Hong Kong’s Court of Appeal has declined to give the justice minister a final chance to appeal a court decision allowing a British lawyer to represent media mogul Jimmy Lai in his high-profile national security trial due to start on December 1.
According to a written ruling released Monday, the court said Lai’s case did not involve “state secrets.” The Department of Justice (DoJ) said it fears such secrets could be leaked by the foreign attorney.
A panel of three judges added that the suggestion that the court should generally refuse to allow foreign lawyers in national security cases was “unsustainable” and “contrary to applicable law”.
The city’s justice chief last Tuesday requested a leave of absence to appeal an earlier Court of Appeals ruling that upheld King’s Counsel Tim Owen as Lai’s representative.
The 74-year-old founder of the now-defunct pro-democracy newspaper Apple Daily faces three charges under the Beijing-imposed national security law related to “collaborating with foreign forces” and one charge under the colonial-era sedition law.
Lai has been in custody since December 2020.
“state secrets”
Representing the current justice minister, senior attorney and former justice chief Rimsky Yuen told the top court that there is no meaningful or effective enforcement of foreign attorneys’ obligations to maintain confidentiality on state secrets or other confidential information once they leave Hong Kong.
In response, Circuit Court Vice Presidents Susan Kwan and Carlye Chu and Circuit Court of Appeals Judge Thomas Au said, “The issue of state secrets does not arise from the facts of this case.”
Furthermore, the Attorney General did not cite “protection of state secrets” when ordering that Lai’s case be tried without a jury, the judges noted.
The three judges also said the National Safety Act applies to out-of-town non-residents, while all practicing barristers in England and Wales are subject to a code of conduct.
“So it does not appear that enforcing a violation of the Code of Conduct for Attorneys or Hong Kong laws would be meaningless or ineffective once a foreign attorney has left the territory,” they ruled.
‘A untenable suggestion‘
Yuen also told the Supreme Court that the admission of a foreign lawyer in national security cases should generally be refused unless the applicant can show “extraordinary circumstances”.
The government prosecutor said that a common-law-trained foreign attorney would make a “necessarily limited, if not negligible” contribution to the “appropriate development” of national security law theories in Hong Kong, as the national security law was drafted under the mainland Chinese legal system.
However, the three judges ruled that Yuen’s argument “contravened applicable law.”
“If his allegation is upheld, the court would no longer be required to make an assessment of the relevant aspects of public interest in a particular situation… Its discretion could only be exercised in a particular way,” they said.
The judges said Yuen’s submission “contradicts the guiding principles for the exercise of judicial discretion.”
“It is an untenable claim and not reasonable to argue,” they added.
Since the Attorney General lost the appeal motion, he was ordered to pay Lai’s costs related to that motion as well.
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