Jimmy Lai Chee-ying, the founder of former Apple Daily and Next Media Group, filed an order of judicial review to overturn a decision made by the Committee For Safeguarding National Security. Earlier, The Committee cited that allowing Tim Owen to defend Lai would amount to national security risks. Therefore, the Immigration Department should refuse to grant a work visa to Owen, Lai’s British barrister, to enter and work in Hong Kong.
On April 28, The High Court began to process two applications.
Yuen Kwok-keung, a former Secretary for Justice who represented the Justice Department in the case, emphasized that Hong Kong courts had no right to interfere with decisions made by the Committee For Safeguarding the National Security.
On the other hand, Lai’s defense argued that if no one or no courts in Hong Kong could challenge the Committee’s decisions, then the Committee’s power would overtake and become even more significant than that of the chief executive of Hong Kong.
The judge postponed the ruling, and a verdict would be announced within the following month.
On Aug. 10, 2020, Jimmy Lai Chee-ying was arrested and charged with colluding with foreign power under the National Security Law.
The trial was scheduled to begin in September.
In October 2022, the High Court sent Lai approval to appoint Owen, a British royal barrister, to represent him as his defense lawyer in the upcoming trial.
However, the Department of Justice opposed the High Court’s decisions and appealed to the Court of Final Appeal three times but failed.
Subsequently, after the loss of multiple appeals, the Hong Kong government requested CPC National People’s Congress to interpret the law to stipulate that the Hong Kong Chief Executive must issue an approval certificate before appointing any overseas lawyers in national security-related trials.
Meanwhile, Owen’s work visa was denied.
In March 2023, Lai entered an order at the High Court to make sure the new stipulation made by the CPC National People’s Congress would not affect the court’s ruling on approving Owen as his defense.
Lai also requested to obtain certificates from the Chief Executive on two issues following Article 47 of the National Security Law.
Firstly, he demanded a certificate of whether Owen’s defense in Lai’s case would endanger national security despite having been approved, recognized, and registered as a practicing barrister in Hong Kong; a certificate of whether other lawyers who had been hired to represent Lai, without local practice qualifications, would be accused of endangering national security.
The writ that the Department of Justice filed an oath of the immigration director on March 20 revealed that The Committee for Safeguarding National Security advised the Immigration Department to deny Owen’s work visa after deciding that Owen would threaten national security if appointed to become Jimmy Lai’s defense.
Lai requested the High Court to announce that the relevant decision exceeded the power of Article 14 of the National Security Law; thus, the court should revoke the decision and grant litigation fees.
Lai believed whether overseas lawyers could participate in legal cases concerning national security would not fall into the National Security Committee’s scope of work or responsibilities.
Also, Lai thought that even if there was a need to obtain an approval certificate from the chief executive, the court should still have the final say on whether it would be required.
Immigration Matters Not National Security Committee’s Rights
On April 28, neither Lai nor his barrister Owen were in court. However, Lai’s daughter was present.Lai’s Senior Counsel, Robert Pang Yiu-hung, stated when interpreting the law, the Standing Committee of the National People’s Congress declared that if the Hong Kong court did not obtain a certificate from the Chief Executive for overseas lawyers participating in a national security case, then the Committee for Safeguarding National Security Committee shall intervene and make a judgment following Article 14 of the National Security Law.
Other than that, Pang said the Committee had no other powers, including advising the Immigration Department to refuse Own a visa approval.
Pang believed the Department of Justice’s claim that it was stated clearly in the National Security Law that “decisions by the National Security Committee are not subject to judicial review” unless the decision was based on something beyond its jurisdiction. The court then should be able to intervene.
Pang also questioned that if no one can challenge any of the Committee’s decisions, the Committee would be more powerful than the chief executive.
National Security Committee Untethered By Judicial System
Yuen Kwok-keung, a former Secretary for Justice and the senior barrister representing the government criticized Pang Yiu-hung’s interpretation of the National Security Law as “entirely wrong.”Yuen stressed, “The National Security Law protects human rights and the rule of law. The work of the Committee For Safeguarding National Security is not subject to interference from any organizations, groups, or individuals in Hong Kong.”
In other words, since the committee is not supervised or governed by any Hong Kong personnel or institutions, any decisions it may make are exempt from judicial review.
Yuen added that Hong Kong courts had no jurisdiction over national defense or foreign diplomacy, similar to the courts of the United States and Australia, which are also subject to local constitutional restrictions.
Yuen quoted the director of the Hong Kong and Macao Affairs Office, Xia Baolong’s speech in January, that the National Security Law was a dual-executive mechanism, with the primary responsibility of the National Security Committee to maintain the national security of China, authorized by the Beijing Government.
On the other hand, he continued, the national security law is a law of Hong Kong connected to foreign affairs; it goes beyond Hong Kong’s autonomy. Therefore Hong Kong courts cannot conduct judicial reviews of the NSL.
Chief Judge of the High Court, Jeremey Poon Siu-chor, asked the prosecution whether advising the immigration department on Owen’s visa was a part of the Committee’s duty.
Yuen agreed.
After listening to both sides, the chief judge postponed the ruling and announced the verdict a month later.
On Dec. 10, 2022, Lai was found guilty of fraud, sentenced to five years and nine months, and fined HK$2 million. Lai was also banned from acting as a company board director for eight years.
Sanction Hong Kong Chief Executive
On April 24, the All-Party Parliamentary Group on Hong Kong released a report, Media Freedom in Hong Kong: the case of Jimmy Lai and Apple Daily.The report concluded that Lai’s case drew a picture clearly of the Hong Kong government’s weaponizing the NSL.
The report highlighted the diversity of media in Hong Kong had eroded, with almost all the independent media companies being shut down by the regime.
The national security police arrested the people who owned, backed, or managed those companies and accused them of having political motives.
The report on media freedom urged the British government to pressure the Hong Kong government to release British citizen Jimmy Lai Chee-ying immediately; it condemned the Hong Kong government for preventing Lai from choosing his legal representative to protect and ensure his right to a fair trial.
In addition, the report also called on the UK government to impose sanctions targeting individuals involved in the arbitrary detainment of Lai and the shutdown of Apple Daily, including Hong Kong Chief Executive John Lee Ka-chiu.
The case is ongoing as of April 30.
Case no. : HCMP253/2023、HCAL566/2023
