The dwindling freedom in Hong Kong over the past few years has been described as “death by a thousand cuts”. Critics have been jailed, elections have been transformed into “patriots only” affairs, journalists have been harassed and hundreds of thousands of people have left.
This week, an obscure legal development has, in the eyes of some legal experts, inflicted another cut on the city’s once revered legal system.
On 17 March, Hong Kong’s Court of Final Appeal (CFA), the city’s top bench, rejected an application from Jimmy Lai. The 77-year-old pro-democracy activist is now on trial for alleged national security offences – charges which could see the former media mogul spend the rest of his life in jail. Although the trial is well under way, Lai’s legal team have been trying to appeal against the decision to bar his preferred lawyer, Tim Owen KC, from representing him.
The details of the saga date back to 2022, when Owen was first approved to represent Lai. The Hong Kong government objected to Owen’s admission, but lost multiple appeals to have him blocked. So John Lee, the chief executive, turned to Beijing. In December 2022, the Chinese government issued an interpretation of the national security law, which had been imposed on the city in June 2020 to quell months of pro-democracy protests. The interpretation stated that the courts needed approval from the chief executive to admit foreign lawyers in national security cases.
Although Owen had been admitted to represent Lai before the interpretation was issued, Hong Kong’s national security committee nonetheless instructed the immigration department to deny him a work permit.
“It’s pretty well unheard of for somebody who is entitled to represent a client not to receive a work permit,” says Jonathan Sumption, a former supreme court judge who quit the CFA last year, warning that the rule of law was “profoundly compromised” in Hong Kong. “I think it tells us quite a lot about the view of the rule of law taken by the executive”. Sumption said that blocking Owen via a visa refusal was “a subterfuge” on the part of the government.
But the issue at the heart of Lai’s appeal was not the visa – but the fact decisions made by the national security committee cannot be legally challenged, a principle that has caused alarm in some legal circles.
Paul Harris SC, a former chairperson of the Hong Kong Bar Association, who fled the city in 2022 after being warned by the national security police that they were considering charging him with sedition, said that the principle “effectively gives the committee the powers of a police state”.
While the CFA did not give a reason for rejecting Lai’s appeal this week, it did so using a rule that is normally reserved for applications with “no reasonable grounds” or that are “frivolous”.
“This is another, among many, blows to the rule of law,” said Michael C Davis, a former law professor at the University of Hong Kong. “The CFA surely missed an opportunity to reign in what has become excessive resort to national security claims and to better articulate the boundaries, if any, of the committee’s immunity from review.”
Samuel Townend KC, chairperson of the Bar Council of England and Wales until this year, said that the CFA’s refusal to hear the appeal amounted to the court “washing their hands of any judicial oversight” of the national security committee.
Simon NM Young, a law professor at the University of Hong Kong, warned against reading too much into the CFA’s decision. He pointed to an earlier ruling which stated that the national security law was clear in its intent to immunise certain decisions from legal challenge. He said that by refusing to grant leave to appeal, the CFA judges may just have decided that Lai’s specific claim was simply without merit. “The question of judicial reviewability of a NSC [national security committee] decision on jurisdictional grounds remains open,” Young said.
But for Lai, it is the end of the road on this legal challenge. He will not be able to instruct his chosen lawyer in any future proceedings. With his national security trial expected to run until the autumn, and further appeals expected if he is convicted, there may be many more to come.
Hong Kong’s judiciary did not respond to a request for comment.
