Grenville Cross says the top legislative body has displayed great restraint and pointed Hong Kong in the right direction; the problem has been resolved in a manner compatible with “one country, two systems”.
On Dec 30, the Standing Committee of the National People's Congress (NPCSC) adopted an interpretation of Articles 14 and 47 of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). This followed a request from the chief executive, John Lee Ka-chiu, for a clarification of whether overseas lawyers can be specially admitted to conduct national security cases. The power to interpret the NSL is vested in the NPCSC (Art.65), and this is the first time it has been exercised in the 30 months since the its enactment in June 2020.
The interpretation became necessary after the media magnate, Jimmy Lai Chee-ying, who is facing trial on charges of collusion with foreign forces and publishing seditious content, was allowed by the Court of First Instance, without a consideration of possible national security implications, to retain a UK-based King’s Counsel, Timothy Owen, to represent him. Although the Legal Practitioners Ordinance (Cap.159, Sect.27(4)) enables overseas lawyers to be admitted on an ad hoc basis for particular cases if this is in the public interest (as where the lawyer possesses an expertise that is unavailable locally, or a suitable local lawyer cannot be retained), different considerations necessarily apply if an offense involves endangering national security. By virtue of the NSL (Art.3), the Hong Kong SAR is duty bound “to safeguard national security”, and problems may arise if a defense lawyer who lives and works in another part of the world becomes involved in a national security trial.
Whereas, under the NSL, police officers, prosecutors and judges involved in national security cases will have been appropriately vetted, and will also have committed themselves to upholding the Basic Law and bearing true allegiance to the Hong Kong SAR, no such mechanisms exist in relation to lawyers from the private sector who are instructed to defend criminal suspects. The NSL does, however, stipulate that “a lawyer who serves as defense counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he comes to know in the practice of law” (Art.63(2)). Although a local lawyer who violates this provision could face legal consequences, whether prosecutorial or disciplinary in nature, this is virtually impossible in the case of an overseas lawyer who lives in the UK.
Although it has been suggested that this is not a problem, given that, if an overseas lawyer were to breach the NSL (Art.63(2)), he could face disciplinary consequences from his own professional body in the UK, this is pie in the sky. Given the hostility that exists toward the NSL in British legal and political circles, the chances of an overseas lawyer being disciplined for having breached it are zero. Indeed, any lawyer who violated it by breaching its confidentiality requirement would likely be praised, not punished.
Thus, in June, 2020, Britain’s deputy prime minister, Dominic Raab, claimed the NSL was “in direct conflict with both Article 23 of the Basic Law and with China’s obligations under the Sino-British Joint Declaration”. In February, 2021, moreover, when he denounced the British barrister, David Perry KC, for having accepted instructions to prosecute Jimmy Lai in an unrelated case of unauthorized assembly in Hong Kong, he said “I don’t understand how anyone of good conscience, from the world-leading legal profession that we have, would take a case where they will have to apply the national security legislation at the behest of the authorities in Beijing, which is directly violating, undermining the freedom of the people of Hong Kong.”
Although the Lai prosecution referenced by Raab had nothing to do with national security (a blunder for which he has yet to apologize), Perry was pressured into withdrawing, and the incident demonstrated the extent to which anti-China elements are prepared to go to undermine Hong Kong’s legal system.
There has, moreover, been another highly sinister development in London, and this must also now be factored in. One of China’s most rabid critics is Conservative Party Member of Parliament Tom Tugendhat, who, in November 2019, became the first politician of substance to call for the position of the British judges in the Hong Kong Court of Final Appeal to be reviewed. He also co-founded the China Research Group, which is committed to undermining China, and he was sanctioned by China in 2021 for having “maliciously spread lies and disinformation” about alleged human rights abuses.
On Sept 9, 2022, Tugendhat, who claimed in 2021 that the law in Hong Kong was becoming “the tool of tyrants”, was appointed minister of state security, with a seat in the British cabinet. This means he is now able to give his distorted perspectives free rein in the highest echelons of government, as well as to influence the way in which the country’s security services conduct their operations.
If, therefore, the British security services were to request a British lawyer involved in a national security case in Hong Kong to disclose protected information about China’s national security arrangements, he would be placed in a very difficult situation, particularly if told he was under a duty to assist. If he refused to comply, he could be accused of being unpatriotic, and, given the pressure, there would be a clear conflict of interest. As was seen with the intimidation of David Perry, the British authorities are fully prepared to bully their own lawyers, however distinguished, if they do not play ball with them.
Although the Court of Appeal was told by Lai’s defense team that it had not been supplied with any State secrets, this misses the point. Investigations into national security breaches are conducted by the police force’s department for safeguarding national security (NSL Art.16), and the way it conducts its operations, both locally and overseas, may become an issue during the trial (and information of this type would be of great interest to Western intelligence, notably MI6 and the CIA). The need to protect such information is undoubtedly one of the reasons why the NSL makes provision for closed court hearings in some circumstances (Art.41(4)).
It must also be remembered that, if an overseas lawyer is instructed to represent a suspect in a national security (or other) case, he (like local lawyers) needs to be given the case papers well in advance of the hearing, so he can adequately prepare the defense case. As the Department of Justice’s Prosecution Code (2013) explains, a suspect is entitled to a fair trial, and this requires “the full and timely disclosure to the defense of all relevant or possibly relevant material” (Para.12.1). When an overseas lawyer is retained, this involves the case papers being sent to the UK, even if they contain State secrets. Upon arrival, the case papers could, even if precautionary measures were taken, become accessible to an intelligence agency determined to ascertain their contents.
It is clear, therefore, that difficulties can arise if an overseas lawyer is instructed to defend in a national security case, although foreign lawyers based in Hong Kong are in a different situation. If, for whatever reason, they were to disclose confidential information in violation of the NSL (Art.63(2)), there would clearly not be the same difficulties over prosecuting or disciplining them. Such people have a real nexus to the city, and are not just passing through.
In its interpretation, the NPCSC has concluded that Hong Kong already possesses the powers necessary to address the question of overseas lawyers, and it can itself resolve the issue. It has not banned overseas lawyers, but pointed out how existing procedures can be operated to best advantage. By reference to the NSL’s Art.47, which requires the courts to obtain a certificate from the chief executive “to certify whether an act involves national security or whether the relevant evidence involves State secrets,” it has concluded that this covers situations where an overseas lawyer seeks admission to conduct a national security case.
In other words, when the Court of First Instance is considering an application from an overseas lawyer to be specially admitted to conduct a national security trial, it will, if it is minded to grant the application on its merits, need to obtain a certificate of approval from the chief executive, who chairs the Committee for Safeguarding National Security of the HKSAR (CSNS). Only if the certificate (which binds the courts) authorizes the admission of the overseas lawyer would the lawyer be admitted by the court, and, when making his decision, the chief executive would have to bear in mind that a lawyer without local qualifications could pose a risk to national security.
There will, thus, be no blanket prohibition on overseas lawyers appearing in national security cases, at least for now, and decisions will be taken on a case-by-case basis, depending on the particular facts. If, as in Owen’s case, no certificate was obtained by the court before admitting the overseas lawyer, the interpretation says it is down to the CSNS to take the final decision, “based on the situations and questions which arise in accordance with Article 14 of the national security law”. The NSL confers wide powers on the CSNS, including policy formulation, advancing the development of the legal system, and coordinating significant operations concerning national security (Art.14), and it will now have to decide if Owen’s admission is justifiable from a national security viewpoint.
Although some people had feared there would be a complete ban on foreign lawyers appearing in national security cases, this has not materialized, which will be a relief to many. As things stand, therefore, foreign lawyers who live and work in Hong Kong can still conduct such cases, as also can overseas lawyers if the case does not involve any known risks, although the CSNS will now need to conduct an overall risk assessment in relation to such people. The interpretation, moreover, is solely concerned with national security cases, and it has no implications for other types of criminal cases, meaning overseas lawyers can still be admitted if it is in the public interest.
Although the Basic Law provides that criminal suspects can choose their own lawyers (Art.35), the interpretation in no way conflicts with this. The right to choose a lawyer simply means that suspects can choose their lawyers from those barristers or solicitors who are in general practice in Hong Kong. There is no constitutional right to import an overseas barrister whose principal practice is in another jurisdiction.
It must also be emphasized that any restrictions the chief executive may impose on the admission of overseas lawyers in particular national security cases do not represent any departure from international practice. Hong Kong is one of the very few common law jurisdictions that allows overseas lawyers to conduct cases in its courts, and most places rely entirely on their own lawyers. In the major jurisdictions, including Australia, the UK and the US, it is not customary to grant overseas lawyers a right of appearance in criminal cases, let alone in national security trials.
In light of the interpretation, the judiciary will now ensure that a certificate is obtained in any future applications for admission of an overseas lawyer in national security cases. This, however, does not mean that legislative effect should not be given to the interpretation, and this can be achieved by a simple amendment to the Legal Practitioners Ordinance (Cap.159, Sect.27(4)). This would stipulate that, in national security cases, there can be no ad hoc admission of a barrister in the absence of a certificate of approval from the chief executive. If, however, the risk assessment by the CSNS reveals that the dangers inherent in involving overseas lawyers in national security trials are fundamental and cannot be neutralized, a wider amendment excluding them altogether may be unavoidable.
Although the issue of overseas lawyers has generated massive interest for many weeks, it has now been settled in a reasonable way that respects local sensibilities. The NPCSC has displayed great restraint, and pointed Hong Kong in the right direction. Everybody now knows exactly where they stand, and the problem has been resolved in a manner compatible with the “one country, two systems” principle, which is hugely reassuring for those who value the rule of law.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.