BEIJING ‘MAY SET UP POOL OF LAWYERS FOR CASES’
Move would go beyond city’s request for the top legislative body to interpret law to shut out overseas counsel in sensitive trials, source says
Beijing could consider the option of identifying a group of designated lawyers to handle national security cases in Hong Kong, going beyond the local government’s request for the country’s top legislative body to shut out overseas counsel unless they are based in the city, according to sources.
A day after Hong Kong’s top court rejected a bid by the government to overturn an earlier decision allowing a British barrister to defend media tycoon Jimmy Lai Chee-ying in his national security trial originally scheduled to start tomorrow, the justice department asked the High Court for a seven-day adjournment, the Post has learned.
“The Hong Kong government can make its recommendation, but the National People’s Congress [NPC] Standing Committee has the power to make a final decision, which can be different from the recommendation, based on its own deliberations and national interest,” an official source from the mainland told the Post yesterday.
“We are determined to make the intent of Hong Kong’s national security law as clear as possible so that there will be fewer problems handling national security cases going forward.”
The source said the interpretation was expected to focus on Chapter 4 covering case procedures, but declined to name the specific clauses that could be amended.
The Beijing-imposed law only requires cases be heard by a pool of designated judges hand-picked by the city’s leader, and no restrictions are made on the types of lawyers who can represent defendants.
Chief Executive John Lee Ka-chiu asked the central government to intervene after the Court of Final Appeal rejected arguments by the justice department that British King’s Counsel Timothy Owen not be allowed to defend Lai against charges of foreign collusion and sedition, which could land him in jail for life. Prosecutors argued the involvement of overseas lawyers in national security cases could compromise state secrets.
The mainland source added the NPC Standing Committee had the option to call an interim meeting to tackle the interpretation ahead of its regular session on December 30.
But Hong Kong’s sole delegate to the apex legislative body, Tam Yiu-chung, cast doubt on the feasibility of holding such a meeting within seven days. He was also sceptical that Beijing would ultimately choose to approve a small circle of lawyers for national security law cases, calling it “very controversial and hard”. Instead, the Standing Committee was likely to keep its decision in line with the scope of Lee’s request, he added. “I believe when the chief executive made his suggestion, he did his research on the feasibility and rationale, and with support from the central government,” he said.
The justice department yesterday said it had written to the Court of First Instance requesting Lai’s trial, scheduled to begin tomorrow, be adjourned.
According to a local source, the length of the adjournment sought is seven days and the court is expected to deal with the matter at a hearing tomorrow.
Lee yesterday stressed the proposed interpretation would only target lawyers registered overseas, not foreign ones listed in Hong Kong.
“If you are not a lawyer who does not have full rights to practise in Hong Kong, you don’t fall under this category,” he said.
Lai, founder of the nowdefunct Apple Daily tabloid newspaper, has been detained for alleged national security offences since the end of 2020, just months after Beijing imposed the new law, although he was jailed for 14 months in May last year over his role in illegal protests.
In a rare move, the judiciary commented on an ongoing legal case, saying on Monday night: “The judiciary respects the chief executive’s proposal to ask the NPC Standing Committee for an interpretation of relevant provisions of the national security law to clarify issues.”
The two main bodies representing the city’s barristers and solicitors also weighed in on Lee’s decision. Bar Association chairman Victor Dawes noted that while the standing committee was entitled to interpret the legislation under Article 65 of the national security law, he hoped the power would be used sparingly.
“The exercise of such power will inevitably attract discussions and criticisms of our legal system. The national security law is a relatively new piece of legislation and we hope that any ambiguity can be clarified by our courts in the future and the power to interpret … be exercised sparingly,” he said.
He also dismissed suggestions that banning overseas barristers would undermine defendants’ rights and freedom in legal representation, saying there were sufficient lawyers in the city to handle national security cases.
Law Society president Chan Chak-ming said he was mindful that generally, legislative interpretations by the standing committee could affect perception of the common law system.
“The bedrock to the rule of law in Hong Kong encompasses the trust and confidence of the public and the international community towards our judges and the judicial and legal systems,” he said, adding he had full confidence in the independence and role of the city’s courts and legal systems.
The exercise of such power will inevitably attract … criticisms of our legal system
VICTOR DAWES, BAR ASSOCIATION CHIEF