Court of Final Appeal Approves Admission of King’s Counsel in Jimmy Lai’s National Security Case

Chief Executive calling for CCP's interpretation regarding NSL, CCP's HK media pushing for reform of judicial system

Media mogul Jimmy Lai, founder of Apple Daily, arrives at the Court of Final Appeal, for hearing an appeal by the Department of Justice against the bail decision of Lai, in Hong Kong, on Dec. 31, 2020. Tyrone Siu/Reuters

On Nov. 28, the Court of Final Appeal (CFA) of Hong Kong ruled against the Department of Justice (DoJ) of the Hong Kong government after the department filed its fourth attempt to block Tim Owen-the British King’s Counsel (KC) from being hired by Jimmy Lai Chee-ying, the founder of Next Media.

The result is not satisfactory to the pro-Beijing politicians and mouthpieces.

Later on the same day, Chief Executive John Lee said to the press that relevant cases would be submitted to the central government and suggested that the NPC’s standing committee make a ruling concerning the “Hong Kong National Security Law” to clarify the relevant issue, that is, whether a lawyer or barrister “without local qualification” can handle cases involving “endangering national security.”

On Nov. 25, when the case was being heard, several Chinese Communist Party (CCP) mouthpieces in Hong Kong joined in and seemingly put pressure on the CFA, with threats amounting to “reform” Hong Kong’s judicial system if the CFA refused DoJ’s final appeal.

The Court of Final Appeal: The New Point Submitted Not Permitted on Appeal

In the Court of Final Appeal’s decision, it decided that since the Secretary for Justice (SJ) raised a new point that had not been presented before to the Chief Judge or the Court of Appeal, the Appeal Committee (AC) held that the SJ had not made a proper case for the granting leave to appeal and so dismissed the application.

The AC also mentioned that it should be noted that the Hong Kong courts were fully committed to safeguarding national security. In the present case, however, the SJ had fundamentally changed his case only at the stage of seeking leave to appeal to the Court of Final Appeal, and he had raised undefined and unsubstantiated issues said to involve national security, which was not mentioned or explored in the lower courts, and no appropriate basis had been made out for the granting of leave to appeal.

The Fight of Two Legal Systems

Different from the mainland, Hong Kong has retained common law and equity as its legal system, like those of the British and American, even after the transfer of sovereignty to China in 1997.

Nevertheless, 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.

Chief Executive John Lee said to the press today that the considerations for the submission to NPC’s standing committee for interpretation include that “the NSL overrides local laws in Hong Kong.”

Local Party Media Proposes to ‘Decolonize’ HK’s Judicial System

On the front-page headline of local party media Ta Kung Pao on Nov. 25, it stated and seemingly put pressure on the court, claiming that the CFA has the responsibility to veto Jimmy Lai’s appointment of a British barrister. In its editorial of the same day, titled “The court has the responsibility to safeguard national security,” it repeated the same rhetoric claiming, “all walks of life in HK earnestly anticipate” the court can make a judgment ”in favour of safeguarding national security.”

Another local party media, Wen Wei Po, said in an editorial that “the judiciary has the constitutional responsibility to safeguard national security” and then hinted at opening the way for the CCP’s rubber stamp legislature to interpret the law to solve the problem if needed. It also tried to justify such a view by using interviews with a number of pro-CCP legal personnel and linking the incident entirely to ”colonial culture.“ In conclusion, it indicated that the Hong Kong government needs to review all existing laws and even the entire judicial system to ”decolonize“ to ”safeguard national security.”

Commentary: All Views Just to Pin Jimmy Lai with the Anti-Extradition Movement

Simon Li (pen name), a current affairs commentator, said in an online program “Precious Dialogues” that the only reason for the pro-establishment camp to voice their opposition, in this case, is that if they do not stand up in opposition to anything, “they might receive an adverse assessment from above [the CCP].” By doing so, they can show their allegiance to the preaching once advocated by Chairman Mao, that is, ”I oppose whatever my enemy supports.” Li further pointed out that the CCP would also like to achieve an effect this time, which is to make Lai seen as betrayed by all his close companions. When that is realized, his former colleagues will be more willing to come forward and testify against him.

Ng Chi-sum, a senior media person, pointed out in his online program that if we need to look at the issue of nationality and “loyalty,” we should not just limit that to the lawyers in representation but also the nationality of the judges. He also questioned the real motives pursued by the pro-establishment camp. Are they also targeting the complete abolition of the non-permanent judges’ system?

He went on to point out that no one has ever raised or interfered with the nationality of the defence lawyers in the past. But now the pro-establishment camp, out of fear that the CFA judges might, as an excuse to “maintain the integrity of Hong Kong’s judicial system,” return a verdict contrary to what they prefer, is trying their best to apply political pressure beforehand. The writing on the walls seems to be, “it is better for us to exercise self-discipline, and by vetoing Lai’s hiring of a British KC, then we can avoid the rubber stamp legislature in Beijing the need to re-interpret the law again.” Ng doubted a verdict derived from that would be any good at all to preserve the integrity and independence of Hong Kong’s judicial system.

Ng also cited the case of Tong Ying-kit, the debutant case of the NSL in HK, as an example. Tong was represented by Clive Grossman, SC, who was born in the UK and holds a British passport, but there were absolutely no voices at that time questioning his nationality and eligibility. On the contrary, there is now a sudden “overwhelming” opposition to Lai’s case. The reason is crystal clear, Tong is a “persona inconnu (unknown person),” while Lai is labeled the “prime culprit” of the anti-extradition movement within the mindset of the pro-establishment camp, someone that warrants to be treated as “the final destiny” whenever possible.

DoJ Representative Asked by Judge if He had ‘Forgotten’ Basis of HK Law

In the trial on Nov. 25, Rimsky Yuen Kwok-keung, who represented the Department of Justice against Jimmy Lai’s appointment of a British King’s Counsel (KC), was repeatedly questioned by the judges on the sufficiency of the reasons he delivered.

Yuen claimed in court that Tim Owen lacked an “understanding of China’s national security,” criticizing him for not having the professional acumen or advocacy experience related to the “Hong Kong National Security Law,” so is unable to make a significant contribution to the case. He claimed that someone with knowledge of China’s national security background should be a better barrister for national security law cases.

Yuen also pointed out that this is the first National Security Law case in which an overseas lawyer is appointed to represent the defendant.

However, permanent Judge Roberto Ribeiro pointed out that the “Hong Kong National Security Law” still must operate within the judicial framework of the Hong Kong legal system and asked whether Yuen has “forgotten” the latter. Judge Ribeiro believes that the court should not take the “one-size-fits-all” approach to refusing overseas lawyers to come to Hong Kong but should take each case individually according to the circumstances. If, as Yuen said, the court can only approve overseas lawyers to participate in the “Hong Kong National Security Law” cases under exceptional circumstances, that will be a violation of all precedents, and the courts will somehow lose their usual discretionary powers.

Overseas Barrister Participation is Beneficial to the Development of NSL and Jurisprudence

Chief Justice Andrew Cheung Kui-nang pointed out that the Court of First Instance and the Court of Appeal of the High Court have considered the normal criteria for overseas barristers to apply for “ad hoc admission,” indicating that overseas barristers should join the case to help the development of the jurisprudence of the NSL.

However, Yuen emphasized that the “Hong Kong NSL” originated from the mainland’s criminal law, and unless overseas lawyers are familiar with both the mainland and Hong Kong legal systems, the statements they make may be “dangerous” or even “counterproductive.”

Robert Pang Yiu-hung, the senior counsel representing Jimmy Lai, retorted that he is also a HK lawyer and not too familiar with mainland law. He also said that the DoJ only focuses on “one country” within “one country, two systems” but forgets that “two systems” allow overseas lawyers to deliver interrogation assistance in Hong Kong courts. He also pointed out that overseas lawyers can use their experience in other jurisdictions to assist HK courts. Tim Owen has extensive experience in human rights law and can provide assistance as the case involves the relationship between freedom of speech and national security.

Judge Questioned About ‘State Secrets’ Being Raised Again

Yuen also responded to the Court of Appeal’s previous ruling that “state secrets” were not involved in this case. He mentioned that while the court could decide on not arranging a jury or not disclosing part of the proceedings to manage cases involving “state secrets,” it should also take the initiative to provide guidance in deciding whether overseas lawyers can take part or not.

When the Court of Appeal earlier rejected the appeal application of the DoJ, it pointed out that the case did not involve allegations of state secrets and that the DoJ failed to persuade the court how and why hiring an overseas barrister would undermine the legislative purpose of the NSL. It also pointed out that overseas lawyers are also bound by their local professional codes and ethics. It was on this basis it decided not to grant its application for leave to appeal there.

Justice Ribeiro disagreed with what Yuen said earlier, that the court has taken all “Hong Kong NSL” cases extremely seriously, and he also questioned whether the case involved “state secrets.”

Yuen again claimed that although the case does not involve state secrets, it is unknown whether the defence will add new evidence in due course. Justice Cheung responded that it is difficult for the court to know beforehand whether there is new evidence. If the DoJ wants to ban all overseas lawyers from handling NSL cases, it should list the circumstances under which the application for overseas lawyers can or cannot be approved.

Case number: FAMV591/2022