A group representing thousands of Hong Kong lawyers has said it would not support any “blanket ban” on overseas lawyers appearing in national security cases.
President of the Law Society Chan Chak-ming, in a letter to the Legislative Council’s Panel on Administration of Justice and Legal Services, said the admission of overseas counsel in such proceedings should be decided “on a case-by-case basis.”
“We do not support a blanket ban of ad hoc admission of overseas lawyers in [national security] cases,” read the letter from the society, which regulates the city’s solicitors.
The debate arose when media tycoon Jimmy Lai sought to hire British King’s Counsel Timothy Owen for his national security trial.
Following four court rulings in favour of Lai and against the government, Chief Executive John Lee invited Beijing to intervene. The top decision-making body of China’s legislature, the Standing Committee of the National People’s Congress, issued a legislative interpretation of the sweeping security law last December.
The decision stipulated that the city’s chief executive and a national security committee have the power to decide on the matter.
Lai, who has been remanded since December 2020, faces three national security charges punishable by life imprisonment – one count of collusion with foreign forces and two counts of conspiring to collude with foreign forces – and one charge under the colonial-era sedition law.
The trial against the former publisher of the now-closed Apple Daily pro-democracy newspaper will resume in September. The High Court is expected in May to hear an application from his legal team to halt the trial.
The national security law, enacted in June 2020, also criminalises subversion, secession, and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure.
The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.
Pre-application screening and review mechanism
According to the government’s latest proposal, a “pre-application screening process” of requests for foreign counsel in security cases would be introduced to “ensure that only meritorious cases with a real prospect of success would require the courts’ handling and certification by the Chief Executive.”
Applicants will first have to notify the secretary for justice that they intend to ask the Court of First Instance to grant permission for a foreign lawyer to appear in such a case.
Under the government proposal, the applicant must give reasons, backed up by evidence, why the use of a foreign lawyer would not damage national security.
The justice minister will then forward the case to the chief executive, who must give permission for the application to go to the High Court.
The court will then apply to the chief executive for certification on whether the admission of the foreign barrister would harm national security.
The government also proposed a review mechanism after an overseas counsel was admitted.
The court and the secretary for justice must also confer to the chief executive on the lawyer’s admission, or whether the case should have been treated as a national security case, if there were changes in circumstances warranting a review.
The Law Society said in its letter the description of the screening process and review mechanism in the government document was “too brief.”
“Among other things, we are not at this stage convinced that the [chief executive] should be asked to adjudicate the same matter twice,” it said.
“Prima facie, the current proposal is not cost-effective and duplicates effort of all the parties.”