This thesis examines the Hong Kong judiciary’s approach to judicial deference in relation to national security-related asset freeze made under the Implementation Rules. It first offers a comprehensive analysis of the Implementation Rules, along with a detailed analysis of the Schedule 3 asset freezing regime thereunder. The Implementation Rules hold a significant position within Hong Kong’s national security legislative framework, yet they have received limited academic attention thus far. This thesis notes that, in general, the Implementation Rules are mainly rooted in pre-existing local laws. Specifically, the Schedule 3 asset freezing regime is modelled after the asset freezing provisions of a pre-existing ordinance, with minor alterations in statutory wording.

The thesis further explores how the Hong Kong courts have afforded deference in the national security context, with a particular focus on an asset freezing case brought under Schedule 3. It is observed that prior to the NSL’s enactment, Hong Kong courts had already expressed their willingness to defer to a large extent to the executive in national security cases. In the post-NSL era, the courts have generally maintained a deferential stance towards national security matters. In a significant Schedule 3 asset freezing case, Lai Chee Ying v Secretary for Security, the High Court indicated a clear inclination towards affording a high degree of deference to the executive. Examination of other national security cases further indicates that the courts have implicitly viewed national security as a subject area that automatically attracts broad deference.

Furthermore, the thesis conducts a comparative analysis of judicial deference in national security-related asset freezing cases in the UK and US. Its aim is to guide the subsequent normative discussion on the extent and manner in which Hong Kong courts should defer to the executive in national security cases, including those that involve Schedule 3 asset freezing. The thesis finds that although the Schedule 3 asset freezing regime is not fundamentally distinct from comparable regimes in the UK and US, it falls short of important procedural safeguards. It reveals that when scrutinizing national security-related asset freezes, the UK Supreme Court demonstrated less deference to the executive, applying the proportionality test rigorously. In contrast, the US federal courts adopted a much more deferential approach, despite their recent focus on procedural rights.

The thesis further argues that Hong Kong courts should not take a highly deferential posture towards the executive branch in national security cases. Instead, they should adopt a nuanced, issue-sensitive approach to better uphold the separation of powers and serve as a safeguard of human rights. The thesis also illustrates how the proposed approach can be applied in cases where courts examine the proportionality of Schedule 3 asset freezing decisions. The thesis concludes with predictions on the future trajectory of judicial deference in the national security context in Hong Kong. Particularly, it argues that as the political situation in Hong Kong stabilises and the “security imperative” passes, Hong Kong courts could act more robustly and demonstrate less deference to the government in national security litigations in the future. Meanwhile, the courts should continue to innovate and develop new legal strategies to achieve a better balance between national security and the protection of individual rights. This could include invoking common law principles of fairness, which would establish precedents requiring the government to give affected individuals prior notice and an opportunity to be heard before issuing an asset freezing order.