On March 17, the Appeal Committee of the Hong Kong Court of Final Appeal (HKCFA) refused to grant the Apple Daily founder, Jimmy Lai Chee-ying, leave to challenge a decision that prevented him from engaging a British barrister, Timothy Owen KC, to represent him in his ongoing national security proceedings. Although no formal judgment was issued, the Appeal Committee, which filters out unmeritorious applications, concluded there were no reasonable grounds for impugning the decision. It is not hard to see why.
Although a lower-court judge initially allowed the UK-based Owen to represent Lai (an “ad hoc” admission), this occurred without considering the possible national security implications. Once these were factored in, Owen’s admission triggered concerns. It is one thing for an overseas lawyer to be admitted to handle, for example, a maritime, murder, or personal-injury case, but quite another if a case involves (or might involve) China’s very survival. As Lai is charged with colluding with foreign forces for allegedly calling for international sanctions against Hong Kong and the central authorities (and sedition by inciting public hatred after the anti-government protests in 2019), his case’s sensitivity was stark.
As this was uncharted territory, the Standing Committee of the National People’s Congress helpfully clarified the position in 2022. In its interpretation of the National Security Law for Hong Kong (NSL, Art.47), it explained that the chief executive, as chairman of the Committee for Safeguarding National Security (CSNS), enjoyed the discretion to approve applications from overseas lawyers to conduct national security cases (there were no implications for other types of cases). There was no blanket objection, and each case would be decided on its merits. Therefore, once the discretion was exercised, the authorities denied Owen permission to enter Hong Kong for the purpose of representing Lai (although, coincidentally, he appeared in the courts around that time in nonnational security cases, and still appears).
The HKCFA’s dismissal of Lai’s challenge attracted the familiar howls of protest in some quarters. Leading the charge was the Guardian’s senior China correspondent, Beijing-based Amy Hawkins. In an ugly piece (March 22), she bemoaned “the dwindling freedom in Hong Kong”, and waxed lyrical about “death by a thousand cuts”. She even roped in Lord (Jonathan) Sumption (who knifed Hong Kong in 2024 when he resigned as a nonpermanent judge of the HKCFA in a blaze of publicity), who described Owen’s rejection as a “subterfuge” by the government.
Such claims cannot withstand serious scrutiny, and neither Sumption nor Hawkins referred to Hong Kong’s liberal admissions policy. The Basic Law (Art.94) specifically allows lawyers from elsewhere to practice in the city, and there are hundreds of foreign barristers, solicitors and law firms in practice (without any restrictions on their conducting national security cases). In the United Kingdom, as they must know, only locally qualified lawyers are entitled to practice in the courts, and there are no ad hoc admissions.
Eager to dish the dirt, Hawkins made no attempt to explain why restrictions on overseas lawyers representing national security suspects are unavoidable. As she could easily have ascertained, overseas lawyers are not security vetted and there is no guarantee that State secrets they possess will be safeguarded. Any information they acquired about the way in which national security operations are conducted, whether from the case papers or the evidence at trial, would be of great interest to foreign intelligence services. If they disclosed it, they could not, unlike resident lawyers, be held accountable. Moreover, they could find themselves in a highly invidious position if told it was their patriotic duty to disclose what they knew about China’s national security arrangements, as Hawkins should appreciate.
As in the UK, Lai can choose any locally qualified lawyer to represent him, including foreign resident lawyers. Although Hawkins bemoaned Owen’s exclusion, she avoided any mention of Marc Corlett, also a King’s Counsel (from New Zealand), who lives in Hong Kong and whom Lai recruited to his defense team. She presumably realized its disclosure would have blunted her message.
Apart from Lai’s legal representation, Hawkins also worked herself up into a frenzy over the inability of the courts to judicially review the CSNS’s decisions (NSL, Art.14). In search of sound bites, she dredged up Paul Harris SC, the unlamented former chairman of the Hong Kong Bar Association (who fled Hong Kong in 2022 after being interviewed by national security police officers investigating seditious activity). He gleefully obliged, telling her the NSL “effectively gives the committee the powers of a police state” (she must have been ecstatic). However, Hawkins did not disclose that Harris works out of the same Doughty Street Chambers in London as Lai’s five-strong “international legal team”, headed by Caoilfhionn Gallagher KC, of whose noisy activities on Lai’s behalf he presumably approves.
However, although Hawkins contacted various legal figures, including the English Bar Association’s former chairman, Samuel Townend KC (who vilified the HKCFA for “washing their hands of any judicial oversight” of the CSNS), nobody appears to have told her that English common law has recognized for a very long time that the courts defer to the executive on national security policy questions. In 1916, Lord Parker of Waddington, when delivering a judgment in the House of Lords, said, “Those who are responsible for the national security must be the sole judges of what the national security requires” (The Zamora).
In 1977, in the Court of Appeal, Lord Denning, Master of the Rolls (head of civil justice), explained that the balance between the interests of national security and those of the individual “is not for a court. It is for the Home Secretary. He is the person entrusted by Parliament with the task” (R vs Secretary of State for Home Affairs, ex p Hosenball).
In 2001, when the House of Lords (then still the UK’s top appellate body) considered the issue, Lord Hoffmann could not have been clearer. He said, “The question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive” (Secretary of State for the Home Department vs Rehman).
Therefore, the demarcation line between the executive and the judiciary in relation to national security policy issues has been clearly drawn for over a century (although anybody reading Hawkins’ critique would not have known it). The NSL’s exclusion of judicial reviews of the CSNS’ decisions simply encapsulates a principle developed over the years by a succession of British common law judges, including Lords Parker, Denning and Hoffmann.
Moreover, in 2018, when Lord Hoffmann (a nonpermanent judge of the HKCFA) spoke at the University of Hong Kong, he said, “No serious person would disagree with the notion that a judge should not normally be making decisions as to policy matters, especially those involving intelligence or military matters.”
If Hawkins is tempted to write any further articles about Hong Kong’s legal affairs, she should research the issues thoroughly before putting pen to paper. Instead of regurgitating the prejudices of people eager to advance their own agendas, informed reporting should be the goal. If, however, sensationalism is the name of the game, the biggest losers will be her readers, who will have been misled, and The Guardian, whose reputation will have been sullied.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
