Hong Kong court rejects media tycoon Jimmy Lai’s bid to challenge foreign lawyer ban at top court
Hong Kong Free Press
A Hong Kong court has refused to allow jailed media tycoon Jimmy Lai to ask the city’s top court to overturn a ruling that effectively barred him from hiring a British lawyer for his ongoing national security trial.
The Court of Appeal on Friday rejected Lai’s application for leave to appeal to the final appellate court. The 76-year-old Apple Daily founder wanted to challenge the appeal court’s ruling in April, when it sided with a decision from the Committee for Safeguarding National Security.
The committee – chaired by Chief Executive John Lee – said last January that the proposed representation of Lai by King’s Counsel Timothy Owen was “contrary to the interests of national security.” It also ordered that the director of immigration should refuse any visa applications from Owen connected to Lai’s foreign collusion and sedition case.
Lai is on trial for two counts of taking part in a “conspiracy to collude with foreign forces” under the security legislation, and also for conspiring to publish “seditious” materials. The self-made millionaire’s media outlet, which was forced to close in June 2021 after senior staff were arrested, faces the same charges.
Not ‘reasonably arguable’
In a written judgement released on Friday, Court of Appeal vice-presidents Susan Kwan and Carlye Chu, and Justice of Appeal Thomas Au ruled that the three questions raised by Lai’s lawyer in the intended appeal were not “reasonably arguable.”
Representing Lai, barrister Samantha Lau had asked in her written submissions filed in May whether the decisions made by the national security committee were immune from judicial review.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
In rejecting Lai’s bid, the Court of Appeal said this point had been raised in Lai’s previous appeal and was rejected. The judges said the Standing Committee of the National People’s Congress (NPCSC) did not intend to grant jurisdiction to Hong Kong’s courts to review any judgement, decision or act of the national security committee.
“[W]e rejected this ground of appeal because the legislative intent as expressed in the language of NSL 14 read with the Interpretation is ‘most clear,’” the judges remarked.
Lau also a raised question as to whether the first-ever interpretation of the national security law by Beijing in December 2022 had enlarged the statutory functions of Hong Kong’s national security committee. The last question in Lai’s intended appeal focused on whether the committee’s decision exceeded their power granted under Article 14 of the national security law.
Both questions were dismissed by the Court of Appeal. Lau’s argument that the national security committee’s duties must be restricted to the ones listed under Article 14 was “not a proper reading” of the NPCSC interpretation, the judges ruled.
The court also refused to consider the last question, citing its conclusion that the decisions by the national security committee were not amenable to judicial review.
“For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal as none of the questions involved in the intended appeal are reasonably arguable,” the judgement read.
Under the Hong Kong Court of Final Appeal Ordinance, Lai may still apply for a leave to appeal from the final appellate court directly. His application shall be made within 28 days starting on Friday.
Legal saga
The legal saga stemmed from Lai’s attempt to hire Owen in 2022 to represent him in his landmark national security case. The government made several attempts to block the move, but the top court ultimately ruled in favour of Lai and allowed the British lawyer to represent the media mogul.
The government then requested Beijing issue an interpretation of the law, an increasingly-utilised mechanism within the city’s mini constitution. The interpretation empowered the national security committee to vet overseas lawyers participating in national security cases, meaning Lai could not hire Owen to represent him.
Lai’s trial was adjourned on its 90th day last month after prosecutors officially closed their case against the pro-democracy tycoon, who could face up to life imprisonment if convicted. He is currently serving a jail term of five years and nine months for a separate fraud conviction.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
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