After the Standing Committee of the National People’s Congress of China interpreted the provisions of the “Hong Kong National Security Law”, the Hong Kong SAR government moved to amend the “Legal Practitioners Regulations” to include national security restrictions.
Jimmy Lai, the founder of Next Media, hired British lawyers to defend his case of the “Hong Kong National Security Law”. After the Standing Committee of the National People’s Congress interpreted the law for the first time, the Hong Kong Special Administrative Region government recently started the process of amending the law to restrict foreign lawyers from appearing in court.
On March 22, the Department of Justice of the Hong Kong Special Administrative Region submitted a draft amendment to the “Legal Practitioners Ordinance” to the Legislative Council, adding a national security review mechanism under the responsibility of the chief executive of the Hong Kong Special Administrative Region to the provisions on the approval of foreign lawyers hired to appear in court in Hong Kong, and intends to stipulate that the chief executive’s relevant No one, including the Hong Kong court, has the right to comment on the ruling.
The bill has passed the first reading in the Legislative Council, and will be deliberated by the relevant committees under the Bills Committee on March 31, after which it will be submitted to the General Assembly for the second reading.
People familiar with Hong Kong law and overseas human rights activist groups commented on BBC Chinese that this revision will reduce the defendant’s choice of defense lawyers and weaken the right of the defendant to a fair trial in the case of the National Security Law. The SAR government insists that the amendments have “no adverse impact” on these rights.
What is the Legal Practitioners Regulation?
Hong Kong SAR LawLegal Practitioners OrdinanceIt aims to regulate the qualifications and registration of lawyers and barristers, the establishment and operation of law firms, whether overseas lawyers can be hired to practice in Hong Kong, etc., and how the Hong Kong Bar Association and the Hong Kong Law Society perform their industry self-regulatory powers.
This also includes how overseas lawyers can go to Hong Kong to practice temporarily, such as appearing in court for defense.
image source,BBC News Chinese
After the UK handed over Hong Kong’s sovereignty to China in 1997, Hong Kong courts retained the system of allowing barristers from overseas common law regions to appear in court in Hong Kong on a case-by-case basis, including lawyers from the UK.
Article 81 and Article 94 of China’s “Hong Kong Basic Law”“The judicial system originally practiced in Hong Kong shall be retained except for the changes caused by the establishment of the Hong Kong Special Administrative Region Court of Final Appeal.” Regulations on Work and Practice in the Special Administrative Region”.
According to the “Legal Practitioners Ordinance”, defendants and plaintiffs in criminal and civil cases can apply to the Court of First Instance of the High Court through the Hong Kong Bar Association for “ad hoc admission” to hire lawyers from common law regions outside Hong Kong to appear in court in Hong Kong .
In the same way, the Department of Justice of the Special Administrative Region hired British barristers as outsourced prosecutors (outsourced public prosecutors). The Department of Justice once hired British David Perry KC to act as an outsourced prosecutor in the case of Li Zhiying and others inciting to participate in an illegal assembly on August 18, 2019. Perry later resigned and the matter turned into a diplomatic row.
Under normal circumstances, as long as the Standing Committee for the Accreditation of Overseas Barristers of the Bar Association approves it and the Department of Justice does not object, the Court of First Instance of the High Court will issue the accreditation.
What is the main purpose of the amendment?
In the dispute over Jimmy Lai’s employment of overseas lawyers, the National Security Office of the Central Government of China in Hong Kong stated that the participation of overseas lawyers in relevant national security cases violated the fundamental legislative intention of the National Security Law, and the legal logic and public perception of the handling of national security cases may bury Unpredictable hidden dangers.
When commenting on the proposed interpretationTang Jiahua, a member of the Executive Council of the Hong Kong Special Administrative Region, questioned whether the British barrister hired by Jimmy Lai “would not be suitable for carrying out national security cases because of the current hostility between the United Kingdom and China, and under the pressure of the British government or public opinion.” responsibility?”
Tang Jiahua also proposed that the “Legal Practitioners Ordinance” should be amended in the long run to deal with the “historical problems” of overseas, especially British lawyers practicing in Hong Kong.
Secretary for Justice Lam Ting-kwokWhen submitting the draft to the Legislative Council on March 22, the statement stated thatthe draft provisions “apply only to cases involving national security, not to any civil, commercial or even criminal cases that do not involve national security”, but he also pointed out that “some civil cases that are not criminal in nature may also involve National security, such as judicial review involving challenges to executive agencies exercising statutory powers to maintain national security.”
Lin Tingguo also said: “The right to choose a legal representative guaranteed by the Basic Law is not absolute. Court cases clearly show that this right only refers to the right to choose a lawyer or barrister with full qualifications in Hong Kong as a legal representative, but does not Including overseas lawyers who are not fully qualified to practice in Hong Kong.”
There are still many foreign judges, barristers and lawyers in Hong Kong who are hearing and practicing. At the same time, foreign barristers are accepted to come to Hong Kong to appear in court temporarily.
Procedures for Hiring Overseas Lawyers after the Amendment
According to the provisions of the revised draft, if you want to apply for overseas lawyers to come to Hong Kong to handle national security cases, the first situation is to take the initiative to accept the screening process-that is, to provide reasons and evidence to the Secretary for Justice, and then the Secretary for Justice will refer it to the Chief Executive for review . The Chief Executive deems that overseas lawyers going to Hong Kong to appear in court “does not involve national security or will not be detrimental to national security”, and will issue a “Notice of Permission to Apply”.
Only after obtaining the notification can the applicant apply to the Court of First Instance of the High Court for ad hoc approval. After the court receives the application, the court must apply for the “Certificate of the Chief Executive” stipulated in Article 47 of the “Hong Kong National Security Law”. to national security”.
The second situation is that overseas barristers apply for recognition in accordance with the old law, and the court or the Secretary for Justice believes that the case involved is a national security case, the court must apply for a “Certificate of the Chief Executive” on its own initiative or at the request of the Secretary for Justice , to determine whether the case is a national security case. If the chief executive decides that the case is a national security case, the applicant will have to go through the screening process again.
In either case, unless the court obtains a “Certificate of the Chief Executive” affirming that the overseas lawyer’s participation in the Hong Kong national security case “does not involve national security” and “will not be detrimental to national security”, the court shall not admit the overseas lawyer Participate in the national security case. In other words, to obtain permission to appear in court in a Hong Kong national security case, an overseas barrister must be issued two permits by the Chief Executive.
The draft proposes to set up a review mechanism to deal with situations such as the discovery of new evidence that the case is actually a national security case after the approval of the project is issued, as well as “new or previously unconsidered national security risks.” The court may have to re-apply for the “Chief Executive’s Certificate” according to the review result. In other words, the chief executive can overturn the permits he has issued in response to “new circumstances”.
In addition, regardless of any of the above-mentioned stages, the draft stipulates that “the chief executive’s decision cannot be challenged or brought into litigation”, that is, the chief executive’s decision is no different from the final judgment of the court.
image source,China News Service
The draft stipulates that the hiring of overseas lawyers in national security cases must apply to the Chief Executive for permission, and his decision cannot be challenged.
What is the relationship between Li Zhiying and the amendment?
On October 19, 2022, the High Court of the Special Administrative Region approved Li Zhiying to hire British Timothy Wynn Owen KC (Timothy Wynn Owen KC) to defend him in court.
This is the first trial of the crime of “colluding with foreign countries or foreign forces to endanger national security” under the “Hong Kong National Security Law”. Owen’s application was opposed by the SAR Department of Justice and the Hong Kong Bar Association. This case will bring positive and positive contributions, and the project will be approved accordingly.
The Attorney General appealed, and after failing to apply to the High Court for final leave to appeal, the DoJ applied directly to the Court of Final Appeal for leave to appeal.
In the hearing of the leave to appeal of the Court of Final Appeal, the former Secretary for Justice Yuen Kwok-keung, SC, who appeared in court on behalf of the Department of Justice, proposed that the charges faced by Li Zhiying may involve state secrets, and the “Hong Kong National Security Law” stipulates that the SAR government has the responsibility to prevent Crimes that endanger China’s national security, and the “Hong Kong National Security Law” has a unique legislative background. Unless it is a very special situation, generally speaking, foreign barristers should not be allowed to participate. If foreign lawyers do not grasp China’s national interests and values, “any statement is very dangerous”.
Yuan Guoqiang also said that although Owen has rich experience, he “does not understand the local situation” and cannot “contribute” to the trial of Jimmy Lai.
Representing the Bar Association, Chai Shaotong, SC, stated in court that the association supports the DoJ’s view.
Owen QC has been hired to appear in court in Hong Kong many times.
On November 28 of the same year, the Court of Final Appeal rejected the Department of Justice’s application for permission to appeal, that is, it maintained the approval of Li Zhiying’s employment of Owen.The Chief Executive of the Special Administrative Region, Lee Ka-chao, announced thatSubmit a report to Beijing and ask the Standing Committee of the National People’s Congress to interpret the law.
Li Jiachao said at the time that he received a letter from the Chinese central government in accordance with the “Hong Kong National Security Law” the day before the judgment, requesting him to submit a report on the implementation of the law. He said he had noticed the relevant judgment of the Court of Final Appeal and would mention the case in the report, and suggested that the Standing Committee of the National People’s Congress be requested to interpret the provisions of the Hong Kong National Security Law.
at the same time,Hong Kong’s “Sing Tao Daily” quoted sources as sayingthe Chinese central government is studying extending the “designated judge” system of the “Hong Kong National Security Law” to lawyers and barristers, that is, defendants charged with crimes related to the “Hong Kong National Security Law” can only choose defenders from the list of “designated lawyers” .
The interpretation decision of the Standing Committee of the National People’s Congress of China did not require the revision of the “Regulations on Legal Practitioners”, but the Department of Justice of the Special Administrative Region cited the interpretation decision to propose a draft revision, and said it had the support of the Legal Affairs Committee of the Standing Committee of the National People’s Congress.
On December 30, the Standing Committee of the National People’s Congress passed a decision to interpret the law, which stated: “The issue of whether overseas lawyers who do not have the full qualifications of the Hong Kong Special Administrative Region can serve as defenders or agents ad litem in crimes endangering national security belongs to the “Chinese People’s For issues that need to be identified as stipulated in Article 47 of the Law of the Republic of Hong Kong Special Administrative Region on Safeguarding National Security, a certificate issued by the Chief Executive shall be obtained.”
“If the court of the Hong Kong Special Administrative Region fails to submit and obtain a certificate issued by the Chief Executive on these issues, the National Security Committee of the Hong Kong Special Administrative Region shall, in accordance with the provisions of Article 14 of the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” Perform statutory duties and make relevant judgments and decisions on such situations and issues.”
Will the amendments have a direct impact on Jimmy Lai’s “collusion” case?
March 21, 2023When the SAR government announced that it would propose the amendment to the Legislative Council, it stated that “it will not affect any application for ad hoc approval that has been filed or processed by the court before it takes effect.”
So far, Li Jiachao has not issued any instructions regarding Li Zhiying’s appointment of Timothy Owen. or ask the court to apply for a certificate from Li Jiachao, proving that the employment of Owen will not affect China’s national security. The High Court will hear the petition on April 28.
Li Zhiying hopes that Owen will appear in court to defend him in the “conspiracy with foreign forces to endanger national security” case.
The Committee for Freedom in Hong Kong Foundation (Committee for Freedom in Hong Kong Foundation), a multinational non-governmental organization, has long been concerned about the case of Jimmy Lai. Mark Sabah, Director of UK and EU Initiatives and Public Affairs of the Commission, commented on BBC Chinese that the interpretation of the law has caused damage to Hong Kong’s judicial independence, and it is hard to repent. It’s just trying to save reputation.
Hana Young, deputy director of Amnesty International Asia Pacific, also told BBC Chinese that the organization is concerned that Jimmy Lai’s legal rights will be further weakened.
Rong Haoxin said: “Although the authorities claim that the draft is not retroactive, there are indications that the Hong Kong government will continue to use different means to specifically prevent Jimmy Lai from hiring his preferred lawyer.”
The High Court of the Special Administrative Region had already prepared to start the trial of Jimmy Lai’s “collusion” case. It had previously announced that the retrial would be postponed to September 25, 2023 due to the Chief Executive’s request for an interpretation of the law.
Zhang Guojun, deputy director of the Department of Justice, responded to how to deal with existing project permits, saying that in addition to applying to the Hong Kong court for special project permits, overseas lawyers must comply with other Hong Kong laws, including the “Immigration Ordinance”. work in Hong Kong.
Tang Jiahua, a member of the Administrative Council of the Special Administrative Region, even said that even if Owen obtains the permission of the court, he still needs to obtain a work visa from the Immigration Department of the Special Administrative Region, which involves meeting any requirements raised by the government that have nothing to do with the court order.
The Department of Justice and the Bar Association objected to allowing Owen to go to Hong Kong to represent Jimmy Lai in court. After the relevant appeal was rejected by the Court of Final Appeal, Chief Executive Li Jiachao asked the Standing Committee of the National People’s Congress of China to “interpret the law”.
English “South China Morning Class”Li Tung-kwok, a member of the National Committee of the Chinese People’s Political Consultative Conference and a member of the Hong Kong Legislative Council, was quoted as saying that the Immigration Department will consider whether the applicant has any “safety concerns” before issuing a work visa to him. Li Tung-kwok has successively served as Director of Immigration and Security Bureau of the Special Administrative Region.
According to Ming PaoChen Hongyi, a member of the Hong Kong Basic Law Committee of the Standing Committee of the National People’s Congress of China and a chair professor of constitutional law at the University of Hong Kong’s Faculty of Law, said at an academic forum on March 23 that he believed the court needed to re-examine Owen’s approval in Jimmy Lai’s “collusion” case qualifications.
According to the report, Chen Hongyi asked rhetorically, after the National People’s Congress interpreted the law and the “Legal Practitioners Regulations” amended, it is stipulated that the chief executive certificate is required, “If you were a judge, would you let him (appear in court) according to the last approval”?
Most of the overseas barristers in Hong Kong are from the UK
The Hong Kong Bar Association Standing Committee for the Qualification of Overseas Barristers publishes the number of foreign barristers applying to appear in court in Hong Kong every year, but it does not break down where these applicants come from.
However, Antony Sassi and David Smyth, lawyers of Reynolds Porter Chamberlain (RPC) in Hong Konghas written thatbecause of the “sister relationship” between Hong Kong and other common law jurisdictions – that is, the historical connection between the common law jurisdiction and the British judicial system – and the mutual exchange between the British and Hong Kong barristers, “the project admits the applicant Almost all of them are well-known England QC”.
In the case of Li Zhiying’s employment of Owen in the appeal hearing of the Court of Final Appeal, Peng Yaohong, Senior Counsel representing Li Zhiying, pointed out that Owen had received cases in Hong Kong many times.
The British Foreign Office responded to BBC Chinese’s views on Hong Kong’s amendments, saying that the UK’s position on Hong Kong affairs has not changed, and pointed out that the UK has once again expressed its concern to the UN Human Rights Council about the human rights situation in Hong Kong under the “Hong Kong National Security Law”.
“We urge China to uphold its commitments in the Joint Declaration, a treaty agreed by China and the UK and registered with the United Nations.”
Prior to this, Chinese Foreign Minister Qin Gang told the UN Human Rights Council on February 27Published a video speech saying: “Since the implementation of the “Hong Kong National Security Law”, Hong Kong is in a new stage from chaos to governance to governance and prosperity. We will unswervingly and comprehensively implement the “one country, two systems” policy, and resolutely safeguard national sovereignty, security and development interests , to maintain Hong Kong’s prosperity and stability.”
Arguments for and against the amendment
The Secretary for Justice, Lam Ting-kwok, said at the Legislative Council meeting: “We must emphasize again and again the Bill’s importance to the rule of law, the independent judicial power of the courts guaranteed by the Basic Law and the power of final adjudication, as well as the parties to the proceedings to choose legal representatives and receive a fair trial. None of the rights were adversely affected.”
Dr. Li Enhao, a visiting research fellow at the School of Law of King’s College London, does not agree with this statement. He commented on BBC Chinese that the chief executive’s decision on whether overseas lawyers can go to Hong Kong to participate in national security cases is not subject to judicial challenges, “it means that the chief executive can make arbitrary decisions without judicial restrictions, which will inevitably weaken judicial independence and the separation of powers. The principles of checks and balances – they are fundamental principles of good governance”.
Li Enhao is also worried that after the law is amended, the Secretary for Justice can use his power to ask the chief executive to determine whether certain commercial cases involve national security, and then make a decision whether to allow overseas barristers to participate. or civil fair trial”. For example, he said that commercial disputes between foreign-funded and Chinese-funded enterprises are cases that may “suffer”.
The Hong Kong National Security Office stated that allowing overseas lawyers to appear in court in Hong Kong national security cases violates the original legislative intent of the “Hong Kong National Security Law” to “effectively prevent, deter, and punish” endangering China’s national security.
In the revised draft of the “Legal Practitioners Ordinance” proposed by the Department of Justice, the “designated lawyer” system mentioned by “Sing Tao Daily” does not appear. The definition of “is ambiguous. In the draft amendment, the chief executive’s power to refuse overseas lawyers to participate in the case is unrestricted. This will directly affect the choice of the defendant’s appointment of a lawyer and weaken their right to choose their own lawyer.
He said: “In the past period of time, in addition to proposing amendments, the Hong Kong government has also taken other measures to weaken the right of defendants to choose their preferred lawyers, such as the reform of the legal aid system. The multi-pronged approach of the government has made the Local lawyers and even overseas barristers with expertise are afraid to represent national security defendants, which also reduces the willingness of overseas barristers to participate in other local cases. After the amendment is passed, it will only further narrow the space for national security defendants to choose lawyers to represent them.”
“This amendment…is certainly not a good thing for Hong Kong’s judicial system, public confidence in judicial independence and the rule of law, and even the business environment. This amendment is certainly not a good Hong Kong story.”
Rong Haoxin of Amnesty International commented on BBC Chinese that the “Hong Kong National Security Law” has weakened the guarantee of a fair trial in related cases, and the draft amendment to the “Legal Practitioners Regulations” will give the government the right to veto the defendant’s employment of foreign lawyers. This would “seriously threaten the independence and impartiality of the judiciary and the human rights of the accused to international recognition and to choose their own legal representation”.
The chairman of the Hong Kong Bar Association, To Gankun (middle), expressed his support for the amendment before the draft amendment was submitted to the Legislative Council. (profile picture)
Before the SAR government formally submitted the bill, the Hong Kong Bar Association and the Hong Kong Law Society had publicly expressed their support for the amendment.
Chen Zeming, President of the Law Society of Hong Kong March 24said at a press conference, the Law Society will actively study the draft provisions and then make a formal response. But he said that it is “a very unique thing” for Hong Kong to allow overseas lawyers to practice locally, and “most countries in the world do not allow it.”
Chen Zeming said: “The United States is the best example. It cannot allow a non-American practicing lawyer to appear in court. Hong Kong’s system due to historical reasons actually demonstrates that Hong Kong is an international city and an inclusive city…I welcome the government not to use A one-size-fits-all approach prohibits all non-local practicing barristers from participating in local cases.”
Chen Zeming also said that many mainland Chinese officials he has contacted support maintaining the system of allowing foreign lawyers to practice in Hong Kong, including Xia Baolong, director of the Hong Kong and Macau Affairs Office of the State Council of China. “He told me this in person.”
On March 15, the chairman of the Bar Association, Mr. Du Gankun, SC, delivered a letter to the Hong Kong office directly under the Central Government of China.“Ta Kung Pao”Said that the association understands that this amendment “in no way affects the right of all parties to choose legal representatives in non-national security cases.” “One of the purposes of the proposed amendment is to hope that the relevant procedures will not be abused.”
The Global Times, a tabloid under the official People’s Daily of the Communist Party of ChinaMarch 23rdChen Xiaofeng, secretary-general of the Hong Kong Legal Exchange Foundation, was quoted as saying that the amendment added a “screening procedure” for national security cases, “aiming to eliminate those applications that are unreasonable and waste the resources of the court and all parties.”