Hong Kong’s justice secretary has claimed that a proposal to set up an area under mainland Chinese law at the West Kowloon Express Rail Link terminus will not breach the Basic Law, as the city’s mini-constitution does not define its borders.

Under the government’s plan announced at a Tuesday afternoon press conference, sections of the second and third basement floors of the giant underground terminus will be leased to the mainland and governed under mainland laws – albeit with exceptions related to rail operation issues. The railway platform on the fourth basement floor and the trains themselves will also be placed under mainland jurisdiction.

Express Rail Link High-Speed Rail terminus West Kowloon Floor Plan
Proposed floor plan of the terminus. Photo: Legislative Council.

Following the announcement of the plans, Secretary for Justice Rimsky Yuen dismissed questions from reporters suggesting that the arrangement would violate Article 18 of the Basic Law, which states that national laws are not applicable in Hong Kong territory.

“From a strictly legal perspective, the Basic Law itself does not define the boundaries of Hong Kong,” he said. “Hong Kong’s own local laws also do not define the boundaries of its territory.”

The borders of the Hong Kong Special Administrative Region are defined in a Chinese State Council order issued in April 1990, which has subsequently been included as a supplementary document to the Basic Law.

A new Beijing resolution

On Tuesday, Yuen announced that the Hong Kong government would seek a resolution from the Standing Committee of the National People’s Congress (NPCSC) – China’s top legislative body – authorising the mainland checkpoint areas of the West Kowloon terminus to be regarded as falling outside of Hong Kong territory.

Secretary for Justice Rimsky Yuen
Secretary for Justice Rimsky Yuen. Photo: Screenshot.

He said that the prospective NPCSC resolution would be adopted to serve the sole purpose of enforcing mainland laws in the checkpoint area – and did not amount to a “ceding” of territory to the mainland.

Following the prospective NPCSC resolution, the Hong Kong government will seek to pass the proposal in the city’s Legislative Council. Bills proposed by the government require the approval of over 50 per cent of lawmakers. There are currently 40 pro-Beijing and 24 pro-democracy lawmakers in the legislature.

Yuen added that he will respect the public’s right to file judicial reviews over the proposal. “It is for the court to decide whether the legal proceedings [that the public] commence are justified,” he said.

Legal scenarios

Reporters at the press conference also asked Yuen and Secretary for Security John Lee a series of questions on how various legal scenarios inside the West Kowloon terminus would be resolved.

Express Rail Link West Kowloon Terminus
Photomontage of Express Rail Link West Kowloon Terminus. File photo: Andrew Bromberg at Aedas/Wikimedia Commons.

Lee said that babies born inside the mainland checkpoint would not be able to gain Hong Kong residency. People in need of urgent medical attention in the checkpoint would be accompanied by immigration officials to a nearby hospital, where they would complete immigration procedures after being treated.

As to whether passengers would be able to access websites blocked in mainland China – such as Facebook – inside the mainland checkpoint, Yuen said he did not know. “I think I would like to find out the answer to that later myself,” he added.

While the B4 platform and the high-speed trains will be placed under mainland control, the railway tracks and the tunnel fall under Hong Kong jurisdiction, according to the government’s plans. Yuen said it would be impossible for an individual to jump into the tracks to avoid being subject to mainland laws, as the gap between the train and the platform is very narrow.

Guangzhou-Shenzhen-Hong Kong Express Rail Link
A train of the Guangzhou-Shenzhen-Hong Kong Express Rail Link. File photo: GovHK.

“Even if they manage to jump into the tracks, we would treat [the people] as illegal immigrants,” he added.

Armed mainland officials

In response to a reporter’s question on whether mainland officials in West Kowloon would carry firearms, Lee said mainland authorities would operate their section of the terminus “as they would run a port in the mainland.”

The secretary for security said that officials patrolling checkpoints would only carry batons, based on his understanding of “normal procedures” in Guangdong.

“When there is information about a terrorist attack… equipment will be drawn as necessary to deal with the incident,” he said. “This all depends on the specific situation.”

Guangzhou-Shenzhen-Hong Kong Express Rail Link
West Kowloon terminus construction site. File photo: GovHK.

“We need to respect that the discretion on how to operate the mainland port area falls to mainland China.”

Justice secretary Yuen added that mainland officials will travel back across the border at the end of their work shifts every day, and will not live in Hong Kong.

Elson Tong is a graduate of international relations and former investigations consultant. He has also written for Stand News.