tHe has diminished freedom in Hong Kong over the past few years.Death by a thousand cuts”. Critics were jailed, elections turned to “patriots only,” journalists were harassed, and hundreds of thousands left.
This week, an obscure legal development gave another cut to a once-respected legal system, in the eyes of some legal experts.
On March 17, Hong Kong's Final Court of Appeals (CFA), the city's top bench, rejected an application from Jimmy Lai. The 77-year-old democratic activist is currently on trial for alleged national security crimes. This is an accusation that allows a former media magistrate to spend the rest of his life in prison. The trial is on track, but Lye's legal team is about to appeal to a decision to ban his preferred lawyer, Tim Owen KC, from his representative.
Details of the SAGA date back to 2022, when Owen was first approved to represent LAI. The Hong Kong government opposed Owen's approval, but lost multiple appeals to block him. So, CEO John Lee turned his eyes to Beijing. In December 2022, the Chinese government issued an interpretation of the National Security Act. The National Security Act was imposed on the city in June 2020 to quell months of democratic protests. The interpretation said the court needs approval from the CEO to recognize foreign lawyers in national security cases.
Although Owen was permitted to represent LAI before the interpretation was issued, Hong Kong's National Security Commission has still directed the immigration department to deny work permits.
“Former Supreme Court judge Jonathan Samps, who left the CFA last year, warns that the rule of law has been “deeply violated” in Hong Kong, says: “I think it tells us a lot about the views on the rule of law taken by executives.” Sumption said blocking Owen via Visa's rejection was “serious” on the part of the government.
However, while the issue at the heart of Rai's appeal was not a visa, the factual decisions made by the National Security Commission cannot be legally challenged. This is the principle that has sparked vigilance in some legal boundaries.
Paul Harris SC, former chairman of the Hong Kong Bar Association, fled the city in 2022 after being warned that he was considering requesting agitation from the National Security Police, but said the principle would “effectively grant the commission the power of the police state.”
The CFA gave no reason to refuse LAI's appeal this week, but did so using rules reserved for applications that are normally “no reasonable basis” or “frivolous.”
“They're a great way to help them get to know each other,” said Michael C. Davis, a former law professor at the University of Hong Kong. “The CFA will ensure that it misses the opportunity to govern anything that has become an over-claimed national security claim and will better clarify the boundaries of immunity from the committee's review.”
Samuel Townend KC, chairman of the Bar Councils in England and Wales until this year, said that the CFA's refusal to hear the appeal was equivalent to a national security committee's “washing the hands of judicial supervisors.”
Simon NM Young, a law professor at the University of Hong Kong, warned against reading too much of the CFA decision. He pointed to previous rulings that stated that the National Security Act was clear intent to exempt certain decisions from legal challenges. He said that the CFA judge may have simply decided that certain claims of LAI are not merit, by refusing to allow leave of appeal. “The issue of possible judicial review of the NSC [national security committee] Decisions regarding the basis of the jurisdiction remain open,” Young said.
But for LAI, it is the end of this path of legal challenge. He cannot direct the selected lawyer in future cases. His national security trial is expected to run until the fall, and more may come as further appeals are expected if he is convicted.
The Hong Kong judiciary did not respond to a request for comment.
