Little chance Jimmy Lai will get his overseas counsel choice for Hong Kong national security trial, pro-Beijing legal experts say
- British King’s Counsel Timothy Owen is unlikely to represent media mogul given proposed legal amendments and existing administrative procedures, they say
- But government should clearly state whether suggested changes to Legal Practitioners Ordinance will be retrospective, some argue
Under the department’s proposed amendments to the Legal Practitioners Ordinance made public on Monday, courts will need the chief executive’s approval before a foreign lawyer is allowed to take on a national security case. The leader can deny permission if the counsel’s participation is deemed “contrary to the interests of national security”.
But aside from the suggested changes, the government has other ways to prevent an overseas lawyer from taking on such cases, legal veterans noted. Lawmaker Priscilla Leung Mei-fun, a member of the Basic Law Committee that advises Beijing on matters relating to the city’s mini-constitution, said the government could bar a foreign lawyer from a case simply by refusing to grant them a working visa.
“It is quite clear that the government considers [British King’s Counsel Timothy Owen] as unsuitable. Otherwise it would not file an appeal on the case, and then seek Beijing’s interpretation,” she said. “The administrative means are already enough, but a legal amendment could set a clear precedent for any other coming cases.”
Lai has fought an escalating battle with the department over hiring Owen to defend him against the charge of colluding with foreign forces. After prosecutors initially failed to bar Owen from the case, they appealed to the city’s highest court, which sided with Lai, triggering an unprecedented request by city leader John Lee Ka-chiu for Beijing to interpret the national security law.
But Beijing essentially handed the matter back to the city’s administration, ruling the participation of overseas lawyers in national security cases would be up to the chief executive and the Committee for Safeguarding National Security to decide. The department has now turned to the Legislative Council to codify that ruling with the proposed amendments.
Overseas lawyers could be ‘banned from Hong Kong security trials within 6 months’
The department is seeking to require that judges apply for a certificate for including a foreign lawyer in cases concerning national security, including offences other than the four listed in the 2020 security law – secession, subversion, terrorism and collusion with foreign forces. But the proposed changes in their current form do not say whether they are retrospective.
Executive Council member and Senior Counsel Ronny Tong Ka-wah argued the amendments should not be retrospective, in which case they might not apply to Owen, given the Court of Final Appeal had already given him permission to represent Lai.
But given Owen was “high-profile politically”, his entry could be rejected for other reasons, he said.
“It could be because of political reasons that [the authorities] do not approve the entry permit,” he said.
Immigration authorities have in the past refused well-known rights activists permission to enter.
But lawmaker Eunice Yung Hoi-yan, deputy chairwoman of Legco’s justice and legal services panel, said the proposed legal amendments, once passed, should apply to Lai’s case as it was “ongoing”.
Noting the intense interest surrounding the case and Owen’s role, Yung said the government needed to clearly state whether the permission for a foreign lawyer’s participation in a national security case had to be sought by the courts before or during the trial. Authorities should also spell out the duration that a case should be adjourned in order to complete the related request and the grounds for raising the matter with the city’s leader.
Lai on Monday applied for the Court of First Instance to declare it would not allow Beijing’s interpretation to affect his decision to retain Owen as counsel.
The media mogul’s legal team also asked the court to obtain a more general certificate from the chief executive to decide whether his case would involve national security elements for any overseas lawyer he hired.
“This case is still ongoing, and courts have an ongoing duty owed to the public,” Yung said. “If things related to national security pop up amid a court case, the courts should be allowed to seek permission from the chief executive.”
Hong Kong leader to have final say over foreign lawyers at national security trials
British lawyer Jonathan Caplan, QC, who has represented the justice department several times, earlier suggested not all national security cases would involve state secrets, and so far the objections barring Owen and other counsel from participating in Lai’s case were not clear.
But lawmaker Leung argued that national security threats could be subtle and the amendments would have a minimal impact on judicial independence.
“Like many other countries, the Hong Kong government will get hold of some sensitive information regarding security threats or concerns, and the government is now judging that case by case instead of putting a blanket ban, which is a suitable balance act already,” she said.
She pointed to Singapore as an example, noting the country also barred overseas lawyers from national security related cases. It only allowed foreign lawyers to practise in “permitted areas” such as finance, banking and intellectual property laws, and only if they had at least three years’ experience and had passed a local exam.
