They pointed out that during the pandemic, the BRI framework facilitated vaccine and medical assistance to Nepal, playing a significant role in humanitarian relief. In the long term, they have a positive vision for the BRI’s promotion of cross-border connectivity, bringing medical services, economic opportunities, trade efficiency, and cultural preservation to benefit local communities.

Local Hong Kong young leaders also participated in the exchange, engaging in in-depth discussions on how the BRI promotes the rule of law in Nepal, with particular focus on the critical role of alternative dispute resolution mechanisms, such as mediation and arbitration, in promoting regional legal cooperation. This exchange fostered mutual learning and deepened understanding and recognition, served as a vital communication bridge for young leaders from different cultural backgrounds.

To showcase their heritage, the Nepalese students presented traditional souvenirs, including Dhaka topi, handmade yak milk soaps, and traditional instruments singing bowls. The venue was also decorated with BRI-themed exhibition installations, enable attendees to experience the cultural charm of Nepal firsthand and further strengthening their friendship.