Hong Kong’s leader John Lee has asked Beijing to rule on whether foreign lawyers can work on national security cases, after the territory’s top court rejected the government’s attempt to prevent a British barrister from representing jailed media tycoon Jimmy Lai.
Lee told a news conference on Tuesday that he expected China’s National People’s Congress Standing Committee (NPCSC) to make a ruling on the matter “as soon as possible”, but did not indicate whether the decision would come before the start of Lai’s trial on Thursday.
Lai, who headed the now closed pro-democracy tabloid Apple Daily, is facing a landmark national security trial and Lee said Hong Kong authorities were seeking a delay its start.
His request for Beijing’s intervention will mark only the sixth instance of China’s top legislative body weighing into legal matters in Hong Kong, a former British colony that, under a “one country, two systems” arrangement, is supposed to have judicial independence from Beijing.
The Court of Final Appeal on Monday dismissed the government’s bid to block British barrister Timothy Owen from the trial and impose a “blanket ban” on foreign lawyers working on national security cases.
But Lee argued that Beijing’s intervention was necessary in part because a foreign lawyer might divulge state secrets or be compromised by a foreign government.
“There is no effective means to ensure that a counsel from overseas will not have a conflict of interest because of his nationality,” Lee told reporters on Monday. “And there is also no means to ensure he has not been coerced, compromised or in any way controlled by foreign governments, associations or persons.”
Beijing imposed the sweeping national security law on Hong Kong in June 2020 after sometimes-violent protests rocked the city for months the year before. The legislation — which punishes acts of secession, subversion, terrorism, and collusion with foreign forces with up to life in prison — has been widely condemned by Western governments and human rights groups.
National security cases
Lai, one of the most prominent Hong Kong critics of China’s Communist Party leadership, including Xi Jinping, faces two counts of conspiracy to commit collusion with foreign countries, as well as a sedition charge linked to his Apple Daily newspaper that was forced to close in June 2021 after a police raid and a freeze on its assets.
The 74-year-old, who was arrested in December 2020, is already serving a 20-month prison sentence for his role in unauthorised assemblies. He is also expecting a sentencing over his fraud conviction next month.
Owen is a London-based legal veteran who specialises in criminal and human rights law.
Hong Kong uses the same common law jurisdiction as the United Kingdom.
Some legal experts warned the appeal to Beijing would erode public confidence in Hong Kong’s judicial independence.
“What we’ve seen with interpretations is basically, ‘Heads I win, tails you lose,” Alvin Cheung, an assistant law professor at Queen’s University in Canada, told the Reuters news agency.
Cheung was part of a group that drafted a legal analysis in May, signed by Britain’s former Justice Secretary Robert Buckland and retired Australian high court judge Michael Kirby, that identified NPCSC interpretations as one of the main threats to Hong Kong’s rule of law.
“The NPCSC is a political (and undemocratic) body whose proceedings take place behind closed doors, with no participation from the parties at suit. Its decisions are actuated by political considerations rather than legal evaluation and contain little to no reasoning,” the legal opinion read.
Apart from having overseas judges in the city’s courts, lawyers from other common law jurisdictions are allowed to work within Hong Kong’s legal system, especially when their expertise is needed for some cases.
Last month, the lower court granted approval for Owen to represent Lai, saying it was in the public interest to have an eminent overseas specialist involved at the trial. And on Monday, the Court of Final Appeal gave a final ruling on the matter, rejecting the Department of Justice’s application on technical grounds.
The panel of three judges on the top court — Chief Justice Andrew Cheung, Roberto Ribeiro and Joseph Fok — in a written judgement, criticised the Department of Justice for “raising undefined and unsubstantiated issues said to involve national security which were not mentioned or explored in the Courts below”.
But they left open the overarching question of whether barristers from overseas should in principle be excluded from national security cases.
Legal experts and rights groups on Monday expressed concern over Lee’s decision to ask Beijing to intervene.
Lee’s move “is in practice making of a new rule rather than an interpretation of an existing law,” said Professor Johannes Chan Man-mun, the former dean of the Faculty of Law at the University of Hong Kong. “There are far-reaching implications in any such interpretation which may severely compromise Hong Kong as an international city,” he told the South China Morning Post.
Reporters Without Borders also criticised Lee’s move, urging Hong Kong’s government to allow Lai a representation of his own choosing.
— RSF (@RSF_inter) November 28, 2022