03 Jan 2023

Beijing overrules Hong Kong courts to allow authorities to bar British barristers from security law trials

Controversial ruling undermines integrity of Hong Kong’s legal system, critics claim

2020 May 18,Hong Kong.Hong Kong media tycoon and founder of Apple Daily newspaper Jimmy Lai Chee Ying arrives at the West Kowloon Magistrates' Court .

Jimmy Lai arrives at the West Kowloon Magistrates' Court in May 2020 Yung Chi Wai Derek; Shutterstock

Beijing has opened the way for British barristers to be banned from appearing in Hong Kong national security trials, effectively over-turning a ruling by the local courts.

The move raises further questions about the integrity of Hong Kong’s legal system following the imposition of the controversial national security law (NSL) in 2020, despite claims by the authorities that it will only affect a minority of foreign lawyers.

China’s National People’s Congress Standing Committee (NPCSC) ruled on Friday that the Hong Kong authorities — and not the courts — should be responsible for determining whether overseas barristers should be permitted to appear in prosecutions arising from the NSL.

The decision was sparked by the impending trial of media tycoon Jimmy Lai, who had requested that human rights KC Tim Owen, of London’s Matrix Chambers, be afforded ‘ad hoc admission’ to the Bar in order to represent him.

That request was granted by Hong Kong’s High Court and upheld by the Court of Final Appeal in the face of opposition by the Hong Kong Bar Association and the Department of Justice, which cited confidentiality and other security concerns. 

With leave to appeal refused, the Special Administrative Region’s (SAR’s) chief executive, John Lee, sought a ruling from Beijing on the interpretation of the NSL. Beijing handed Lee the power to decide whether a party should obtain a certificate from him before seeking an ad hoc admission and also granted the National Security Committee (NSC) the power to intervene, both avenues being free from judicial review.

“Overseas lawyers are still most welcome to participate in non [NSL] cases in Hong Kong,” Lee – an ex-senior policeman – told local media. “Whether a case involves national security matters is up to the assessment and judgement by the committee… in non-national security cases, [the] participation of overseas lawyers is not affected.”

Justice secretary Paul Lam SC led a vigorous defence of his campaign to prevent Owen from representing Lai, saying that allowing Lee to make the decision would not supplant the courts or undermine the rule of law.

However, Kevin Yam, a former Hong Kong-based commercial litigation partner at Kennedys, who left the SAR last year, maintained on Twitter that the interpretation ‘goes well beyond just the relatively narrow (but already worrying) issue of whether foreign lawyers can represent parties’. 

Yam said the ruling ‘destroys the entire integrity of Hong Kong’s legal system’ by allowing Lee, in litigation, and the NSC, in all other cases, ‘to rule by decree’.

Barrister and former HK legislative councillor Dennis Kwok, who is now resident in New York, tweeted that “the concept of national security covers everything from finance to energy, economy to cultural security”. 

The NSC, he added, “is now empowered to make legally binding decisions on all things [that are] national security related”.

Lai’s trial has been adjourned until September 2023. 

In March last year, the UK’s two Supreme Court representatives on Hong Kong’s Final Court of Appeal resigned, citing the Hong Kong administration’s departure from ‘values of political freedom and freedom of expression’.
 

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