Hong Kong pro-democracy media tycoon Jimmy Lai has filed a legal bid against the government decision to reject any further work visa applications from an overseas counsel he had hired for his national security case.

Lai, 75, who founded the defunct pro-democracy tabloid Apple Daily, faces a total of four charges under the Beijing-imposed national security law and the colonial-era sedition law.

Jimmy Lai
Jimmy Lai. File Photo: Kelly Ho/HKFP.

His case sparked debate over the participation of overseas counsel not qualified to practice in Hong Kong in the city’s national security cases, after Lai sought to hire King’s Counsel Timothy Owen to represent him in court.

The High Court admitted Owen in a decision in October last year despite government objection. The Court of Appeal and Court of Final Appeal later rejected three further attempts from the government to bar the king’s counsel from the case.

Following the defeat at the city’s top court, Chief Executive John Lee invited Beijing to intervene on the matter in November last year.

The trial against Lai was also adjourned as the city awaited Beijing’s decision. At the same time, Lai’s representative Senior Counsel Robert Pang revealed that the Immigration Department had withheld Owen’s visa extension application.

Timothy Owen
King’s Counsel Timothy Owen leaving the Court of Final Appeal in Central on November 25, 2022. Photo: Candice Chau/HKFP.

The Standing Committee of the National People’s Congress (NPCSC), the top decision-making body of China’s legislature, then passed the first interpretation on the sweeping security law late last December.

While the NPCSC interpretation did not rule directly on whether foreign lawyers could take part in national security cases in Hong Kong, it confirmed the chief executive and a powerful national security committee had the power to decide on the matter.

Lai’s application

In an application for leave to apply for judicial review filed on Tuesday, Lai’s team sought to quash a decision and judgement from the national security committee which ruled that the king’s counsel’s participation in Lai’s case was contrary to national security interests.

Lai also sought to challenge a decision made by the director of immigration that any new visa application from Owen “should be refused.”

High Court
High Court. Photo: Candice Chau/HKFP.

The media tycoon’s application said that those decisions exceeded the powers prescribed by the security law.

The national security committee had also “misconstrued the interpretation as creating a new function” under the security law as authorising the committee to decide on matters concerning the admission of overseas counsels in national security cases, according to Lai’s application.

After Lai’s team sought to confirm the impact of the interpretation on Owen’s admission, the secretary for justice did not inform them that Owen had been discussed as a national security committee meeting in January.

In February, Lai’s team asked the High Court to rule that the NPCSC interpretation would not affect judgements previously handed down regarding Owen’s admission.

Lai’s team was not aware that the national security committee had decided that allowing Owen to represent Lai “concerns national security which is likely to constitute national security risks and is contrary to the interest of national security” until March, when the immigration director said as much.

Immigration Department
Immigration Department. File photo: Candice Chau/HKFP.

The director also said that the committee had advised him to refuse new visa applications from Owen for Lai’s case based on its judgement.

The committee’s designation of the nature of Owens’ representation and instruction to the immigration director went beyond its duties and functions prescribed by the security law, according to Lai’s application.

The media tycoon argued that the committee’s duties and functions related to “matters of general policy” and coordinating “major works and significant operations.”

“There is no power or jurisdiction to determine specific questions arising from cases, let alone overturn judicial decisions,” Lai’s application read.

According to Lai, “the whole judicial administration would collapse” if the national security committee “stretched [its] interpretation of its powers” to decide any issue concerning national security.

The media tycoon has asked the court to rule that the decisions from the committee and the immigration director went beyond the powers prescribed in the security law, and to quash the two decisions.

Lai stands accused of one count of collusion with foreign forces and two counts of conspiracy to collude with foreign forces under the security legislation. He also faces a charge over allegedly seditious publications. He has been detained since December 2021, and is currently serving a five-year, nine-month sentence for fraud over violating the terms of lease of Apple Daily’s headquarters.

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Candice is a reporter at Hong Kong Free Press. She previously worked as a researcher at a local think tank. She has a BSocSc in Politics and International Relations from the University of Manchester and a MSc in International Political Economy from London School of Economics.