Hong Kong’s top court will not allow the Department of Justice (DoJ) to appeal against an earlier court decision admitting a UK barrister to represent media tycoon Jimmy Lai in a high-profile national security trial.
The High Court previously approved the application to admit King’s Counsel Timothy Owen in Lai’s trial, which is scheduled to begin on Thursday.
The Court of Final Appeal ruled against the DoJ on Monday, after the department filed its fourth attempt to block Owen’s admission.
In Monday’s ruling, Chief Justice Andrew Cheung and Permanent Judges Roberto Ribeiro and Joseph Fok ruled that “no appropriate basis has been made out.”
The panel of judges said that while national security concerns in the ad hoc admissions of overseas counsels “are plainly of the highest importance to be taken into account,” the department raised “undefined and unsubstantiated issues” that were not mentioned in previous appeals.
The top court also rejected the government’s argument that the admission of Owen raised questions over the issue of confidentiality regarding state secrets.
Former justice secretary Senior Counsel Rimsky Yuen previously argued that there were no mechanisms in place to ensure overseas counsels followed their obligations to confidentiality.
The judges ruled on Monday that the involvement of sensitive matters in the case should “have been properly raised and fairly explored factually” in lower courts, “rather than being first raised as an unsubstantiated new point when applying for leave to appeal to the Final Court.”
King’s Counsels are the British equivalent of senior counsels in Hong Kong and require permission to be allowed to represent clients in the city’s courts.
Possible Beijing intervention
Prior to the ruling on Monday, pro-Beijing figures suggested that the central government could intervene in the matter if the court did not reverse Owen’s admission.
Tam Yiu-chung, Hong Kong’s outgoing representative to the Standing Committee of the National People’s Congress, said on Saturday that allowing Owen to represent Lai violated the legislative intent of the national security law.
When asked if the standing committee would issue an interpretation of the law if DoJ’s appeal was rejected, Tam said that the committee had a responsibility to clarify legislative intentions if the law was misinterpreted.
Lawmaker Priscilla Leung has also suggested the possibility of Beijing involvement.
Leung said last Thursday that there might be a conflict of interest for overseas counsels to take part in national security cases, especially those involving alleged collusion with foreign forces.
The lawmaker said that Beijing was very “persistent” on the explanation of the national security law, and might issue an interpretation if it thought it was not clear.
Admitting senior UK barristers in Hong Kong is not uncommon, with a number of them having represented the government in the past. The Justice Department hired UK barrister David Perry in a 2017 bribery trial against ex-chief executive Donald Tsang.
High-profile trial
Lai faces a total of four charges: two counts of conspiracy to collude with foreign forces and one count of collusion with foreign forces under the national security law, and one count of conspiracy over allegedly seditious materials under the colonial-era sedition law.
The Apple Daily founder has been remanded in custody since December 2020. Lai has since been sentenced to prison over other protest-related charges.
Three companies linked to the defunct pro-democracy tabloid will also stand trial. Six other defendants in the case, who were former employees of Apple Daily or its parent company Next Digital, pleaded guilty, and will be sentenced after the trial.
Apple Daily is the first news outlet to be charged under the Beijing-imposed national security law. The paper folded in June last year following the arrests of its writers and employees.
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