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National security law: up to Hong Kong leader or oversight panel to decide if tycoon Jimmy Lai can hire foreign lawyer, China’s top legislative body finds

South China Morning Post 30/12/2022 Chris Lau, Natalie Wong

Move by National People's Congress Standing Committee follows request by city leader John Lee in November
Hong Kong's top court had earlier dismissed administration's bid to prevent media tycoon Jimmy Lai from hiring British barrister for collusion trial

Hong Kong's leader or an oversight committee can decide whether a defendant in a national security trial is permitted to use a foreign lawyer, China's top legislative body has determined in clarifying two clauses of the Beijing-imposed law after media tycoon Jimmy Lai Chi-ying tried to hire a British barrister.

The National People's Congress (NPC) Standing Committee made the decision on Friday after a four-day meeting and "interpreted" the national security law to give clear definitions on the scope of the legislation.

Beijing found that it was a matter to be decided within the city after interpreting articles 14 and 47 of the law that it imposed on Hong Kong in 2020, following months of anti-government protests. Chief Executive John Lee Ka-chiu had earlier made a request for an interpretation.

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Hong Kong wants Beijing to interpret national security law. Here's why it matters

Article 14 lists the duties and functions of the Committee for Safeguarding National Security, which includes formulating relevant policies, advancing the development of the legal system and coordinating relevant operations.

Article 47 states that Hong Kong's courts shall obtain certification from the chief executive on whether an act involves national security or whether the relevant evidence involves state secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.

In explaining the decision, the standing committee said in a statement that the issue should be decided by Hong Kong's chief executive, who has the authority to issue a certificate under Article 14.

"If the courts of the Hong Kong Special Administrative Region have not made a request to obtain such a certificate from the chief executive, the Committee for Safeguarding National Security would have to make a decision based on the situations and questions which arise in accordance with Article 14 of the national security law," it said.

The Hong Kong government had tried but failed to get the city's top court to block Lai's attempt to hire British King's Counsel Timothy Owen to defend him against two charges of collusion he faces in a high-profile trial. Government lawyers requested to adjourn the trial just two days before its scheduled start date in November.

Hong Kong government ordered to pay Jimmy Lai's HK$855,000 legal fees

Here are live updates from John Lee's presser:

A 'positive impact' on rule of law

Responding to whether the interpretation may trigger a backlash from the legal community, the chief executive says it will have a "positive impact" on Hong Kong's legal system and rule of law.

"The interpretation fully demonstrates the rule of law and the judicial spirit of having different parts of the legal system executing their own duties," he says.

"This embodies how Hong Kong's legal system upholds the rule of law when handling crimes that involve national security."

Chief Executive John Lee. Photo: Sam Tsang

Should Legal Practitioners Ordinance be amended?

Lee says the government will have to weigh potential risks to see whether it should amend the Legal Practitioners Ordinance.

"When there's a decision to amend it, of course it will be through a bill presented to Legco for it to be considered in accordance with Legco procedure," he says, adding it will do it "as soon as possible".

But Lee emphasises that the latest interpretation only concerns "a very small area" and overseas lawyers or barristers without full practising rights or qualifications in Hong Kong are still "most welcome" to take part in cases not involving national security issues, provided they satisfy procedures to obtain ad hoc approval from the court.

Clearing the air

Lee says the national security law has returned the city to order, "achieving the result expected", though new issues will arise from time to time. He says the interpretation shows the executive, legislature and judiciary their roles in safeguarding national security without affecting the judiciary's independence.

No extra power for leader

John Lee says Beijing's interpretation does not increase the power of the city leader, and that he will fully consider facts and information of relevant cases in determining whether the evidence involved state secrets.

The city leader also clarifies that possible law amendments to the Legal Practitioners Ordinance will not affect the practice of overseas lawyers who are not involved in national security cases. "The scope affected [by the amendments] is limited, as most cases in Hong Kong are not related to national security," he says.

John Lee welcomes decision

In a press briefing, Chief Executive John Lee says he "welcomes" Beijing's decision and praises the move for "realising the principles of the rule of law". He says the interpretation shows how common law and national security law are "tolerable" with each other.

More to follow ...