The Court of Appeal on Monday rejected a bid by the Department of Justice to take arguments to the Court of Final Appeal against the High Court’s ruling that permitted Timothy Owen, a British barrister, to represent Jimmy Lai Chee-ying, jailed Hong Kong media tycoon, in his upcoming national security trial. Lai has been charged with three national security offenses, including two charges of conspiracy to collude with foreign countries or external elements, and one charge of collusion with foreign forces. Collusion with foreign forces carries a maximum penalty of life imprisonment.
It is unfavorable that a foreign lawyer should represent Mr Lai, given his charges. Lai is alleged to have collaborated in foreign powers’ meddling in Hong Kong’s internal affairs during the 2019 social unrest, and of giving assistance to sow chaos and a complete breakdown in law and order. Lai has devoted himself continuously to lobby US government officials to sanction Hong Kong and Chinese mainland officials. Hence, Hong Kong former chief executive Leung Chun-ying argued that it is “bewildering” that the Court of Appeal has essentially invited a foreigner to “develop” the National Security Law (NSL) for Hong Kong, and to intervene in defense of Mr Lai’s “conspiracy to collude with foreign cases”.
The issue of nationality cannot be weighted less. The nationality of Owen (and Lai) is British, and Britain is a member of the Five Eyes alliance, which seeks to contain China. Five Eyes nations have consistently attempted to undermine the NSL by publicly besmirching it and suspending their extradition treaties with Hong Kong after its passage. Leung criticized Cliff Buddle, a South China Morning Post editor, who argued, in a commentary in favor of the Court of Appeal’s decision, that Owen’s nationality is “irrelevant”. Leung retorted in a social media post: “If nationality has no meaning, why in 1997 did the British government convert Lai into a British subject without requiring him to take up residence in the UK?”
Lai’s choice of representation is unlikely to reach the conclusion of “beneficial to NSL’s development”. In fact, Owen does not have or profess to have expertise or experience in issues concerning the construction or application of the NSL and offenses endangering national security under the local laws, including sedition, and hence is not able to add a significant dimension to the case, particularly in light of the fact that local senior counsels with relevant experience had already been engaged. He would not be able to add a significant dimension to the case or provide significant contribution to the trial court. It has been two years since the NSL passed, resulting in around 213 arrests, 125 people charged, and 30 people convicted. This suggests Hong Kong lawyers already have ample experience handling NSL cases, and that Lai can be represented by a local lawyer.
The local context of the NSL and the security risks a foreign lawyer could bring should also be more fully considered
The Court of Appeal also stated that Lai’s representation enables the NSL’s application to “be seen to conform to internationally accepted judicial standards”. However, shall national security risks take precedence over this? The unique aspects of the NSL we should take into account are: 1) the enactment history in response to notable national security risks in the Hong Kong Special Administrative Region in recent years and its special constitutional status; 2) the concept of national security intertwined with the social and political context of the State, i.e., the People’s Republic of China, with special focus on the HKSAR; 3) the drafting of the NSL as guided by, inter alia, the ideologies of the central authorities; 4) the ultimate vesting of the power of interpretation of the NSL with the Standing Committee of the National People’s Congress, pursuant to Article 65 of the NSL.
In addition, protecting national security and upholding the rule of law are not unavoidably irreconcilable. Some commentators have argued that the NSL or not permitting Lai to be represented by a foreign lawyer would jeopardize Hong Kong as an international legal hub. Since our return to the motherland on July 1, 1997, Hong Kong’s global ranking on the rule of law is close to the UK’s. In the World Justice Project’s 2022 Rule of Law Index, Hong Kong ranked 22nd among 140 countries and regions globally. Hence, Hong Kong should “maintain self-confidence”, “keep to our path” and should not “mechanically imitate others or indiscriminately absorb foreign ideas”, as stated in the work report of the 20th National Congress of the Communist Party of China. The Court of Appeal has arguably gone against this spirit.
The NSL was written by the National People’s Congress Standing Committee so the authentic language and ideologies of the law are in Chinese, and the English version should only be used “for information only”. The NSL is “a highly specific national concern that is tailored to Hong Kong’s unique constitutional framework”. Owen might not be suitable to handle NSL cases, given his lack of understanding of the Chinese language, China’s Constitution and its civil law system, and his lack of experience in handling NSL cases in Hong Kong. Any arguments based on the language of the NSL would “best be advanced” by Chinese-speaking counsels.
Last but not least, a conflict of interest would exist if Owen were to act for Lai. He is liable to disclose to the British government according to its treason laws evidence concerning the UK’s national security. This may entail him violating the principle of confidentiality of information in Hong Kong, bringing risks to China’s national security. It must be emphasized that the city is still in the early stages of the NSL’s implementation, and the outcome of Lai’s case could impact Hong Kong residents’ understanding of the NSL. Judgments that go against the original intention of the NSL could be weaponized by those with ulterior motives to harm the city’s hard-won peace.
To conclude, Lai should not be permitted to have a foreign lawyer represent him in an NSL case. This is due to the nature of the charges against Lai, the significance of nationality, and the unlikelihood that a foreign lawyer would benefit the NSL’s development. The local context of the NSL and the security risks a foreign lawyer could bring should also be more fully considered.
The author is co-convener of China Retold, a Legislative Council member, and a member of the Central Committee of New People’s Party.
The views do not necessarily reflect those of China Daily.