HKSAR govt asks for law interpretation on ruling that allows overseas lawyer to represent Jimmy Lai
Published: Nov 28, 2022 11:16 PM Updated: Nov 28, 2022 11:13 PM
Jailed Apple Daily founder Jimmy Lai Photo: VCG

Jailed Apple Daily founder Jimmy Lai Photo: VCG

Hong Kong's top court rejected an appeal by the Department of Justice (DOJ) to overturn the permission to allow a UK barrister to represent Jimmy Lai, the imprisoned owner of Next Digital Media, in an upcoming national security trial, which is seen as a disappointing result.

Local officials and legal experts called for the interpretation of the national security law (NSL) for Hong Kong as allowing overseas lawyers in national security cases was inappropriate and risked leakage of national secrets.

Hong Kong Special Administrative Region (HKSAR) Chief Executive John Lee said on Monday that he has submitted a report to the central government, mentioning the case of Lai, suggesting that the National People's Congress (NPC) Standing Committee should interpret the NSL for Hong Kong to clarify whether a lawyer without local full qualifications can handle national security cases.

Three judges of the Court of Final Appeal refused on Monday the DOJ's appeal against a lower court's earlier decision of allowing London-based King's Counsel Timothy Owen to join Lai's defense team, which was also the last chance for the HKSAR government to renounce the decision of allowing a foreign lawyer to represent him, as the trial is scheduled to begin on December 1.

Lai, 74, will stand trial before a panel of three High Court judges on two counts of conspiracy to collude with foreign forces and a similar charge of collusion under the NSL for Hong Kong, according to local media reports. His lawyers hired the British barrister in early August and the Chief Judge of the High Court Jeremy Poon Shiu-chor approved in October Lai's bid to hire Owen in his national security trial, media reports said.

Before Monday's ruling, a number of Hong Kong-based law professionals reached by the Global Times expressed concern over hiring a foreign lawyer in a national security trial, which goes against the aim of the establishment of the NSL for Hong Kong and leads to controversy. Especially, allowing an overseas lawyer to get involved in a national security case risks national secrets leakage.

Lee mentioned during a press conference on Monday that one of the reasons for the suggested interpretation of the NSL for Hong Kong is that the HKSAR has no effective way to exclude overseas lawyers or barristers when they have their own national interests, which could result in conflicts of interest. There's no effective way to ensure that those lawyers are immune from the influence of foreign governments, organizations or individuals, such as in terms of coercion and manipulation.

Also, there's no effective way to ensure that those lawyers to comply with the confidentiality requirements of state secrets, business secrets and personal privacy known to the practice activities under the Article 63 of the NSL for Hong Kong, Lee said.

Following the suggestion of Lee for the interpretation of the law, a spokesperson of the State Council's Hong Kong and Macao Office said a local court in Hong Kong approving Lai's defense team to hire a UK barrister goes against the regulations concerning the administration, legislative and judicial authorities shall effectively prevent, stop and punish acts and activities endangering national security in accordance with the law, which also violates the legislative spirit and legal logic of the NSL for Hong Kong.

The central government will fully support the HKSAR to assume its responsibilities and take necessary measures to prevent and resolve various hidden risks endangering national security, the spokesperson said. It should ensure the NSL for Hong Kong will be fully implemented correctly and national security will be effectively safeguarded.

Tam Yiu-chung, a member of the NPC Standing Committee from Hong Kong, told the Global Times on Monday that he is disappointed with the ruling by the Court of Final Appeal. "Allowing overseas lawyers to take part in such an important national security case is completely inappropriate, and it would also not be allowed in foreign countries," he said.

The purpose of the establishment of the NSL for Hong Kong was to safeguard national security, and its top priority is not letting anyone take advantage of or endanger national security in any form under the One country, Two systems, Tam said. "The involvement of overseas barristers breaches the original intent of the legislation, which could cause problems such as national secrets leaks or foreign interference.

"If the situation is not changed, there is no other way except for the NPC standing committee to interpret the NSL and make adjustments," he said.

The power of interpretation of the NSL for Hong Kong shall be vested in the Standing Committee of the NPC, according to Article 65 of the law.

"The NSL for Hong Kong concerns national interest and should prevail local judiciary," Chu Kar-kin, a veteran current affairs commentator based in Hong Kong and a member of the Chinese Association of Hong Kong and Macao Studies, told the Global Times on Monday.

If foreign legal practitioners are engaged in representing clients in court proceedings in relation to national security or related criminal offenses, sensitive and classified materials may be disclosed and displayed during the evidence discovery and cross-examination stages, which will jeopardize national security, he said. "The judiciary should play a key role to ensure the proper play of the NSL."

Louis Chen, member of the Election Committee and general secretary of the Hong Kong Legal Exchange Foundation, told the Global Times on Monday that the jurisprudence and value of the NSL for Hong Kong should be carried out in accordance with the understanding of Chinese language.

"Chinese culture is broad and profound, and foreign lawyers have a gap in understanding Chinese, and there must be a greater gap in understanding the law," he said. "But I believe that the DOJ will definitely continue to take corresponding actions to make corrections in accordance with the error correction system of the Hong Kong judiciary."

Some legal experts said that the interpretation of the NSL for Hong Kong by the NPC Standing Committee is clarifying the defense qualifications of overseas lawyers instead of targeting locally registered foreign lawyers, as there's no punishment mechanism for overseas lawyers on secret leakage.