Defendants charged under the national security law could be sent to mainland China for trial if they cannot find a lawyer in Hong Kong, the city’s top delegate to Beijing’s advisory body said.

Tam Yiu-chung, Hong Kong’s sole delegate to the National People’s Congress Standing Committee (NPCSC), made the remark while speaking on a TVB programme on Sunday. He said the Beijing-imposed national security law empowered the Office for Safeguarding National Security of the Central People’s Government in Hong Kong to make such arrangements “under special circumstances.”

tam yiu chung john lee manifesto
Tam Yiu-chung. File photo: Lea Mok/HKFP.

Tam’s comment came after several government attempts to block pro-democracy media mogul Jimmy Lai from hiring British barrister Timothy Owen failed. Lai is set to be tried for collusion under the national security law and sedition charges.

The Court of Final Appeal earlier blocked an appeal bid by the Department of Justice, but Lai’s trial was adjourned as the government turned to the NPCSC in Beijing, asking for an interpretation of the national security law – specifically whether overseas counsels can participate in national security cases.

Tam said the standing committee may discuss the matter in its meeting in late December, but the exact agenda is yet to be announced. He said he refused to speculate what would be discussed or decided in the meeting, but said barring overseas counsels from defending suspects of national security cases “matched with the legislative spirit and logic of the national security.” He stopped short at further explaining.

Mainland China trial possible

Under Hong Kong’s common law system, overseas counsels are allowed to represent clients in Hong Kong under special circumstances. Tam was asked whether those special circumstances applied to the national security law, for example if the defendant were not able to find a locally-registered legal representative.

Tam said the national security law follows the civil law system so it cannot be understood in a way that a common law system can.

National security law
Photo: GovHK.

“Some so-called exceptions, which are written in the national security law, that cannot be tried in Hong Kong, the Office for Safeguarding National Security can demand the case to be tried in the mainland. There’s an article stipulating that,” Tam said.

He added: “[I]f overseas lawyers are not allowed [to represent the defendants], then the case can be transferred to be handled in the mainland.”

According to Article 55 of the national security law, the Office can exercise jurisdiction over a case if “the case is complex due to the involvement of a foreign country or external elements,” the Hong Kong government is unable to effectively enforce the law when a “serious situation occurs” or “a major and imminent threat to national security has occurred.”

This jurisdiction included initiating an investigation and having the top court in China designate a court to try the case.

Designated national security lawyers

Currently, a group of judges in different levels of Hong Kong courts are designated judges for national security cases. When asked whether Hong Kong would consider introducing designated lawyers for national security case defendants, Tam said he was not sure if this will be done in the future but it takes time and effort. “Putting together a list [of lawyers] is not an easy task,” he said.

Tam, who is stepping down from the committee, said he hoped the administration could handle the matter itself and need not “trouble the NPCSC.” When asked what exactly can the government do at this point of time, Tam touted the possibility of not granting overseas lawyers work visas for taking part in court cases. He said he learned from the news that Owen’s work visa has expired and the Immigration Department has yet to renew it.

“This will not solve the issue at its root, but will buy time and the government needs not chase after the NPCSC for an interpretation,” Tam said.

Jimmy Lai case

Lai’s case has been adjourned to December 13. The prosecution has said d it would provide a further timetable for the trial after the potential interpretation was released.

The 74-year-old is accused of two counts of conspiracy to collude with external forces and one count of collusion with external forces under the Beijing-imposed national security law. He faces a potential maximum sentence of life imprisonment.

Jimmy Lai Apple Daily
Hong Kong pro-democracy media mogul Jimmy Lai. File photo: Kelly Ho/HKFP.

Lai is also charged over allegedly seditious publications under a colonial-era sedition law.

Three companies linked to his defunct pro-democracy newspaper Apple Daily are also on trial. Six other defendants in the case – former staff members of Apple Daily or its parent company Next Digital – pleaded guilty and will be sentenced after the trial.

The case has attracted widespread local and international attention, with Lai being one of Beijing’s fiercest critics.

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Almond Li is a Hong Kong-based journalist who previously worked for Reuters and Happs TV as a freelancer, and as a reporter at Hong Kong International Business Channel, Citizen News and Commercial Radio Hong Kong. She earned her Masters in Journalism at the University of Southern California. She has an interest in LGBT+, mental health and environmental issues.