China will be asked to rule on whether counsel can participate in national security law proceedings in Hong Kong, the Hong Kong government has announced.
Hong Kong’s chief executive, John Lee, said he would seek a ruling from Beijing following a ruling by the Special Administrative Region’s Court of Final Appeal on Monday.
The SAR’s apex court had upheld an earlier decision by the courts to allow Matrix Chambers barrister, Tim Owen KC, to represent former Apple Daily owner, Jimmy Lai, in his national security law (NSL) trial, which is due to begin onThursday.
Lai faces multiple charges under the NSL, including conspiracy to collude and collusion with foreign forces under the national security law, and one under colonial-era sedition law.
Addressing reporters, Lee said he was targeting overseas counsel with no right to practise in Hong Kong, as there was no effective means of being able to prevent any conflicts of interest between their nationality and Hong Kong.
He added there was 'no means to ensure that [they have] not been coerced, compromised or in any way controlled by foreign governments, associations or persons,' noting that both China and Hong Kong remained subject to sanctions.
'External forces have never stopped interfering in Hong Kong, hence we have to be alert to risk of national security,' Lee said, adding he was concerned overseas counsel would not maintain the professional confidentiality of state and commercial secrets under the NSL.
Defendants like Lai, he said, should only choose from barristers fully qualified to practice in the SAR. He denied the move was targeted at UK nationals, saying: 'Lawyers practicing in Hong Kong … have different nationalities and work on different cases.”
The decision to refer the issue to Beijing followed a ruling by the Court of Final Appeal, in which Hong Kong’s chief justice, among others, denied the SAR’s department of justice permission to appeal a Court of Appeal ruling upholding Lai’s selection of Owen as his counsel of choice.
The three-judge panel dismissed the application on procedural grounds, saying that justice secretary, Paul Lam SC, had fundamentally changed his case on appeal to the CFA by raising unsubstantiated national security issues.
The court ruled 'if the case does involve state secrets and other confidential information…the involvement …ought to have been properly raised and fairly explored …in the courts below', without discussing the merits of Owen’s representation of Lai.
The proposed blanket ban on overseas counsel, the CFA said, needed 'elaboration and evidential support,' where such issues were 'properly raised and duly explored', although it accepted that national security issues were 'plainly of the highest importance to be taken into account'.
Lam had opposed Owen’s appointment, since the High Court approved it in October, as did the Hong Kong Bar Association; he will now seek to adjourn the trial pending a ruling from Beijing, which Lee said he hoped would be forthcoming shortly.
Responding to questions as to whether the remaining foreign judges on the Court of Final Appeal would also be banned from hearing such cases, Lee said the judiciary was independently appointed and recommended NSL judges had 'passed integrity screening', under 'a designated judge system to guarantee the law’s smooth operations. These two matters cannot be mixed as one'.
Matrix Chambers, the Bar Council and the UK Ministry of Justice were approached for comment, as were the Hong Kong Bar Association and the DOJ.