The national security trial of Jimmy Lai Chee-ying, founder of Apple Daily, has finally been put on a more logical basis following the decision earlier this month by the Hong Kong Special Administrative Region’s court to further adjourn it until September next year.
This second adjournment of the case is to allow time for an interpretation of the National Security Law for Hong Kong by the Standing Committee of the National People’s Congress on whether an overseas lawyer should be allowed to take part in a national security trial. The trial was initially set to commence this month but was postponed by the court because the HKSAR’s chief executive had submitted a request for an interpretation of the NSL by the NPCSC.
The legal controversy surrounding this NSL case before its actual hearing pertains to the legitimacy of Lai hiring King’s Counsel Timothy Owen — who is from Britain, and who is not qualified to practice as a lawyer in Hong Kong — to defend him in the hearing.
The government has repeatedly appealed against the local court ruling to allow the King’s Counsel from the UK to participate in Lai’s trial, a petition lodged on the basis of queries concerning the professional status of overseas lawyers who do not have full and recognized qualifications from Hong Kong authorities to serve in the HKSAR’s courts.
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Representing the HKSAR government in this national security case, former secretary for justice Rimsky Yuen Kwok-keung and senior counsel Jat Sew-tong attempted to appeal to the Court of Final Appeal against a High Court ruling that allowed for the involvement of Owen.
On Nov 28, the CFA rejected the request to grant leave for an appeal to the CFA, citing that the Department of Justice had changed their supporting arguments when their appeal was received by the CFA, and these changes had not been mentioned or explored in lower courts.
As pointed out by the chief executive, there is as yet no effective means to ensure that a counsel from overseas will not have a conflict of interest for nationality considerations if allowed to participate in a national security case
Stressing the top court’s “full commitment” to safeguarding national security, the CFA handed down its verdict despite the government counsel’s concerns over the ability to enforce confidentiality obligations with overseas lawyers, and the lack of a guarantee in binding foreign counsels to protect state secrets.
An announcement of the submission of an interpretation request to the NPCSC by Chief Executive John Lee Ka-chiu came hours after the CFA passed its judgement upholding the High Court’s decision to allow Lai to employ Owen to represent him in the trial.
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The government said that the chief executive had, in his report to the central authorities, requested a NPCSC interpretation “based on the legislative intent and purpose of the NSL”, whether an overseas lawyer or counsel who is not qualified to practice generally in Hong Kong can participate by any means in a trial for offenses endangering national security.
Lee gave assurances that seeking an interpretation by the NPCSC had nothing to do with the lawyer’s nationality, and only concerned the question of whether legal personnel who have not attained the right to practice in Hong Kong can work on NSL cases.
At Lai’s court hearing earlier this month, the court agreed to a second adjournment while awaiting the anticipated NPCSC interpretation. After an in-depth assessment of the court’s diary and of the practical circumstances surrounding Lai’s case, a new hearing date was set for Sept 25. The trial is expected to last around 40 days. The judges said the trial date will not be changed again.
Given the cardinal importance of the NSL and its overriding status in Hong Kong, it is surprising that protracted arguments have cropped up over the issue at stake.
As pointed out by the chief executive, there is as yet no effective means to ensure that a counsel from overseas will not have a conflict of interest for nationality considerations if allowed to participate in a national security case.
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Similarly, there is no means to ensure that an overseas counsel would not be vulnerable to coercion, compromise or control by foreign governments, associations or persons.
On this crucial possibility, memories are still fresh of the stern criticism raised in January last year by then-secretary for justice Teresa Cheng Yeuk-wah against “a phenomenon of growing interference in the independent operation of legal professions in Hong Kong and Britain” after the decision by distinguished British Queen’s Counsel (now King’s Counsel) David Perry to quit the trial of nine Hong Kong people on charges of participating in an unlawful assembly in 2019.
Perry decided to withdraw from his role to lead the prosecution in this lawsuit only days after the then-British foreign secretary stigmatized him as “mercenary” for taking on the task. This is indeed a striking lesson to remember, especially in the judicial proceedings of cases with far-reaching impact.
Apart from examining the question over the appointment of overseas lawyers for a defense role in national security trials, the NPCSC might find it worth spending time to evaluate the effectiveness in the implementation of the NSL in the HKSAR with a view to tying up any loose ends in the legislation. Without doubt, the city’s stable and prosperous future relies on a smooth enforcement of the NSL.
The author is a member of the Chinese Association of Hong Kong and Macao Studies.
The views do not necessarily reflect those of China Daily.