Suspect Jimmy Lai Chee-ying successfully persuaded the High Court to allow him to be represented by a UK barrister, Tim Owen KC, in his trial for collaboration with foreign forces to endanger national security. The Hong Kong Special Administrative Region government’s appeal to the Court of Appeal failed, and its further appeal to the Court of Final Appeal also failed.
The question now is whether the matter should be remedied by a Standing Committee of the National People’s Congress of the People’s Republic of China interpretation. The crux of this saga originated from Section 27(4) of the Legal Practitioners Ordinance, which allows the court to admit experienced overseas barristers, in complex cases, to appear before Hong Kong courts to make representations for their client and to guide the court through relevant overseas cases; and the result is, Hong Kong judgments will be in tune with top-quality judgments in advanced common law jurisdictions.
This system works well, but the problem here now is politically unacceptable as it is contrary to the whole purpose of this offense to punish someone who collaborated with foreign forces to subvert the government; and ironically, allowing the suspect to be aided by a UK barrister where the UK is squarely one of such foreign forces the National Security Law for Hong Kong seeks to expel. And this political problem emanated from a discrepancy in the National Security Law for Hong Kong and also the Basic Law. When enacting the Hong Kong National Security Law in 2020, the draftsman’s attention was not drawn to the existence of Section 27(4) and the possibility of a suspect like Jimmy Lai making such use of it. A fortiori, the draftsman of the 1990 Basic Law allowing Hong Kong residents to have their own choice of lawyers in Article 35 could neither contemplate such a scenario.
How to deal with this discrepancy? In common law, the court may adopt a remedial interpretation to “read in” to the legislation words that will correctly reflect the legislative intent so as to remedy the discrepancy in drafting. “Reading in” is a well-established principle regularly applied to supplement legislation that has been omitted. This is in order to add sufficient words and phrases to reflect the true intention of legislation.
“Reading in” is a well-established principle regularly applied to supplement legislation that has been omitted. This is in order to add sufficient words and phrases to reflect the true intention of legislation
Moreover, regarding constitutional interpretations, when there is an inadvertent omission, the court can “read in” missing words to reflect true legislative intent. (Schachter vs Canada (1992)).
This process was evident in Jones vs Wrotham Park Settled Estates (1978). It has been developed further in the case of Inco Europe vs First Choice Distribution (2000) that “reading-in” was permissible where the court was abundantly sure of three matters; namely, (i) the intended purpose of the statute or provision in question, (ii) that the draftsman had inadvertently failed to give effect to that purpose and (iii) the substance of the provision Parliament would have made, although not necessarily the precise words it would have used, if the error had been noticed.
In the case R vs Humber Bridge Board (2004), the Humber Bridge Board was empowered by the Humber Bridge Act 1971 to manage the tolls, with varying charges for vehicle categories.
These toll charges had to be authorized by the minister responsible, who would issue a statutory order. Large buses were included in the 1979-80 and 1989 statutory orders but were left out in the 1997 statutory order. There was evidence that the responsible minister accepted a report by the traffic inspector who recommended a 9.20-pound ($10.96) toll for large buses. The English Court of Appeal held that the 1997 statutory order was ambiguous and absurd. Acceptance of the report was therefore seen as strong evidence that large buses were to be included; the 1997 statutory order was construed as including tolls for large buses.
Echoing the principle of “reading-in”, Sir Anthony Mason, a non-permanent judge in the Court of Final Appeal judgment HKSAR vs Lam Kwong-wai (2006), said:
“A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.”
Followed by another Hong Kong High Court judgment in Yeung Chu-wing vs Secretary for Justice (2019), “It is now firmly established that the court has the implied power to adopt remedial interpretation for the purpose of making a statutory provision Basic Law or BOR compliant. … The court in adopting remedial interpretation may make use of the well-known techniques of severance, reading in, reading down and striking out.”
If the NPCSC is to read into the Basic Law Article 35 limitation on the right of national security offense suspects to choose lawyers to be confined to local lawyers, that would be entirely compatible with norms of remedial constitutional interpretation in common law jurisdictions. In other words, if a similar legal problem arises in an advanced common law jurisdiction, the courts might well deploy the interpretation technique of “reading-in” to solve it. Thus, should the NPCSC decide to interpret Article 35 of the Basic Law to limit the right to choose lawyers, such a decision will be compatible with internationally accepted principles of constitutional interpretation.
The author, a barrister, is chairman of the Hong Kong Legal Exchange Foundation and an Election Committee member (Legal Sector).
The views do not necessarily reflect those of China Daily.
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