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17. The prosecution submitted further that section 109 of the newly enacted Safeguarding National Security Ordinance could be used as an aid to ascertain the intention of the legislature with regard to the penalty provision for conspiracy to commit offence under the NSL. Section 109 of the Safeguarding National Security Ordinance provided as follows:-
“109. Penalty for conspiracy, incitement or attempt to commit offence under HK National Security Law
To avoid doubt, despite any other Ordinance—
(1) if a person is convicted of conspiracy to commit any offence under the HK National Security Law (NSL offence), any provision concerning the penalty for the NSL offence under the HK National Security Law also applies to the penalty for the conspiracy;”
18. The Safeguarding National Security Ordinance was a piece of domestic legislation enacted in March 2024 by the Legislative Council in Hong Kong. The Law of the People’s Republic of China on Safeguarding National Security in Hong Kong Special Administrative Region (The NSL) was however a piece of national legislation enacted in 2020 by the National People’s Congress in Beijing. The two legislative bodies were different entities occupied their respective positions at wholly different levels. As a matter of logic, it would be difficult to see how a local piece of legislation could be used to ascertain the legislative intent of the National People’s Congress.
19. Further when the Safeguarding National Security Ordinance was enacted, it was explicitly stated that the provisions of the ordinance had no retrospective effect. As such, we were of the decision that section 109 of the Safeguarding National Security Ordinance was of little assistance in this particular case.
