For most laymen in Hong Kong, the courts’ decisions, including the latest and final decision by the Court of Final Appeal (CFA), to allow a British king’s counsel recruited from the UK to defend Jimmy Lai Chee-ying, founder of the now-defunct Apple Daily, against charges under the National Security Law for Hong Kong, run counter to common sense. Lai will be tried before a panel of three High Court judges on two counts of conspiracy to collude with foreign forces and one similar charge of collusion under the National Security Law. He also faces a serious sedition charge.
As this law was drafted and passed by the Standing Committee of the National People’s Congress of the People’s Republic of China, it is based on the Chinese continental law system. It was also declared that the original Chinese version is the final arbiter of the law, whereas the English version is merely for reference. Thus, how the law should be understood and debated in court must be based on an expert knowledge of the mainland legal system and its law-drafting principles, in which the UK counsel can hardly claim greater expertise than his many Hong Kong counterparts, which provide ample choices to represent Lai in his defense. In this circumstance, allowing a foreign lawyer who cannot even read Chinese and has no formal training in Chinese continental law to defend a client being tried under the National Security Law simply defies logic and common sense.
Mr CY Leung, the former chief executive and currently a vice-chairman of the National Committee of the Chinese People’s Political Consultative Conference, was the first to come out promptly to criticize the chief judge’s approval, calling it absolute nonsense and warned that such a decision has far-reaching negative implications! He is right!
Furthermore, the main evidence of the case against Lai is the 161 articles published in the Apple Daily, which are said to be of a seditious nature. Can the foreign lawyer read all these articles and soak up their meaning, both direct and implied? Clearly not! So huge resources must be expended to translate all these articles into English for his sake. We all know one of the common tricks of defense counsels is to single out one word or phrase, and make a convoluted argument on its interpretation in favor of the defense. The English translation of these articles would present endless opportunities for the foreign lawyer to cast doubts ending with the usual foreseeable argument that his client did not receive a fair trial. In any event, it will surely be a great waste of the court’s precious time entertaining the defense counsel’s language handicap.
It is common knowledge that national security trials often involve national secrets, which is why such trials are usually held in camera. Indeed, I am not aware of any country that would allow foreign lawyers to act as defense counsel in national security trials. For sure, the US would never allow any foreign lawyer to defend Julian Assange in the event that he is tried in the US for national security offenses!
Furthermore, in colonial times, Hong Kong has inherited the undesirable English court practice of obliging the prosecution to reveal all unused material to the defense before trial. “Unused material” covers all material obtained in the covert investigation that is subsequently not used as evidence in court. So, in this case, it is probable that the unused material may include surveillance and telephone interception records on Lai and his accomplices. These are more than likely to contain national secrets, and the material itself may also reveal the highly sophisticated investigation techniques of the National Security Department. Clearly, it is most undesirable for any foreign lawyers to be allowed access to such national secrets.
This episode also demonstrates the need for urgent judicial reform, as required in the report of the 20th National Congress of the Communist Party of China, “The HKSAR Needs to Optimize Its Legal and Judicial System”. The Hong Kong Judiciary has clearly failed in its duty to safeguard national security under the National Security Law for Hong Kong
Article 63 of the National Security Law stipulates, inter alia, “a lawyer who serves as defense counsel shall keep confidential State secrets or personal information which he comes to know in the practice”. For foreign lawyers, there is clearly no effective means to ensure their compliance with this requirement once they depart Hong Kong after trial. Indeed, based on a past case, UK private counsel can be subject to coercion, compromise or control by the UK government. It boggles my mind why the court chose to ignore this key point and opened the door to foreign intervention, setting a terrible bad precedent. In effect, the court is opening a Pandora’s box with unforeseeable disastrous consequences!
The judges should not be so naive as not to know the consequences of their decision. There is little doubt the UK counsel would play to the gallery and lionize his client as “a champion of free speech and democracy” and criticize the National Security Law as the “iron fist” bent on “smashing all liberties and democratic aspirations in Hong Kong, in infringement of universally recognized human rights and democracy”, etc, and the international media would lap it up, and have a field day bashing China as the villain behind Lai’s misfortune. The only certainty in the court’s approval is that it would energize the Western media’s anti-China frenzy just as China is being demonized internationally, thanks to the biased mainstream media.
The antiquated court procedure as revealed in this case also left much to be desired. The application was first approved by Chief Judge of the High Court Jeremy Poon Shiu-chor. When the Department of Justice took the appeal against his decision to the Court of Appeal, the three judges were de facto the subordinate judges of the chief judge and thus highly unlikely to overturn their superior’s decision. Then the judicial procedure requires permission from the same Court of Appeal to allow the application to the Court of Final Appeal, which in effect means they would have to admit that their decision was wrong in the first place. Such a step is seen to be so superfluous. It only gives another opportunity for the court to insult the DoJ in the eyes of the public by requiring the government to pay court costs!
Then I found it incomprehensible that the Court of Final Appeal, in dismissing the secretary for justice’s application for leave to appeal to the CFA, cited technical grounds that they would not consider the “radically new points” the DoJ raised during the appeal because these points had not been examined factually nor canvassed in argument by the lower courts, and “allowing such grounds to be advanced in the top court would go against a legal doctrine set down in 2002, and undermine the fairness of the proceedings”.
In layman’s term, what the CFA seems to be saying is that “you (DoJ) may have some new valid arguments, but because those were not raised in the earlier court proceeding, the CFA will not now allow you even the opportunity for a full debate, hence the application for leave to appeal is dismissed.” One would have thought the function of the court is to seek the truth, not to obstruct the argument in observance of procedural limitations. How the law can aptly be described “as an ass” in this case!
I suspect, though without evidence, that the court’s seeming illogical insistence for the foreign lawyer to practice in this case may be due to their concern over the possible reaction of the foreign judges on the CFA, fearing that it may trigger their resignations in protest. Earlier this year, two senior British judges, Robert Reed and Patrick Hodge, resigned from the city’s top court, with the former making irresponsible and unfounded criticism saying it was impossible for him to sit in “without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression”. Admittedly, any further resignation of foreign judges would be played up to the hilt by the Western mainstream media, resulting in a crisis of confidence in the Hong Kong Judiciary among the business community.
As I have previously commented, our international panel of judges is a tempting and vulnerable target for Western forces’ interference in Hong Kong. The Western governments and anti-China groups would not miss any opportunities to pressure the judges to resign before telling the world that this signifies the failure of the Hong Kong Judiciary. In effect, our foreign judges are “time bombs”! In my view, one simple solution is to abolish the panel, and when there is a need to have a foreign judge sitting in our Court of Final Appeal, the Judiciary can simply handpick the appropriate foreign judge based on the expertise required of the specific case and approach the individual with an offer. This is similar to the recruitment of expert consultants by international organizations such as the World Bank and the United Nations.
Quite obviously, in the interest of justice and efficiency, it is preferable to conduct all national security trials in Chinese, and that all the judges, prosecutors and the defense team should all be Chinese.
The CFA decision has clearly set a dangerous precedent, and it can open the door to foreign interference not only in our judicial system, but potentially in many important aspects affecting our sovereignty and security. Therefore, it must be stopped in its tracks. It is only right and to be welcomed that the chief executive has promptly submitted a formal request for an interpretation of the National Security Law by the Standing Committee of the National People’s Congress to clarify whether overseas lawyers should be allowed to work on national security cases. Indeed, this practice is in accordance with the rule of law. The NPCSC is obliged to issue a clear clarification on this once and for all in the best public interest of Hong Kong.
This episode also demonstrates the need for urgent judicial reform, as required in the report of the 20th National Congress of the Communist Party of China, “The HKSAR Needs to Optimize Its Legal and Judicial System”. The Hong Kong Judiciary has clearly failed in its duty to safeguard national security under the National Security Law for Hong Kong.
The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is a former deputy commissioner of the Independent Commission Against Corruption.
The views do not necessarily reflect those of China Daily.