Outsourced Lawyers Acting for Hong Kong Government Must Observe National Security Law

The Hong Kong Department of Justice requests Briefed Out Counsel to sign confirming their role in safeguarding National Security Law (NSL) and observing confidentiality requirements. Scholars criticized this as bringing owls to Athens. Adrian Yu/The Epoch Times

As a former British colony, Hong Kong has always inherited the traditional British judicial system; however, since passing the National Security Law (NSL) in 2020, there has been an unprecedented change to the city’s long-cherished judicial independence. In addition to appointing designated judges for sensitive national security cases and cancellation of the jury at the national security trials, even the briefed-out counsels (private practice lawyers engaged by DOJ to assist with prosecuting cases) must agree to observe the NSL.

On Nov. 21, the Hong Kong government (HKgov) unexpectedly requested all government’s briefed-out counsels (on their list) to sign a letter to confirm their compliance with the National Security Law (NSL) and ensure no conflicts of interest occur in the cases assigned to them. As well as observing the confidentiality requirements, the counsels are also asked to refrain from engaging in any activities that may be regarded as contrary to national security interests.

The DOJ has long been assigning cases to the Briefed-Out Counsel (BOC). However, the DOJ had recently objected to allowing a media outlet founder Jimmy Lai, who was charged with violating the NSL, to hire a lawyer from the UK. But this was rejected by the high court on Nov. 9 when it decided to let the lawyer represent Lai. The DOJ lost the appeal and now files a case at the court of final appeal.

Although the private practice lawyer hired by Jimmy Lai is not the BOC hired by the DOJ. The incident still prompted considerable media attention.

DOJ is concerned whether the barristers representing defendants being charged with violation of NSL need to take an oath of obeying the NSL, and any conflict of interest that may be induced.

According to the letter issued by the DOJ obtained by the Sing Tao Daily, the DOJ requested the BOC to have no conflict of interest, which prevents them from acting for the DOJ in the cases assigned to them. The DOJ also quoted Article 6 of the NSL, which provides that any institution, organization, or individual in Hong Kong “shall abide by this Law and the laws of the Region in relation the safeguarding of national security, and shall not engage in any act or activity which endangers national security.”

It also reminded the BOC must not directly or indirectly in any way engage in an act or activity which possibly endangers national security. The letter also quoted the Official Secrets Ordinance and reminded the BOC not to disclose any instructions, data, or documents in relation to their cases.

The Epoch Times inquired the DOJ on Nov. 21 about the letter requesting the BOC to sign the agreement and its reason, and the approach once the BOC refuses to sign or violate the agreement. The DOJ replied that the BOC of the DOJ, like prosecutors, “must carry out their duty impartially without being affected by their political stance.” The DOJ has successively issued letters to “remind” the BOC, “to ensure their professionalism. It reiterated that the BOC, like prosecutors, must, as always, avoid conflicts of interest, keep case information confidential and abide by the provisions of the NSL, and ask them to make clear commitments in this regard.”

Scholars and Barristers Criticize the Letter as Unnecessary

Scholar Chung Kim-wah criticized in an interview with the Epoch Times on Nov. 21 that the DOJ was “bringing owls to the Athens.” He thought that the current civil procedure had already given sufficient power to the judge to designate the undisclosable case details and even prohibit the press from reporting any information involved in the trial. In addition, the Code of Conduct and Ethics for lawyers regulates the legal profession not to jeopardize the interests of all parties, violate court regulations, or disclose certain information according to professional requirements.

Barrister Stephen Char Shik-ngor said in an interview with Radio Free Asia on Nov. 22 that maintaining confidentiality is one of the duties of lawyers, and it is the responsibility of Hong Kong citizens to abide by the law, including the National Security Law. “Everyone is already doing what the letter said.” Char saw no necessity to issue the letter to the BOC.

Judge and Jury System Has Changed, Will Barristers be Next?

As a former British colony, Hong Kong has always inherited the traditional British judicial system under the common law system and implemented the jury system in trial cases. The judges should show no political or cultural bias when reaching verdicts. No one can judge whether someone is “right or wrong” before the court makes a judgment. Only under the “defensive system” can the judge judge “right and wrong” in the court.

Even after the handover of sovereignty, under the protection of “one country, two systems,” this has not been much changed.

However, since the Chinese Communist Party (CCP) implemented the NSL in Hong Kong in 2020, the cases related to NSL are all handled by designated national security law judges who are appointed by the Chief Executive, and the court upholds the decision for no jury at the national security trial.

After the implementation of NSL, 47 pro-democracy activists and opposition politicians were charged with conspiracy to commit subversion. 30 of them were not granted bail and have been adjourned until now for around two years. Their cases were transferred to the High Court in June.

However, New Hong Kong’s Secretary for Justice Paul Lam ordered a trial without jury in the case for the reason of protecting state secrets or the safety of jurors and their families.

Eric Yan-ho Lai, an analyst in Law in Hong Kong, told Voice of America that “The jury system of the Hong Kong High Court has always been an important guarantee to ensure that criminal cases are tried by due process and justice. The function of the no-jury trial clause in the National Security Law is to reduce the uncertainty of the outcome of the trial while the outcome is entirely determined by the judge selected by the Chief Executive. The government appears to be trying very hard to prevent any possibility of an unfavorable outcome in these national security cases.”

The barrister—another important role in the judicial system is given the right to appear in court. For more than 100 years, they have been required to uphold the spirit of the rule of law and justice and should represent the defendant “completely independently, fairly, and objectively.”

According to the website of the Hong Kong Bar Association, because of their specialization, barristers in Hong Kong develop the requisite skills to ensure that their client’s case is presented in the best light to the judge. The judge can only perform his or her function properly if he or she has the assistance of counsel to present the competing arguments for each side effectively and, finally, reach a verdict. It aims to ensure everyone is under legal protection.

However, the DOJ unexpectedly issued letters to listed BOC to request committing their obedience to NSL and warned them not to “engage in any act or activity which endangers national security.” with the maximum penalty of life imprisonment. The incident aroused concerns and doubts about whether the barrister could represent the defendant in a manner “completely independent, fair, and objective.”

There are about 1,600 barristers practicing in Hong Kong now. Among the barristers, there are about 100 Senior Counsel. Besides, some overseas King’s Counsels will be appointed to Hong Kong to appear in court for individual cases in the form of “Ad-hoc Admission.”

Originally BOC was Hired to Reduce Possible Perceptions of Bias

In 2015, the Secretary for Justice, Rimsky Yuen Kwok-keung, replied to the question from the member of Legislative Council that “as a matter of prudence, it is deemed appropriate to obtain independent outside counsel’s advice or services to address the possible perception of bias or issues of conflict of interest.”

DOJ Hired Former King’s Counsel but Changes its Tune Amid Jimmy Lai’s Dispute

The DOJ had always been hiring the King’s Counsel (formerly Queen’s Counsel) to handle the prosecutions.

However, since Jimmy Lai proposed to hire the King’s Counsel to represent him, the DOJ has objected to that many times. For example, Rimsky Yuen representing the DOJ, filed an appeal to the Court of Final Appeal to prevent Lai from being represented by Tim Owen, King’s Counsel of the United Kingdom. He pointed out that the contribution of lawyers from common law areas was limited as the National Security Law is stipulated by the mainland legal system. He added that it is difficult to supervise foreign lawyers once they leave Hong Kong, and it is also difficult to ensure that they will maintain confidentiality.

Pro-CCP Barrister Advocates Abolishing the BOC System

When Jimmy Lai disputed the DOJ decision of not allowing him to appoint a British King’s Counsel, the pro-CCP barrister Lawrence Ma Yan-kwok published an article on the CCP’s official media on Nov. 12, proposing to consider abolishing the BOC system to achieve Hong Kong’s “true judicial independence” and “develop a common law system that suits Hong Kong’s circumstances.”