Monday, December 26, 2022

Henry Litton: Red Alert: Hong Kong Judicial Independence Under Existential Threat (Comment on the Admission of Owen KC)

Red Alert: Hong Kong Judicial Independence Under Existential Threat
The distressing tale of the admission of Owen KC to the Hong Kong Bar

Does the National Security Law (NSL) by itself render unlawful an act of a High Court judge plainly lawful under common law? If trust in the foundation of the legal system were sorely shaken, like an earthquake, it cannot be easily restored.

Introduction
The common law shares fundamental values right across the globe, but the practice and procedures of the courts often differ. Barristers play an important role in that process. An outside perspective has sometimes proved extremely valuable in throwing light on particularly complex issues.

The Court’s discretion in ad hoc admissions
Because there is a strong public interest in the proper administration of justice, s.27(4) of the Legal Practitioners Ordinance confers a broad discretion on the High Court to admit barristers from overseas to conduct particular cases in the local courts. This is referred to as ad hoc admissions, the judicial discretion to be exercised on a case by case basis.
     How to discharge the functions under s. 27(4) is a matter largely of value judgement, and there is no one better qualified to do that than a seasoned High Court judge. The criteria for that exercise are well established. Apart from personal qualifications and the nature of the case involved, there is the question whether the barrister concerned would add a significant dimension to the case.
      All this is covered by Article 94 of the Basic Law which provides as follows:
“On the basis of the system previously operating in Hong Kong, the Government of the Hong Kong Special Administrative Region may make provisions for local lawyers and lawyers from outside Hong Kong to work and practise in the Region”.
The focus of ad hoc admissions
As can be seen, the discretion to admit an overseas barrister under s.27(4) is narrowly focussed. It is concerned with case management. The public interest involved is the proper conduct of legal proceedings and the part to be played by the barrister in that process, in relation to the particular case for which he has been briefed.
     How this purely domestic matter has evolved to become one of international notoriety, fomenting a constitutional crisis in Hong Kong of gigantic proportions is, to say the least, surprising and disturbing. This distressing story is set out below.

The prosecution of Mr Lai Chee Ying for sedition
When Mr Jimmy Lai Chee Ying, founder of the newspaper Apple Daily, faced serious criminal charges, his solicitors engaged the services of Mr Timothy Owen KC from the United Kingdom to lead a team of local barristers.
      Mr Lai is charged with conspiracies with three others. The indictment falls under two broad headings: (1) conspiracies to publish and distribute seditious material contrary to sections 10, 159A and 159C of the Crimes Ordinance and (2) conspiracies to collude with a foreign country or external elements to endanger national security, contrary to Article 29(4) of the NSL.

Mr Owen KC’s ad hoc admission to the Hong Kong Bar
In order to render legal services in Hong Kong, Mr Owen KC applied for an ad hoc admission. His application was supported by a counsel’s certificate setting out matters that might arise at the trial (or before the trial as preliminary issues) including the scope and reach of NSL 29(4), the interface between that provision and the fundamental rights and freedoms under Chapter III of the Basic Law. The certificate also envisaged a challenge to the constitutionality of the provisions in the Crimes Ordinance under which Mr Lai was charged.
     No question arose regarding Mr Owen KC’s qualifications. He was described by the Court of Appeal as “a renowned specialist in criminal, public and human rights law, with substantial experience in cases concerning national security and freedom of speech. He has a wealth of experience in different jurisdictions and has appeared before the courts of Hong Kong in quite a few important cases”.
     He was not, of course, briefed to deal solely with the issues raised in counsel’s certificate. The trial was scheduled to last many weeks and his main responsibilities would be to deal with the evidence and other issues as the trial proceeds, leading the local team.
     As regards s.10 of the Crimes Ordinance under which Mr Lai was charged, this has been in the statute book since colonial times and Mr Owen KC would plainly have much to contribute to the constitutional issue said to be involved concerning that section, if indeed he should think such a challenge appropriate.
     As regards the interpretation and application of NSL 29(4), the Court of Final Appeal has, in an earlier case concerning Mr Lai’s bail application, embarked upon a detailed analysis of the compatibility between provisions in the NSL and those appearing in the Criminal Procedure Ordinance. The CFA, with great skill, navigated comfortably in those troubled waters; there is no reason to think that NSL 29(4) would pose insuperable problems in Mr Lai’s prosecution in a common law court, handled by a common law barrister of Mr Owen KC’s standing.
     Mr Owen KC’s application was dealt with by Poon CJHC on paper who, applying well-worn criteria, allowed the admission.

Court of Appeal
The Secretary for Justice was dissatisfied and took the matter on appeal to the Court of Appeal (Kwan VP, Chu VP and Au JA). That court found no basis to interfere with Poon CJHC’s exercise of judicial discretion and dismissed the appeal, adding that if they were to exercise the discretion afresh, they would have reached the same conclusion.
      They then made this caveat: 
“The forthcoming criminal trial is a high profile case attracting substantial publicity locally and abroad. It involves the resolution of legal issues of great general public importance that would impact substantially on the development of NSL jurisprudence and sedition offences. Public perception of fairness in the trial is of vital importance in the administration of justice. The court must adopt a flexible and sensible approach to arrive at a decision that would best suit the public interest in this application. It is clearly in the public interest to grant the application for admission on grounds of public perception as well as the other grounds that have been canvassed”.
     In dismissing the Secretary’s appeal, the court ordered the applicant’s legal costs to be paid by the government.

The Secretary’s application for leave to appeal to the CFA
On 15 November 2022 the Secretary for Justice lodged a Notice of Motion seeking leave to appeal to the CFA. This consisted of two dense pages of submissions, raising entirely new points for rejecting Mr Owen KC’s ad hoc admission, never mentioned before in the proceedings. Considering that the trial was due to start on 1 December, this must have been received by the Court of Appeal with a sense of shock. Because of the imminence of the trial, the Court of Appeal also dealt with the matter on paper.
     It is difficult to make sense of the new points advanced by counsel Mr Rimsky Yuen SC on the Secretary’s behalf. The Court of Appeal must have found the same difficulty. Instead of trying to summarise the points made (said to be of great and general importance) the entire text of the Notice of Motion was set out in the judgment.
     The first point was this: when, in respect of an NLS-related case, an application for ad hoc admission is made under s.27(4) of the Legal Practitioners Ordinance, the “public interest” to be considered must “arise” from the “uniqueness of NSL” which should “generally take precedence and/or override other public interest considerations”. That was because the NSL was a national law of the PRC which has a “continental legal system”.

Where this leads to is not clear
The second point was this: the ad hoc admission of overseas counsel in cases involving NSL was “incompatible with the overall objective and design of the NSL; the involvement of overseas barristers in national security cases would itself pose a national security risk”.
     In elaboration of this new point, counsel argued that overseas counsel might, in the course of conducting a case, come into possession of 'state secrets', and there was no effective means of enforcing confidentiality in regard to such secrets. This was rejected out of hand by the Court of Appeal: firstly, because factually the criminal trial involved no state secrets and secondly Mr Owen KC was bound by his own professional rules which apply wherever the courts might be and “whatever law they may be applying”.
     The truly startling thing is this: At every stage of the proceedings the Secretary was represented by senior counsel. The proposition now put forward is fundamental; there would have been no point in discussing the merits of Mr Owen KC’s ad hoc admission, however elevated, if Poon CJHC’s discretion under the Legal Practitioners Ordinance had been overridden by the NSL; Poon CJHC would, in effect, have exceeded his legal authority in admitting Mr Owen KC to the Hong Kong Bar under s. 27(4).
      But there was not a whisper of this in the lower courts. It wasn’t till the application for leave to appeal against the Court of Appeal’s judgment that the point was put forward in the Notice of Motion, when the Secretary was represented by a different counsel Mr Rimsky Yuen SC.
      What, then, were other leading counsel doing in the lower courts? Was Mr Yuen SC putting forward points of argument of his own invention, dreamt up for the first time, or was he acting under instructions from the Secretary for Justice? Had other counsel in the lower courts in fact considered those points and had them rejected as totally without merit?
       The overall purport of Mr Yuen SC’s submissions was that the judicial discretion in s.27(4), exercised by the First Instance judge in Mr Owen KC’s favour, was in some way fettered or eliminated by the provisions of the NSL; this required the judge to dismiss Mr Owen’s application.
      This was roundly rejected by the Court of Appeal. That court said that the discretion was 
“to be exercised in a judicial manner …..assisted by relevant principles and guidelines laid down in the authorities over time. If [ counsel’s ] contention is upheld, the court would no longer be required to carry out a balancing exercise of the relevant aspects of public interest in a flexible and sensible manner to arrive at a decision that best suits the public interest ….Its discretion could only be exercised in a particular way”.
       The Secretary’s application for leave to appeal was dismissed and, following the usual rule, the legal costs were awarded against the Secretary: in other words, the taxpayers had once more to foot the bill.

The Secretary’s application to the Appeal Committee of the CFA
The Secretary renewed his application for leave to appeal before the Appeal Committee of the CFA (Cheung CJ, Ribeiro PJ and Fok PJ), insisting that where an ad hoc admission involved cases under the NSL the normal criteria were no longer appropriate and a radically new approach had to be adopted. It was argued by counsel that there should in effect be a blanket ban on ad hoc admissions in NSL cases subject only to undefined “exceptional circumstances”. This would effectively mean that the court should be deprived of its statutory discretion.
     From what was a purely case management matter, it has been blown up into a cause celebre, with far-reaching consequences unforeseen.
      One of the matters put to the Appeal Committee by counsel for the Secretary was this: the admission of any overseas counsel (not simply Mr Owen KC) in NSL cases would tend to defeat the aim of countering “interference in the HKSAR’s affairs by foreign or external forces”. This is an alarmingly wide proposition with strong political flavours, destructive of the discipline of law. There was no scintilla of evidence in support of such submission.
     In refusing leave to appeal, the Appeal Committee was at pains to emphasise the importance of suppressing activity endangering national security, as required by NSL 3. But such issues must be properly raised, to enable the court to deal with them competently. Here the Secretary has, as the Committee said, “fundamentally changed his case only at the stage of seeking leave to appeal to this Court, raising undefined and unsubstantiated issues said to involve national security which were not mentioned or explored in the courts below. No appropriate basis has been made out for the grant of leave to appeal”.
     Applying the well-known Flywin principles (named after the CFA case Flywin Co Ltd v Strong & Associates Ltd where the court, in essence, determined it would not entertain points not raised in the courts below, unless there were exceptional circumstances) the Appeal Committee dismissed the Secretary’s application, with the usual order for legal costs awarded against the government.
      The Appeal Committee gave its determination with admirable promptness, on Monday, 28 November, leaving two clear days before the trial due to start on Thursday, 1 December. Mr Owen KC’s right of audience to represent Mr Lai at the trial was now firmly established and unchallengeable.

The trial postponed
The defendants have been detained in prison pending trial for a very long time. There was a strong public interest in having the trial brought on as soon as possible. That duty fell on the Secretary for Justice. Indeed, NSL 42 itself required him to ensure that cases concerning national security be handled in a “timely manner”.
      And yet, the trial has been postponed to an indefinite date next year. Why? Was this on the Secretary’s initiative? His professional duty was clear: to bring on the trial as soon as possible. So the question creeps in: was there political interference in his decision-making?
      He had “control of criminal prosecutions, free from interference”: Basic Law 63. Why did he not act as his duty clearly required, in a strong and resolute manner, and have the trial commence on Thursday, 1 December as arranged?
       This naturally has led to much speculation in the media. There are press reports suggesting that the Chief Executive has referred the matter to the Standing Committee of the National People's Congress (NPCSC) for an “interpretation” of the NSL, whatever that means.
      An article in The Australian (Australia’s leading national newspaper), 15 December 2022 edition, under the heading “Barrister row puts Lai trial on hold” reads:
“The trial of Jimmy Lai, the jailed Hong Kong publisher, on national security charges has been postponed for more than nine months while the Chinese authorities try to prevent a British barrister from defending him. Mr Lai, known for his outspokenness against Beijing … had instructed Tim Owen KC, from Matrix Chambers in London, to represent him on charges of colluding with foreign forces, causing a row over whether the barrister is eligible to do so. The Hong Kong government has appealed to Chinese officials in Beijing to decide on the matter, but without a quick answer, the territory’s High Court decided on Tuesday to adjourn the trial until September next year.... Mr Lai’s trial is seen as part of China’s attempts to stifle press freedom in Hong Kong in the wake of the 2019 pro-democracy protests in the former British colony... After Hong Kong’s highest court refused to hear a government appeal against the barrister’s case, John Lee, the territory’s chief executive, asked the standing committee of the National People’s Congress, the Chinese parliament, to give a ruling. The Hong Kong government argues the involvement of overseas lawyers in national security cases would itself pose a risk. The standing committee, which convenes this week, has not listed the item on its agenda”.

The NPCSC’s involvement?
If the facts stated in this article are accurate, it is difficult to see how the NPCSC could be involved in any way.  The sole matter before the court was Mr Owen’s ad hoc admission. The sole legal issue arising therefrom was Poon CJHC’s exercise of judicial discretion under s.27(4) of the Legal Practitioners Ordinance. He did so under clear common law principles, as Basic Law 8 so required.
      He was simply dealing with a matter of case management for the better conduct of the criminal trial. This could be of no possible concern to the NPCSC. What is more, it is now a fait accompli. Mr Owen has as full a right of audience at that trial as any other barrister. But the government seems to still insist that Mr Owen’s ad hoc admission is unlawful, seeking a radical change in the legal landscape.
       The matter having been escalated to such levels, it is difficult to see a happy outcome. If Mr Owen’s ad hoc admission to the Hong Kong Bar could become the subject of Beijing’s exercise of sovereign power, overturning Poon CJHC’s lawful discharge of judicial functions, the judiciary’s independence would have been torn to shreds, Hong Kong’s high degree of autonomy destroyed, with incalculable consequences to follow.
     Would the government thwart Mr Owen KC’s appearance in court by other means when the criminal trial at last begins perhaps next year? Say, to deny him an entry permit? That is now, alas, an open question.

Where does this lead?
In the life of nations, and of communities, a small mistake, an act of neglect, rashness, or unmindfulness could lead to disastrous consequences.

Public perception
The Court of Appeal, wisely and presciently, highlighted the importance of flexibility and common sense in the approach to this matter, saying that public perception of fairness in the trial is “of vital importance”, both locally and overseas.
     Here, the Secretary wore 'two hats'. He was both the prosecuting authority and 'the protector of public interest'. What role did he play when he first opposed Mr Owen KC’s ad hoc admission?
      Once Chief Judge Poon had ruled on the matter, why did the Secretary appeal that decision, repeating the same arguments in the Court of Appeal? When his primary responsibility was to ensure a fair trial as soon as possible, why did he persist in his attempt to exclude Mr Owen KC from acting for the defence? His then counsel Mr Benjamin Yu SC acknowledged that it was a pure matter of appeal against the exercise of judicial discretion and that the established principles applied to such an appeal. How could the Secretary have imagined that such an appeal had any chance of success?
      Was the Secretary not aware of the fact that the more he pursued that goal the stronger the perception that he was seeking an unfair advantage over the defence?
      The fact that the trial has been adjourned raises other troubling questions: what representations did the Secretary make to the trial court to cause it to postpone the trial? Why did the court order an adjournment, and a lengthy one at that, when public interest required adherence to the trial dates which had been set long in advance?

Conclusion
If the matter causing this sequence of events is 'state secrets', the source must come in the first place from the State: that is to say, the prosecuting authorities.
      It is a fact that no state secrets are involved in this case. But take the hypothetical situation where 'state secrets' become an important ingredient in the prosecution case. The government has a choice: to use it evidentially, thereby it ceases to be secret, or not to use it. In the latter case, if it contains material relevant to the defence, it must be disclosed as “unused material” under common law rules. Counsel for the prosecution would surely then seek the judge’s ruling, in camera, whether this duty of disclosure must be discharged. The responsibility then passes to the judge. The common law is well-equipped to deal with such a situation.
       This is all predicated on the basis that counsel for the prosecution can be trusted to safeguard state secrets, come what may.  Assume that a local senior counsel leads the prosecution team. Will this call for an inquiry into his background before he can be briefed? What is his record while a student? Does he have a foreign passport, dual nationality? Does he have a second home overseas? Does he have close family ties overseas?
      Mr Owen KC was not briefed for the prosecution. He was briefed for the defence: one frame removed, as it were, from the prosecution as regards state secrets. If he cannot be trusted to act professionally, what about senior counsel in Hong Kong who have foreign passports, dual nationality, second homes, close family ties overseas? Can they be trusted?
      This involves counsel, but what about judges? Can they be trusted to be true to their oaths of office if they have foreign passports, dual nationality, second homes, close family ties overseas?

Where will such mistrust ultimately lead?
Did this lead to Mr Rimsky Yuen SC putting forward the propositions that the discretionary power in s.27(4) of the Legal Practitioners Ordinance was “incompatible with the overall objective and design of the NSL” and that “the involvement of overseas barristers in national security cases would itself pose a national security risk”?
      It is like an earthquake. Once trust in the foundations of the legal system is sorely shaken, stability cannot be easily restored. The legal landscape would have changed forever. The rule of law, as it exists today, will be gone.

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