LEE ASKS BEIJING TO INTERPRET LAW
Chief executive seeks review after top court rules British barrister can defend tycoon Jimmy Lai in collusion trial that is now likely to be adjourned
Chief Executive John Lee Ka-chiu has asked Beijing to interpret the city’s national security law after the top court upheld a decision allowing a British barrister to defend media tycoon Jimmy Lai Chee-ying against charges of collusion with foreign forces.
The State Council’s Hong Kong and Macau Affairs Office also weighed in, saying the court ruling had violated “the legislative spirit and legal logic” of the national security law. Beijing’s national security office in the city also backed Lee’s move.
Hours after the ruling by the Court of Final Appeal, Lee said the secretary for justice would seek an adjournment of Lai’s national security trial, which was scheduled to begin on Thursday.
He would recommend the Standing Committee of the National People’s Congress interpret the national security law, based on its legislative intent and purpose, to decide whether solicitors or barristers who did not practise generally in Hong Kong should be allowed to argue cases concerning national interest, Lee said.
“At present, there is no effective means to ensure that a counsel from overseas will not have a conflict of interest because of his nationality,” he said. “There is also no means to ensure that he has not been coerced, compromised or in any way controlled by foreign governments, associations or persons.”
Lee said foreign officials had openly interfered with professionals from the legal and commercial sectors in the past.
“Foreign countries and foreign forces are hostile to the implementation of the national security law in Hong Kong,” he said. “As external interference continues, we need to be more alert to national security risks.”
It was impossible to ensure that overseas lawyers would comply with Article 63 of the national security law requiring them not to divulge state or commercial secrets, or personal details of the case, he argued.
“Based on these risks, will allowing overseas lawyers or barristers to take part in national security cases be in line with the legislative intent of the national security law?” he said.
Lee revealed he had received a request from Beijing on Sunday for a report documenting the implementation of the national security law over the past two years.
Lee brushed aside concerns his move would damage the city’s legal reputation, saying defendants involved in national security crimes were still free to choose lawyers who were fully qualified in Hong Kong.
Asked whether Secretary for Justice Paul Lam Ting-kwok, who failed to win the case in the city’s courts, should be held accountable, Lee defended his contributions.
The three Court of Final Appeal judges yesterday cited technical grounds in dismissing the secretary for justice’s lastditch attempt to overturn the permission granted to Londonbased Timothy Owen, a king’s counsel, to join Lai’s defence team.
But Chief Justice Andrew Cheung Kui-nung, and justices Roberto Ribeiro and Joseph Fok, left open the overarching question of whether legal practitioners from abroad should in principle be excluded from national security cases.
The bench said justice minister Lam had failed to justify the “radically new points” he raised during his latest appeal, which had not been examined factually nor canvassed in argument by the lower courts.
Allowing such grounds to be advanced in the top court would go against a legal doctrine set down in 2002, and undermine the fairness of the proceedings, the judges said. The court said the minister’s call for a general ban on overseas counsel taking up legal work involving matters of national security gave rise to a host of questions that had not been scrutinised.
The bench noted Senior Counsel Rimsky Yuen Kwokkeung, a former justice secretary representing Lam, had declined to indicate what “exceptional circumstances” would justify foreign lawyers’ involvement in national security cases.
The secretary’s contention that the participation of overseas counsel would “tend to defeat” the aim of countering interference by foreign or external forces also lacked evidence, the court said.
“The [secretary for justice] has fundamentally changed his case only at the stage of seeking leave to appeal to this court, raising undefined and unsubstantiated issues said to involve national security which were not mentioned or explored in the courts below. No appropriate basis has been made out for the grant of leave to appeal,” the judgment said.
Lai, 74, is scheduled to be tried before a panel of three High Court judges starting on Thursday on two counts of conspiracy to collude with foreign forces and one similar charge of collusion under the national security law. He also faces a sedition charge under colonial-era legislation. He has been remanded in custody since December 2020.
Tam Yiu-chung, the city’s sole delegate to the National People’s Congress Standing Committee, supported the decision to seek an interpretation of the law, adding the regular meeting scheduled for next month “seems to be a suitable time for interpretation”.
But Professor Johannes Chan Man-mun, former law dean of the University of Hong Kong, questioned the legal ground for such a course. “The interpretation is in practice making of a new rule rather than an interpretation of an existing law. There are far-reaching implications in any such interpretation which may severely compromise Hong Kong as an international city,” he said.
Chan called the support by pro-Beijing figures for an interpretation before the court had handed down its ruling “disturbing”. The advocacy for a particular view would only undermine the rule of law and public perception of judicial independence, he said.
There is no effective means to ensure that a counsel from overseas will not have a conflict of interest
CHIEF EXECUTIVE JOHN LEE