Published: 01:40, March 22, 2023 | Updated: 10:07, March 22, 2023
Broader view of 'public interest' needed in NSL era
By Junius Ho and Kacee Ting Wong

Following the interpretation of the National Security Law for Hong Kong (NSL) by the Standing Committee of the National People’s Congress (NPCSC), the government of the Hong Kong Special Administrative Region has decided to amend the Legal Practitioners Ordinance (LPO) to align its provisions with the interpretation. 

The Department of Justice (DOJ) has proposed some amendments to the LPO in the Legislative Council, particularly regarding Section 27(4) of the LPO.

Under the DOJ’s proposed amendments, the court must obtain a certificate from the chief executive under Article 47 of the NSL before allowing an overseas lawyer to participate in a national security case. The DOJ said the chief executive will certify in the certificate whether the case involves national security elements and whether the overseas lawyer’s participation is contrary to the interests of national security. The court must not admit the applicant if both criteria are affirmed by the chief executive in the certificate. Under Section 27(4) of the LPO, a foreign lawyer may be admitted (on public interest considerations), on an ad hoc basis, as a barrister for the purpose of any particular case or cases.

At issue is whether Hong Kong needs a wider consideration of public interest in the era after the promulgation of the NSL. The general principles governing ad hoc admission for overseas lawyers and public interest considerations have been well-established: See Re Perry QC (2016) 2 HKLRD 647. An issue of paramount concern is whether the public interest arising from the uniqueness of the NSL should override other public interest considerations. We answer in the affirmative.

The first reason for an affirmative answer is that the NSL is unique. It hardly needs reminding that the NSL is part of the national laws of China, aiming at safeguarding China’s broad national security as well as the HKSAR’s interests under the context of “one country, two systems”. In this sense, the public interest should be viewed from a broader perspective that takes national security into consideration. This requires the consideration of China’s national security at a time when geopolitical tensions have been escalated to a combustible level as well as the need to facilitate compatibility between Hong Kong laws and national laws in relation to national security. Catering for the needs of Hong Kong people for legal representation cannot take precedence over national security.

Second, we see great force in Rimsky Yuen Kwok-keung SC’s contention that the admission of overseas counsel in cases involving national security is incompatible with the objective and design of the NSL. The NSL was enacted as a result of a need to tackle interference in the HKSAR’s affairs by foreign or external forces: Secretary for Justice vs Timothy Owen KC (2022) HKCFA 23. The special strategic relationship between the United States and Britain and their common goal to contain China have convinced the HKSAR government to nip any latent national security threat in the bud.

Finally, confidential information, which could be of great interest and value to foreign intelligence agencies, has to be well-protected. Although Article 63 of the NSL expressly states that defense counsel or legal representatives shall keep State secrets confidential, this provision is hard to enforce if the lawyer is a foreigner. In the UK, a special advocate, in national security cases, is closely monitored to ensure that he or she does not communicate what he or she has seen in full to an affected party.

In late November 2022, Chief Executive John Lee Ka-chiu stressed that there was no effective means to ensure overseas lawyers would not have a conflict of interest because of their nationality and that they would not be controlled by foreign intelligence agencies. But a blanket ban on overseas lawyers may not serve the interests of Hong Kong. If the case does not involve national security and jeopardize national security, the court will not need to request a certificate from the chief executive. The court may be able to rely on traditional guidelines to consider whether it is in the public interest to allow ad hoc admission.

Although most common law jurisdictions allow only locally qualified lawyers to conduct trials, we must weigh the pros and cons of ad hoc admission of overseas counsel under exceptional circumstances. In Re Wordsworth (2016) SGHC, the Singapore High Court held that the case was of a complex and international nature, and there were few local advocates with the requisite expertise to properly address the issues. As a result, the Singapore High Court admitted Wordsworth under these exceptional circumstances. The court also confirmed that the application must be viewed through the prism of need. It’s worth noting that the admission of Wordsworth QC in an application to set aside a Partial Award on Jurisdiction and the Merits arising from an investor-state arbitration is consistent with the policy objective of promoting Singapore as a venue for international arbitration. The ruling has reminded us that we must address the issues of complexity of the case, the policy objectives of the government, and the need to develop local laws.

The advantages of ad hoc admission seem to outweigh the disadvantages of constraining the healthy growth of the local bar. If the pool of local legal talents lacks the required expertise, an ad hoc admission might also be beneficial to the local bar. Since the reasons for the application and the background of the overseas counsel may not be known by the opponents, the applicant should bear the burden of establishing the exceptional circumstances for allowing ad hoc admission.

The HKSAR government is expected to complete the process of amending the LPO as soon as June. As a response to the NPCSC’s interpretation, the DOJ is attempting to incorporate the spirit of the NPCSC’s interpretation of provisions in the NSL into local law. We strongly support the proposed amendments. We are of the opinion that the public interest arising from the uniqueness of the NSL should generally override other public interest considerations stipulated in the traditional guidelines.

Junius Ho is a Legislative Council member and a solicitor.

Kacee Ting Wong is a barrister, part-time researcher of the Shenzhen University Hong Kong and Macao Basic Law Research Center, and chairman of the Chinese Dream Think Tank.   

The views do not necessarily reflect those of China Daily.