Hong Kong’s leader John Lee has asked Beijing to rule on whether foreign lawyers can work on national security cases.
The request on Monday came after Hong Kong’s top court rejected a bid by the city’s Department of Justice to prevent a British barrister from representing jailed media tycoon Jimmy Lai.
The pro-democracy campaigner faces collusion charges in a landmark national security case that is due to begin on Thursday.
Speaking to reporters hours after the Court of Final Appeal issued its ruling, Lee said he would ask China’s National People’s Congress Standing Committee for an interpretation on the issue, and that it would be “appropriate” for the government to seek a delay to the start of Lai’s trial.
Lee’s move would be 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 guaranteed judicial independence from Beijing.
“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. “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.”
Lee also said there was no means of ensuring a foreign lawyer would not divulge state secrets that might emerge during a national security trial.
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.
The lawyer in Lai’s national security case is Timothy Owen, 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.
Apart from having overseas judges in the city’s courts, lawyers from other common law jurisdictions can work within the city’s legal system, especially when their expertise is needed for some cases.
Hong Kong’s Department of Justice, however, has made repeated attempts to block Owen from representing Lai.
Last month, the lower court granted the approval for him 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 in Lai’s case.
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