‘CASES COULD GO TO MAINLAND IF NO LOCAL LAWYER’
But Tam Yiu-chung says it is unlikely defendants will fail to secure representation in HK if Beijing bans involvement of overseas legal professionals
Hong Kong’s national security cases can be handed over to mainland courts if Beijing decides to ban overseas lawyers from arguing in the legal proceedings and defendants are unable to hire local practitioners, a political heavyweight has said.
Tam Yiu-chung, Hong Kong’s sole delegate to China’s top legislative body, the National People’s Congress (NPC) Standing Committee, also said yesterday that the Immigration Department could consider refusing to issue or renew the work visas of overseas lawyers if they were coming to the city to represent defendants in national security cases.
Chief Executive John Lee Ka-chiu last week asked Beijing to interpret the national security law after the top court upheld a decision to allow British barrister Timothy Owen, a king’s counsel, to defend media tycoon Jimmy Lai Chee-ying against charges of collusion with foreign forces.
Lee said he would recommend the standing committee interpret the national security law, based on its legislative intent and purpose, to decide whether solicitors or barristers who did not practice generally in Hong Kong should be allowed to argue cases that involved the national interest.
Asked what would happen if Beijing banned foreign lawyers from representing defendants in national security cases and a defendant was unable to hire local lawyers, Tam said: “If we face this situation, then let’s transfer the case to the mainland.”
Asked whether this would be unfair for the defendants, Tam replied: “It won’t be a problem, because the transfer mechanism is already written in the law.”
Under Article 55 of the national security law, a case can be transferred to the mainland under three circumstances – it is complex because of the involvement of foreign elements; a serious situation has occurred and the Hong Kong government is unable to effectively enforce the law; and a major and imminent threat to national security has taken place.
Tam later told the Post that he was not trying to add new rules to Article 55.
“If someone really struggled to hire a local lawyer, authorities should look into why no local lawyer is willing to take this case. Maybe it’s because the case is too complex because of the involvement of foreign elements, then the national security office can refer it to the mainland,” he said.
Tam also said later in public he believed the likelihood of those accused in a national security case failing to get a city lawyer was slim.
A source also told the Post that given the prominence of Lai’s case, the central government wanted to minimise any risk and make sure that it was handled properly in Hong Kong first.
Tam said if Beijing issued an interpretation, no exceptions should be made for defendants to hire foreign lawyers, or it would make the central government’s decision hard to implement.
A separate source earlier suggested that Beijing could consider the option of identifying a group of designated lawyers to handle national security cases in Hong Kong. But Tam believed that “technical difficulties” would make this option unlikely to be decided on in the standing committee’s next meeting, expected to be held by the end of this month.
He said that apart from relying on the standing committee’s interpretation, there were other ways to ban foreign lawyers.
“I saw from the news that the British barrister’s work visa has expired … If the immigration director refuses to [extend or issue] visas, the barrister cannot go to court, right? I’m not sure if this could be a solution too, as you may say that this would not solve the problem completely,” Tam said. He was referring to the Immigration Department’s refusal of Owen’s application to extend his temporary stay in the city. The department has declined to comment on individual cases.
Senior Counsel Ronny Tong Ka-wah, who also sits on the Executive Council, declined to comment on Tam’s suggestions.
But he highlighted that Article 55 laid out specific situations where the mainland authorities could exercise jurisdiction over a national security case and that Article 45 of the law also said the Hong Kong courts should handle prosecutions for offences endangering national security.
Tong also said it would be unlikely a defendant would be unable to find a suitable local practitioner as there were over 1,500 barristers in Hong Kong.
He added the immigration authorities had an established mechanism for handling arriving travellers for visits or for work.
“If an overseas lawyer has got approval by the court, he should be able to come in,” Tong said.
Professor Simon Young Ngaiman, an associate dean of the University of Hong Kong’s law faculty, said: “We are now hearing so many different and impractical ways of dealing with the issue.
“I cannot but feel that panic, fear and loathing has overtaken sense and rationality. There needs to be a clear appreciation of the precise concern. Only then can a targeted and proportionate response be framed.”
Professor Johannes Chan Man-mun, an adjunct professor in the same university’s law faculty, questioned Tam’s reasoning. “If a defendant cannot hire a local lawyer to represent them, they should be deprived of the right to be heard by the local court. Is that the logic?” he asked.