Published: 22:11, May 21, 2023 | Updated: 10:30, May 22, 2023
Jimmy Lai’s judicial challenge in High Court was doomed to failure
By Grenville Cross

On May 19, the Court of First Instance of the High Court (CFI) rejected a challenge, by Jimmy Lai Chee-ying, to the authority of the Committee for Safeguarding National Security (NSC). Lai, who is scheduled to face trial in September for three national security offenses involving alleged collusion with foreign forces, had hoped to judicially review the NSC’s decision over the admission of an overseas barrister, Timothy Wynn Owen KC, to represent him. The CFI, however, gave him short shrift, making clear it had no jurisdiction over the matter.

The NSC, in exercising its National Security Law for Hong Kong (NSL) duties and functions, had advised the director of immigration that if Owen sought permission to enter Hong Kong for the purpose of representing Lai at his trial, he should be refused entry, as it was “contrary to the interests of national security”. It did this in light of the consideration it had given to the matter after an interpretation made by the National People’s Congress Standing Committee (NPCSC), on Dec 30, 2022, concerning restrictions on the admission of overseas lawyers to conduct national security cases in Hong Kong.

In acting upon the NSC advice, the immigration director indicated that any application by Owen to appear on Lai’s behalf would be rejected, and it is clear why.

There may be grave implications if overseas lawyers acquire crucial information about State secrets or police operations when defending in a national security trial. A foreign intelligence agency could seek to extract the material from them once they return home, which would place them in an invidious position. If, perhaps under pressure, they disclosed restricted national security information, there would be nothing the Hong Kong authorities could do about it, and real damage might be done.

There is, however, despite those concerns, no blanket ban on overseas lawyers conducting national security cases. As the NPCSC’s interpretation indicated, the Hong Kong chief executive needs to assess each application to appear separately, undertaking a risk assessment every time. In some cases, there may be no cause for concern, but Lai’s case is clearly not in that category, given the nature of the charges he faces.

The restrictions on overseas lawyers do not, however, affect foreign lawyers who live and work in Hong Kong. If they violate confidentiality, they can, unlike overseas lawyers, be held accountable, most obviously through prosecution.

In an impeccable judgment (HCMP 253/2023), the chief judge of the High Court, Jeremy Poon Shiu-chor, analyzed the various components of both the NSL and the Basic Law and concluded that Lai’s challenge was unmeritorious.

He explained that the courts operate within the context of the jurisdiction conferred upon them by the Basic Law, and they have no extra powers derived from elsewhere. Although under the Basic Law (Art.2), the courts have independent judicial power, this can only be exercised within the parameters of the “high degree of autonomy” that the Hong Kong Special Administrative Region enjoys. The courts cannot, that is, step outside the region’s high degree of autonomy and challenge the authority of the NPCSC.

The NSL, after all, is a national law that has been applied in the HKSAR in accordance with the Basic Law (Art.18), which allows national laws to be extended to the HKSAR when they are listed in the Basic Law’s Annex III.

The NSL creates the Committee for Safeguarding National Security (Art.12) and delineates its duties and functions (Art.14 (1)). It stipulates expressly that “no institution, organization or individual in the Region shall interfere with the work of the Committee” (Art.14 (2)), and this could not be clearer. It means it is not open to the local courts to exercise any jurisdiction over the NSC.

Instead, the NSC is “under the supervision of and accountable to the Central People’s Government”, and local courts cannot usurp or circumvent the supervisory functions of the CPG. In any event, as Poon explained, “it is self-evident that the duties and functions of the NSC as enumerated in NSL 14 are matters well beyond the HKSAR courts’ institutional capacity”.

This was because “the courts have neither training nor expertise to deal with them in the exercise of their judicial function”, and it was “only logical for NSL 14 to exclude the work of the NSC from the courts’ supervisory jurisdiction by way of judicial review”.

Although Lai sought to challenge the NSC’s decision on the basis of the ultra vires rule (meaning a government body has exceeded the scope of its powers), the clear intent of the NSL cannot be sidestepped in that way. The ultra vires rule, said Poon, can only be invoked in circumstances where a court has the necessary supervisory jurisdiction, and this was absent. This was because, in NSL cases, “the courts have not been vested with any jurisdiction over the work of the NSC”.

Quite apart, moreover, from this jurisdictional point, the NSL (Art.62) stipulates that the NSL prevails over local laws in the event of inconsistency. This means the NSL enjoys primacy and the ultra vires rule, as a local device, is inapplicable to the functions of the NSC.

Although Hong Kong Watch, the UK-based anti-China propaganda outfit run by the serial fantasist, Benedict Rogers (whose patron is the former governor, Chris Patten), reacted hysterically to Poon’s judgment, calling for foreign judges to “resign from the Hong Kong Court of Final Appeal”, this was mere pretense. It did not explain why Hong Kong should admit overseas lawyers in national security cases when the UK, the US, and other common law jurisdictions do not. Whereas, moreover, Hong Kong allows overseas lawyers to seek admission in both criminal and civil cases, the UK and its allied jurisdictions confine the right of appearance in all their cases to locally qualified lawyers. In its rush to judgment, therefore, Hong Kong Watch has hypocritically disregarded the situation in its own backyard.

The NSC’s decision to bar Owen does not affect Lai’s right to legal representation. All it means is that he must, as in the UK and the US, choose a lawyer from the ranks of those who are legally qualified to practice in Hong Kong (whether local or foreign). There is nothing unfair about this, and it simply reflects the practice of the common law world. His trial, moreover, will be fairly conducted, on the basis of traditional common law standards, and he will face conviction only if his guilt is proved beyond a reasonable doubt.

By explaining the constitutional position and the jurisdiction of the courts in NSL cases so authoritatively, Poon has clarified significant issues of law. Apart from legal excellence, his judgment is grounded in common sense, and will serve as a valuable precedent for the future. Everybody, moreover, can now see why Lai’s challenge was doomed to failure.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the HKSAR.

The views do not necessarily reflect those of China Daily.