Hong Kong’s High Court issued a ruling on May 19, dismissing the application for judicial review by the legal team of Jimmy Lai, founder of Apple Daily Newspaper and the Next Digital media group, in an effort to overturn the Committee for Safeguarding National Security’s “recommendation” to the Immigration Department, to deny British lawyer Tim Owen any working visa to come to Lai’s re-scheduled trial in September.
After Apple Daily’s headquarter was raided and Lai arrested by Hong Kong’s national security police on August 10, 2020, multiple charges were brought against Lai, including “collusion with foreign forces” under the city’s NSL, a law imposed by Beijing in June 2020.
Tim Owen KC, a Briton, has been part of the legal team defending Jimmy Lai’s NSL-related trial was originally scheduled for December last year.
The government (Department of Justice) wanted Owen out of Lai’s case, with the rationale that engaging foreign lawyers in an NSL case would post “security risks.” All courts ruled in favor of Lai using overseas counsel.
This prompted Chief Executive John Lee Ka-chiu to step in overnight, calling for Beijing to intervene and overrule the decision made by Hong Kong’s high court. Beijing did not give an immediate reply, resulting in the hearing of the national security-related part of Lai’s case being postponed to September, awaiting the resolution of the dispute. With no hearing coming up, Tim Owen left Hong Kong after finishing his other commitment, awaiting a final decision.
Hong Kong’s Committee for Safeguarding National Security made a “recommendation” to immigration to deny Owen’s visa application in view of “national security risks.” In response, Lai’s team recently filed a judicial review application to have this “recommendation” overturned.
The application for judicial review was based on the argument, as stated by senior counsel Robert Pang on Jimmy Lai’s team, that when Beijing interpreted Hong Kong’s national security laws (HKNSL), it stated that if Hong Kong courts did not obtain a certificate from Hong Kong Chief Executive regarding the participation of overseas lawyers in national security cases, the Committee for Safeguarding National Security should intervene and make judgments based on Article 14 of the HKNSL. However, the Article does not grant the Committee for Safeguarding National Security any other powers, including suggesting to the immigration to refuse visa applications from overseas lawyers. The Committee for Safeguarding National Security exceeded its authority by recommending to Immigration that it should deny the visa application of Owen. Such action (making this recommendation) should therefore be viewed as unconstitutional or invalid.
In the written ruling to reject the application for review, High Court’s chief judge Jeremy Poon stated that according to the provisions of the HKNSL, “No institution, including the executive authorities, legislature, and judiciary, organization or individual in HK shall interfere with the work of the Committee for Safeguarding National Security,” “the legislative is not subject to review based on any alleged incompatibility as between the NSL and the Basic Law,” and “the HKSAR courts have no power to hold any provision of the NSL to be unconstitutional or invalid.”
The judge concluded that the relevant recommendation did not exceed the authority conferred by the HK NSL, and the Director of Immigration did not exceed the authority conferred by the HK NSL.
Regarding the provisions in the HK NSL that “decisions made by the Committee for Safeguarding National Security are not subject to judicial review,” Robert Pang originally argued that it only applies to decisions within the jurisdiction of the Committee for Safeguarding National Security. The court can and should intervene if the Committee for Safeguarding National Security’s decision exceeds its jurisdiction. He questioned whether all decisions made by the Committee for Safeguarding National Security could not be challenged, as that would grant it even greater power than the Chief Executive. For example, would the court be powerless to intervene if the Committee for Safeguarding National Security imprisons someone until death or confiscates their assets? “I’m afraid we are saying goodbye to a huge chunk of the rule of law,” he said.
Last Tuesday, more than 100 prominent publishers and editors around the world—including 2021 Nobel Peace Prize laureates Dmitry Muratov and Maria Ressa—signed a joint statement initiated by Reporters without Borders, calling for Lai’s immediate release.