Hong Kong’s Court of Appeal has refused to grant the secretary for justice a final chance to appeal against a court decision to allow a UK barrister represent media mogul Jimmy Lai in his high-profile national security trial scheduled to start on December 1.
The court said Lai’s case did not involve any “state secrets,” according to a written judgement released on Monday. The Department of Justice (DoJ) said it feared such secrets might be disclosed by the overseas counsel.
A panel of three judges added that the suggestion the court should generally refuse the admission of overseas lawyers in national security cases was “untenable” and “contrary to the established law.”
The city’s justice chief had applied for a leave last Tuesday to appeal to challenge an earlier Court of Appeal ruling, which upheld the admission of King’s Counsel Tim Owen to represent Lai.
The 74-year-old founder of now-defunct pro-democracy newspaper Apple Daily faces three charges under the Beijing-imposed national security law related to “collusion with foreign forces” as well as one charge under the colonial-era sedition legislation.
Lai has been detained in custody since December 2020.
Representing the current secretary for justice, senior counsel and former justice chief Rimsky Yuen told the court there was no meaningful or effective enforcement of overseas counsels’ obligations to confidentiality regarding state secrets or other confidential information once they leave Hong Kong.
In response, Vice Presidents of the Court of Appeal Susan Kwan and Carlye Chu, as well as Justice of Appeal Thomas Au said “the issue of State secrets does not arise on the facts of this case.”
Additionally, the secretary for justice did not cite “protection of state secrets” when ordering Lai’s case to be tried without a jury, the judges noted.
The three judges also said the national security law applied to non-residents outside the city, while all practising barristers in England and Wales are subject to a code of conduct.
“So it does not appear that any enforcement of breach of the code of conduct governing barristers or the laws of Hong Kong would be meaningless or ineffective once overseas counsel has left the territory,” they ruled.
‘An untenable proposition‘
Yuen also told the top court that the admission of overseas counsel in national security cases should generally be refused, unless the applicant was able to establish “exceptional circumstances.”
The government lawyer said that because the national security law was drafted under mainland China’s legal system, an overseas counsel trained in common law would have “necessarily limited if not negligible” contribution in the “proper development” of Hong Kong’s national security-related law theories.
However, the three judges ruled that Yuen’s argument was “contrary to the established law.”
“If his contention is upheld, the court would no longer be required to carry out a balancing exercise of the relevant aspects of public interest in a particular situation… Its discretion could only be exercised in a particular way,” they said.
The judges said Yuen’s submission “goes against the grain of guiding principles for the exercise of judicial discretion.”
“It is an untenable proposition and not reasonably arguable,” they added.
As the secretary for justice lost the bid for appeal, he was ordered to cover Lai’s costs related to this application, too.