The National Security Committee is accused of overstepping its power by barring a visa for Timothy Owen
Hong Kong's Catholic pro-democracy activist and business tycoon Jimmy Lai faces a series of cases under repressive national security law. (Photo: AFP)
A Hong Kong court has rejected a plea from Catholic pro-democracy activist and business tycoon Jimmy Lai challenging a government decision to deny permission for a foreign lawyer for his trial in a slew of criminal cases.
Lai, 75, had requested a judicial review last month after Hong Kong’s national security committee had advised the immigration chief to reject any future visa applications for his overseas counsel Timothy Owen, Hong Kong Free Press (HKFP) reported on May 19.
Jeremy Poon, the High Court chief judge, in a written ruling, stated that Hong Kong Special Administrative Region (HKSAR) courts do not have jurisdiction over the national security committee’s work according to the security law.
“The HKSAR courts, as courts of a local administrative region, are not vested with any role or power over such matters of the [central government],” Poon said in his ruling.
“They [security committee and immigration authority] clearly fall outside the courts’ constitutional competence assigned to them under the constitutional order of the HKSAR,” Poon further added.
He cited the provision in the national security law that bars the disclosure of information related to the security committee’s work.
If the committee decisions were to come under the purview of the courts, then “such information would inevitably need to be disclosed in the course of the proceedings, thereby defeating the very purpose of the confidentiality requirement,” Poon said.
Lai had sought to hire Owen last year for his national security trial, with the Court of First Instance granting Owen’s admission as counsel last October.
The court ruling irked the Hong Kong authorities who then approached the Court of Appeal and Court of Final Appeal thrice to bar Owen from representing Lai which was rejected by the courts.
Following the defeat, Chief Executive John Lee invited Beijing to intervene, and the Standing Committee of the National People’s Congress (NPCSC) passed a legislative interpretation of the security law last December.
The NPCSC decision did not directly state any objections to Owen’s participation in the trial. However, it confirmed the power of the chief executive to do so.
The national security committee had used the NPCSC decision to convene a private meeting and decide that Owen’s participation in Lai’s trial would harm national security interests. The committee also advised the director of immigration to reject any further visa applications from Owen for the case.
Robert Pang, a senior counsel, who represented Lai had argued in court last month that the security committee had overstepped its powers by advising the Immigration Department to refuse Owens’ future visa applications.
“Any person aggrieved by its decision will have no recourse or remedy,” Pang said further adding that the committee could decide to lock up anyone it deemed a threat to national security.
Poon rejected Pang’s argument stating that the allegations were “some very extreme but unrealistic examples” of how the committee might abuse its powers if there were “no judicial rein” by the courts.
“These fanciful and indeed alarmist remarks must be dismissed as well,” the ruling read.
“Mr. Pang finally queried the effectiveness of the supervision and control of the [central government] over the [national security committee]. It must also be rejected as entirely baseless and wholly unwarranted,” Poon further added.
According to Hong Kong law, the courts must request a certificate from the chief executive to determine whether the participation of the foreign lawyer would involve, or harm, national security.
If the court fails to obtain the certificate, the Committee for Safeguarding National Security must step in, and this decision cannot be challenged in court.
Pang had argued in court that the NPCSC decision that came after the approval for Owen to join should be ignored.
Poon rejected the request stating that the December interpretation had the same effect “as at the date when the [national security law] came into effect.”
“It declares what the law has always been,” Poon stated.
Lai, the founder of the now-defunct popular pro-democracy newspaper, Apple Daily, has been remanded in custody since December 2020 and charged with a slew of national security cases.
He faces a total of four charges, including two counts of conspiracy to collude with foreign forces, one count of collusion with foreign forces, and one offense linked to allegedly seditious publications.
Last December, Lai was sentenced to five years and nine months in prison for a fraud case.
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