Hong Kong News

Nonpartisan, Noncommercial, unconstrained.
Thursday, Feb 29, 2024

Minimalist NPC interpretation on foreign lawyers is reassuring

Minimalist NPC interpretation on foreign lawyers is reassuring

A blanket ban on foreign lawyers, as some feared, has not happened. Instead, the interpretation simply guards against interference by malignant actors, and only in cases involving national security.

When Chief Executive John Lee Ka-chiu said he would invite the National People’s Congress (NPC) Standing Committee to interpret the national security law for Hong Kong in relation to the admission of overseas lawyers in national security cases, there was a gnashing of teeth in some quarters.

This arose after the courts, without considering national security implications, allowed media magnate Jimmy Lai Chee-ying to instruct Britain-based barrister Timothy Owen KC to represent him in his forthcoming trial on charges of collusion with foreign forces and publishing seditious content.

Although nobody disputes that the national security law enables the NPC Standing Committee to interpret its provisions, there were concerns that a long-standing mechanism that enables eminent lawyers from elsewhere (invariably Britain) to conduct cases in the city on an ad hoc basis was in jeopardy.

The Legal Practitioners Ordinance enables the Court of First Instance to admit an overseas lawyer to handle a particular case if this is in the public interest, where the individual has an expertise unavailable locally or where there is no other suitable lawyer.

In national security cases, however, there can be problems if an overseas lawyer is instructed, and these cannot be disregarded. As the national security law stipulates, Hong Kong has a constitutional duty to “safeguard national security” and it must “perform the duty accordingly”.

The national security law provides for the police officers, prosecutors and judges involved in national security cases to be vetted, and they must also undertake to uphold the Basic Law and bear true allegiance to Hong Kong. These procedural safeguards, however, do not extend to private-sector lawyers, who are nonetheless entrusted with the same confidential material.

Although the national security law states that a “lawyer who serves as defence counsel or legal representative shall keep confidential state secrets”, this is hard to enforce if the lawyer lives and works elsewhere. Whereas a local lawyer who violates the national security law can be prosecuted and disciplined, a lawyer from Britain, where the national security law is often traduced, would face no consequences, and is likely to be praised.

Indeed, Britain’s Deputy Prime Minister Dominic Raab has previously claimed that the national security law conflicts with both Hong Kong’s Basic Law and China’s obligations under the Sino-British Joint Declaration, a common view in Britain’s legal circles.

Although Lai’s defence team has said there are no state secrets disclosed in the case papers, that is not the point. The police force’s national security department conducts highly sensitive operations, and evidence about this could well emerge at trial, particularly in a case involving collusion with foreign forces.

Such information, which could be of great interest to foreign intelligence agencies, clearly has to be protected, which is why the national security law provides for closed court hearings in some situations.

If a foreign intelligence agency sought access to either a lawyer’s case papers or information he gained during a national security trial in Hong Kong, he would face a conflict of interest. This is best avoided, not least because pressure may be brought to bear upon him to disclose classified information.

It has been suggested that any restrictions on a suspect’s ability to instruct an overseas lawyer violate the right to choose a lawyer guaranteed by the Basic Law, but this is misleading. The right means no more than that suspects can choose from the pool of lawyers in Hong Kong; there is no constitutional right to import a barrister.


British King’s Counsel Tim Owen in Hong Kong on November 25. He is engaged to defend media tycoon Jimmy Lai Chee-ying in his collusion trial.

On Friday, when the NPC Standing Committee issued its interpretation, many breathed a sigh of relief. Any decisions on excluding overseas lawyers in national security cases will be for Hong Kong alone to take, and cases will be decided on their merits.

The requirement that courts obtain a certificate from the chief executive when national security issues arise has been interpreted as being sufficiently comprehensive to cover the admission of overseas lawyers, and this means a certificate allowing an admission will only be issued if there are no national security concerns. If a certificate has not been obtained before an admission, as in Owen’s case (a situation unlikely to recur), the matter will be handled by the national security committee chaired by the chief executive.

Although some feared a blanket ban on foreign lawyers in national security cases, whether based locally or overseas, this has not happened. The interpretation does not affect foreign lawyers who practice in Hong Kong, and overseas lawyers can still be admitted, although a risk assessment will be necessary.

The interpretation, moreover, only covers national security cases, and does not affect overseas lawyers seeking admission to handle other types of cases.

It is highly unusual for any jurisdiction to allow lawyers from elsewhere to conduct cases in its courts, but Hong Kong takes its global status very seriously. In most places, including Australia, Canada and the United Kingdom, only locally qualified lawyers conduct trials, and there is no question of outsiders handling national security cases. Although Hong Kong is an exception, this does not mean it cannot take reasonable steps to avoid any possible dangers, and this is now being done.

The NPC Standing Committee’s interpretation, however, is minimalist, proportionate and rational, and will help to prevent interference by malignant actors in cases involving national security.
Newsletter

Related Articles

Hong Kong News
0:00
0:00
Close
It's always the people with the dirty hands pointing their fingers
Paper straws found to contain long-lasting and potentially toxic chemicals - study
FTX's Bankman-Fried headed for jail after judge revokes bail
Blackrock gets half a trillion dollar deal to rebuild Ukraine
Steve Jobs' Son Launches Venture Capital Firm With $200 Million For Cancer Treatments
Google reshuffles Assistant unit, lays off some staffers, to 'supercharge' products with A.I.
End of Viagra? FDA approved a gel against erectile dysfunction
UK sanctions Russians judges over dual British national Kara-Murza's trial
US restricts visa-free travel for Hungarian passport holders because of security concerns
America's First New Nuclear Reactor in Nearly Seven Years Begins Operations
Southeast Asia moves closer to economic unity with new regional payments system
Political leader from South Africa, Julius Malema, led violent racist chants at a massive rally on Saturday
Today Hunter Biden’s best friend and business associate, Devon Archer, testified that Joe Biden met in Georgetown with Russian Moscow Mayor's Wife Yelena Baturina who later paid Hunter Biden $3.5 million in so called “consulting fees”
'I am not your servant': IndiGo crew member, passenger get into row over airline meal
Singapore Carries Out First Execution of a Woman in Two Decades Amid Capital Punishment Debate
Spanish Citizenship Granted to Iranian chess player who removed hijab
US Senate Republican Mitch McConnell freezes up, leaves press conference
Speaker McCarthy says the United States House of Representatives is getting ready to impeach Joe Biden.
San Francisco car crash
This camera man is a genius
3D ad in front of Burj Khalifa
Next level gaming
BMW driver…
Google testing journalism AI. We are doing it already 2 years, and without Google biased propoganda and manipulated censorship
Unlike illegal imigrants coming by boats - US Citizens Will Need Visa To Travel To Europe in 2024
Musk announces Twitter name and logo change to X.com
The politician and the journalist lost control and started fighting on live broadcast.
The future of sports
Unveiling the Black Hole: The Mysterious Fate of EU's Aid to Ukraine
Farewell to a Music Titan: Tony Bennett, Renowned Jazz and Pop Vocalist, Passes Away at 96
Alarming Behavior Among Florida's Sharks Raises Concerns Over Possible Cocaine Exposure
Transgender Exclusion in Miss Italy Stirs Controversy Amidst Changing Global Beauty Pageant Landscape
Joe Biden admitted, in his own words, that he delivered what he promised in exchange for the $10 million bribe he received from the Ukraine Oil Company.
TikTok Takes On Spotify And Apple, Launches Own Music Service
Global Trend: Using Anti-Fake News Laws as Censorship Tools - A Deep Dive into Tunisia's Scenario
Arresting Putin During South African Visit Would Equate to War Declaration, Asserts President Ramaphosa
Hacktivist Collective Anonymous Launches 'Project Disclosure' to Unearth Information on UFOs and ETIs
Typo sends millions of US military emails to Russian ally Mali
Server Arrested For Theft After Refusing To Pay A Table's $100 Restaurant Bill When They Dined & Dashed
The Changing Face of Europe: How Mass Migration is Reshaping the Political Landscape
China Urges EU to Clarify Strategic Partnership Amid Trade Tensions
The Last Pour: Anchor Brewing, America's Pioneer Craft Brewer, Closes After 127 Years
Democracy not: EU's Digital Commissioner Considers Shutting Down Social Media Platforms Amid Social Unrest
Sarah Silverman and Renowned Authors Lodge Copyright Infringement Case Against OpenAI and Meta
Why Do Tech Executives Support Kennedy Jr.?
The New York Times Announces Closure of its Sports Section in Favor of The Athletic
BBC Anchor Huw Edwards Hospitalized Amid Child Sex Abuse Allegations, Family Confirms
Florida Attorney General requests Meta CEO's testimony on company's platforms' alleged facilitation of illicit activities
The Distorted Mirror of actual approval ratings: Examining the True Threat to Democracy Beyond the Persona of Putin
40,000 child slaves in Congo are forced to work in cobalt mines so we can drive electric cars.
×