Secretary for Justice Paul Lam Ting-kwok delivers a speech during the flag-raising ceremony held by the Security Bureau to commemorate the 40th Anniversary of Constitution on Dec 4, 2022 (PHOTO / HKSAR GOVERNMENT)

The Hong Kong Special Administrative Region government has proposed it will handle overseas lawyers’ participation in national security cases on a case-by-case basis, setting out a clear mechanism for the SAR’s chief executive to deal with such applications. 

This is in accordance with the amendments to the city’s Legal Practitioners Ordinance, which went through their first and second reading in the Legislative Council on Wednesday. 

Secretary for Justice Paul Lam Ting-kwok told legislators it’s rational for the chief executive to act as a “gatekeeper” in handling cases involving national security, stressing that the proposed changes will not affect the city’s rule of law.

The amendment bill is aimed at dealing with matters relating to the participation of overseas lawyers who aren’t qualified to practice generally in Hong Kong in cases concerning national security. The issue was triggered by jailed media tycoon Jimmy Lai Chee-ying’s application for a foreign lawyer to defend him in his national security case.

Secretary for Justice Paul Lam Ting-kwok said national security cases would be referred to the chief executive in a two-stage process. Specifically, a pre-application review would be conducted. An overseas lawyer should first explain the reasons to the Department of Justice for applying to participate in a national security case, and obtain permission from the chief executive to proceed before filing for ad hoc admission with the court

During Wednesday’s deliberations, Lam said national security cases should be dealt with on a case-by-case basis instead of with a “one-size-fits-all” approach. He said all such cases would be referred to the chief executive in a two-stage process. Specifically, a pre-application review would be conducted. An overseas lawyer should first explain the reasons to the Department of Justice for applying to participate in a national security case, and obtain permission from the chief executive to proceed before filing for ad hoc admission with the court. The court should then seek a certificate from the chief executive before granting a foreign lawyer such admission.

In addition, the bill suggests introducing a review mechanism that would allow the court, voluntarily or at the request of the secretary for justice, to seek a review by the chief executive again if a new national security risk emerges. Under such a situation, the chief executive would have the right to make a final decision. There would be no need for another judicial review as the chief executive’s certificate shall be binding on the courts under the National Security Law for Hong Kong, Lam said.

He stressed that introducing the pre-application review process would filter out unreasonable applications, saving time for the court.

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The Department of Justice said the court would not have to apply for the chief executive’s permission if they think the case does not involve national security. In general, it would not be difficult to distinguish the nature of the case, Lam said.  

The amendments would not have any negative effect on the SAR’s rule of law, the independent judiciary and adjudication, as well as the right of all relevant parties to choose their legal representatives and receive a fair trial.

Urging all lawmakers to support the bill, Lam also said it’s reasonable, rational and lawful for the chief executive, as head of the SAR, to act as a “gatekeeper” in this area, and the bill will not increase the chief executive’s powers under the city’s National Security Law.

An SAR government statement issued on Tuesday said the bill provides an overriding principle that an overseas lawyer must not be admitted for a national security case unless the chief executive has sufficient grounds to believe that the lawyer’s participation in the case would not be contrary to the interests of national security. 

It said the bill will not affect applications made or handled by the court before its enactment, or the admission of overseas lawyers in criminal and civil cases not involving national security. The amendments are also in line with the spirit of last year’s interpretation by the Standing Committee of the National People’s Congress on Articles 14 and 47 of the National Security Law for Hong Kong, the statement said.

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The LegCo Panel on the Administration of Justice and Legal Services expressed support for the legislative proposals after being consulted on Friday.

The bill will be further studied by a committee specially set up for it, consisting of members of the House Committee and Subcommittees, before receiving its third reading in the local legislature. The government said it expects to complete the amendment process in the first half of this year.