Hong Kong pro-democracy media tycoon Jimmy Lai has been ordered to cover the costs of two legal challenges linked to his high-profile national security trial , after a local court ruled that his litigation conduct was “unreasonable.”
The High Court on Thursday ordered the founder of the defunct newspaper Apple Daily to pay the Secretary for Justice’s litigation costs in his bid to ask a local court to prevent Beijing’s interpretation of the national security law from affecting an earlier ruling that allowed him to be represented by UK lawyer Timothy Owen at his upcoming trial.
The 75-year-old media mogul was also asked to pay the government’s legal fees for an April bid Lai launched to challenge a decision from the National Security Committee which ruled that the king’s counsel’s participation in Lai’s case was contrary to national security interests, as well as the subsequent decision from the Immigration Department to reject any further work visa applications from Owen.
The High Court admitted Owen to represent Lai last October despite government objection. The Court of Appeal and Court of Final Appeal later rejected 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.
Lai, who is set to face trial in late September over sedition and conspiracy to collude with foreign powers charges, lost both of his challenges.
The Department of Justice (DoJ) had argued that Lai’s proposed challenges were “wholly and plainly unarguable” and should never have been brought to court in the first place, Chief Judge of the High Court Jeremy Poon wrote in a judgement handed down on Thursday.
The DoJ also informed Lai through a letter in April that decisions made by the National Security Committee were “final, binding and not amendable to judicial review,” and the proceedings were “plainly unwarranted” and “totally devoid of merits.”
The justice department had “invited” Lai to halt his two proceedings, and said it would seek costs against him on an indemnity basis, the judgement read. Lai “nevertheless still unreasonably persisted in prosecuting the two proceedings,” and therefore should be asked to pay the costs, Poon cited the DoJ as saying.
Lai argued he should not cover the costs, saying it was “not obvious” that the interpretation empowered the National Security Committee to make a decision on the admission of Owen. He also argued that the judicial review was of “the greatest public interest,” since the matter stemmed from a case under the Beijing-enacted legislation. Under normal circumstances, unsuccessful applicants for judicial review should not be ordered to pay the litigation costs, the judgement read.
Poon sided with the DoJ and said Lai’s application for judicial review was “wholly unmeritorious.” Hong Kong courts had no jurisdiction over the National Security Committee and the decision it made “lies squarely within its power” under Article 14 of the security law, he said.
The chief judge added Lai ignored the DoJ’s advice of dropping the two challenges due to the lack of merits and “unreasonably persisted,” he said.
“His persistence thereafter is unreasonable litigation conduct, justifying an order for indemnity costs.”
Lai has been detained since December 2020, and is currently serving a five-year, nine-month sentence for fraud over violating the terms of lease of Apple Daily’s headquarters.
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces 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.
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