Explainer: Hong Kong’s new legal precedents after 3 years of the national security law – Part II

Hong Kong marked the third anniversary of the enactment of its national security law last month. While the government said that the Beijing-imposed legislation, enacted in June 2020, would only impact a minority of people, dozens of opposition figures and residents have been arrested for alleged national security offences.

In the second of a two-part series, HKFP explores the legal precedents set by cases under the sweeping security legislation, which criminalises subversion, secession, collusion with foreign forces, and terrorist activities. Click here for part one.

In 2021, the city saw the closure of Apple Daily, a pro-democracy tabloid that had been one of Beijing’s fiercest critics, after its founder Jimmy Lai and several of its journalists became the first group of media workers charged under the security law.

Lai, who has been held in custody since December 2020, faces three charges: two counts of conspiracy to collude with foreign forces under the security law, and one offence under the sedition law relating to allegedly seditious publications. He faces life in prison if found guilty.

While Lai’s trial has yet to get underway, his case has already set a number of legal precedents regarding the security legislation’s impact on common law traditions.

Journalistic materials

On August 10, 2020, over 100 police officers raided the Apple Daily headquarters in Tseung Kwan O, as well as Lai’s home.

During the raids, police took away two of Lai’s phones, which the media tycoon said contained journalistic materials. Between April and June 2022, Lai identified thousands of journalistic materials on both devices, with police disputing 8,179 of his claims. 

Unless otherwise specified, search warrants do not normally give police the power to inspect journalistic materials, according to Section 83 of the Interpretation and General Clauses Ordinance (IGCO), which states:

“A provision in any Ordinance which confers on, or authorizes the issue of a warrant conferring on, any person the power to enter any premises and to search the premises or any person found on the premises or to seize any material (whether of a general or particular kind and whether or not the word “material” is used in that provision) shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material.”

The first search warrant issued in 2020 did not give police the power to look into Lai’s journalistic materials.

Principal Magistrate Peter Law, one of the city’s handpicked national security magistrates, granted police a special search warrant under implementation rules of the security law on July 8, 2022. 

Under Section 2 of Schedule 1 of the implementation rules, the police can apply to a magistrate for warrants to investigate suspected national security offences. 

The warrant grants the police powers to “enter (and by the use of reasonable force if necessary) and search the place; inspect, examine, search, seize, remove and detain anything in the place that the officer reasonably believes to be specified evidence; and detain any person found in the place until the place has been searched.”

The authorisation of the national security search warrant sparked debate over whether it empowered the police to seize and inspect journalistic materials. 

Between August and November last year, Lai filed three attempts to block the police from accessing journalistic materials on his phone using the national security search warrant. 

His team contested the interpretation of relevant section of the implementation rules, and said the phrase “specified evidence” should not be understood to include journalistic materials. 

High Court Judge Wilson Chan, in his decision denying Lai’s attempt to launch a legal bid against the warrant on August 30 last year, ruled that “press freedom simply does not equate any blanket prohibition against the seizure, production or disclosure of [journalistic materials].”

He also ruled that the security law and its implementation rules operated separately to the IGCO. The Standing Committee of the National People’s Congress (NPCSC), the decision-making body of China’s top legislature, “self-evidently intended to confer on the Police additional powers in handling cases concerning offences under the [national security law],” Chan ruled.  

Chan’s decision was upheld at the Court of Appeal last October, when a panel of three judges – Jeremy Poon, Susan Kwan, and Carlye Chu – ruled that “despite its importance to the freedom of the press, the protection afforded to journalistic material is not absolute.”

Excluding journalistic materials from the definition of “specified evidence” would “unduly limit the scope and hence reduce the effectiveness of police investigation,” the three judges ruled.

The Court of Appeal also held that such an understanding of the implementation rule would not “diminish the protection afforded to the freedom of the press by the local laws or violate the principle of legality.”  

“The same protection safeguards based on public interest for journalistic material under the common law equally apply to a warrant under Schedule 1 [of the implementation rules],” the judgement read. 

The magistrate “will perform the same judicial gatekeeping role” when exercising his discretion to ensure that “the search and seizure of journalistic material is justified in the public interest,” the three judges ruled. 

Following the ruling last October, the Court of Appeal in June rejected Lai’s attempt to take his case to the Court of Final Appeal (CFA). 

The June application, filed by Senior Counsel Philip Dykes, asked the court to certify two questions: whether search and seizure provisions under the security law implementation rules were subject to Part 12 of the IGCO that relates to the search and seizure of journalistic materials; and, if the implementation rules were not subject to Part 12 of the IGCO, what steps a magistrate must take “to ensure that the seizure of journalistic material is justified.”

The application was rejected by Poon, Kwan, and Chu, who ruled that the points raised were “radically new.”

The appeal court also decided that Lai’s arguments had become “academic,” as the police already had access to the journalistic materials stored in his phones. 

Overseas lawyers

There is a tradition of hiring foreign lawyers to take part in criminal cases in Hong Kong. However, Lai was the first person charged under the national security law to attempt to do so.

Barristers not qualified to practise in Hong Kong can apply to be admitted in the city’s court on an ad-hoc basis on the basis they have “substantial experience in advocacy in a court,” according to the Legal Practitioners Ordinance. 

The case against the media tycoon was moved to the Court of First Instance, where the maximum sentence is life in prison, last May. In October, High Court judge Poon ruled that Lai could hire British barrister, King’s Counsel Timothy Owen, to represent him in his national security trial, despite objections from the Department of Justice (DoJ) and the Bar Association, which regulates the city’s barristers.

Among the reasons given for opposing Owen’s admission, the DoJ and the Bar Association said that Lai’s case was not of “unusual difficulty or complexity” to warrant the engagement of an overseas counsel.

Poon, however, said the case would include a dispute on the construction of the sweeping security law and was “neither simple nor straightforward.”

The High Court judge also said that the king’s counsel’s “undisputed expertise and experience” in criminal and human rights law “will undoubtedly add a significant dimension to the case.”

Poon’s ruling faced three subsequent appeal attempts from the government, with the justice department only raising national security concerns over Owen’s admission after an appeal attempt at the Court of Appeal failed.

In its November application for leave to appeal to the top court, the administration – represented by former justice minister Rimsky Yuen – claimed there was no way to ensure foreign counsels would keep state secrets or other confidential information after leaving Hong Kong.

The same argument was presented to the Appeal Committee of the CFA after the government’s application to the appeal court failed. 

The top court rejected the justice department’s final attempt, saying appellants could not raise points that were not discussed in previous trials or appeals. 

Less than three hours after the top court’s decision in late November, Chief Executive John Lee announced that he would invite Beijing to intervene on the matter. 

Following Lee’s invitation, the NPCSC passed an interpretation of the security law on December 30, confirming the chief executive and Hong Kong’s Committee for Safeguarding National Security had the power to decide on the matter.

According to the NPCSC decision, Hong Kong courts must request certification from the chief executive to decide whether to allow foreign counsels to participate in national security cases, with the national security committee stepping in if courts failed to obtain chief executive certification. 

In February, Lai’s team asked the court to declare that the NPCSC decision would not impact Owen’s admission. Two months later, his lawyers launched a legal bid against the national security committee and the director of immigration after it was revealed that the national security committee had decided in a private meeting in January that Owen’s participation in the case would harm national security interests. 

The committee also advised the director of immigration to reject any future visa applications from Owen for the case.

Representing Lai, Senior Counsel Robert Pang argued that the national security committee had acted beyond its powers, and that the court should step in. The government’s efforts to block Owen’s admission amounted to “persecution not prosecution,” Pang said in a separate application to permanently halt the trial. 

The Court of First Instance in May rejected the media tycoon’s legal bid, ruling that the court did not have jurisdiction over the national committee’s work. Judge Poon also said that although the NPCSC decision passed after Owen’s admission, it still applied to Lai’s case. 

The media tycoon has since filed an appeal against that decision.

Additionally, the government has added hurdles to the process of admitting overseas lawyers to work in national security cases. 

In May, the Legislative Council amended the Legal Practitioners Ordinance, giving the city’s leader further power to decide on the matter.

Foreign counsels wishing to participate in national security cases must now apply to the chief executive for permission to apply. If the chief executive grants the lawyer’s application, the courts will then have to request certification from the chief executive before making a ruling on the admission application. 

The government said that the new requirement was not a blanket ban on overseas counsel.

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