RE AN APPLICATION BY MR TIMOTHY WYNN OWEN KC

HCMP 1402/2022

[2022] HKCFI 3233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1402 OF 2022

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J U D G M E N T

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1.  This is the application by Mr Timothy Owen KC for ad hoc admission to represent Mr Lai Chee Ying for the purpose of the trial in HCCC 51/2022, a high-profile case which has attracted substantial publicity and extensive media coverage locally and internationally. It is opposed by both the Secretary for Justice and the Hong Kong Bar Association.

A.      Background

2.  Mr Lai is a well-known businessman and the founder of Next Digital Limited, one of the major media groups in Hong Kong, and Apple Daily, a widely circulated Chinese newspaper.  Next Digital Limited is a public listed company.  The trading of its shares had been suspended since 16 June 2021.  Apple Daily ceased to operate on 24 June 2021.

3.  In HCCC 51/2022, Mr Lai, together with the other three defendants, faces four charges.[1]  The first charge concerns a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance.[2]  The second to fourth charges concern conspiracies to collude with a foreign country or external elements to endanger national security, contrary to article 29(4) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”).  In gist, the prosecution alleges that:

(1)  Mr Lai, either in his own personal capacity or through Apple Daily, has published or reproduced seditious publications and conspired or requested a foreign country or with external elements to endanger national security by imposing sanctions or blockade or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China;

(2)  Mr Lai was involved in directing and/or financing a group called “Fight for Freedom Stand with Hong Kong” in its activities of advocating and soliciting foreign countries, bodies or individuals to endanger national security.  

4.  Mr Lai is represented by a team of three counsel led by Mr Robert Pang SC.[3] In addition to the local team, he wishes to engage Mr Owen, an eminent specialist in criminal, public and human rights law who has appeared before the courts of Hong Kong in quite a few important cases.  Hence this application.

B.      Main issues arising at the trial

5.  This is the first prosecution brought under NSL 29(4) to be tried by the Court of First Instance.  According to the Junior Counsel Certificate filed on 23 September 2022 in support of the application, the case involves various novel aspects pertaining to an NSL 29(4) offence:

(1)  what is the actus reus and mens rea of such an offence?

(2)  whether Mr Lai’s acts amount to acts involving a “request” under NSL 29(4), and in particular, to what extent an article of commentary or interview with public figures which addresses matters of national security or recites certain comments from other persons constitute a “request”?

(3)  the potential over-breadth of NSL 29(4), particularly in light of the matters stated above; and

(4)  the proper approach to construing the reach of NSL 29(4) in light of the inter-relationship between NSL 62 (stating that the NSL shall prevail where provisions of local laws are inconsistent with the NSL) and (a) NSL 4 which requires that human rights (as guaranteed by the Basic Law and the International Covenant on Civil and Political Rights) including the freedom of expression, shall be protected in safeguarding national security; and (b) NSL 5 which states that the principle of the rule of law shall be adhered to in preventing, suppressing and imposing punishment for offences endangering national security.  

6.  The Junior Counsel Certificate also identifies another issue which involves the constitutionality of sections 9 and 10 of the Crimes Ordinance, namely, whether those sections are (a) in accordance with the law; and (b) a proportionate restriction to the freedom of expression guaranteed by BL 27 and article 16 of the Hong Kong Bill of Rights Ordinance (“BOR”).[4]

C.      Grounds of application and objection

7.  The application is supported by five main grounds:

(1)  the present case is of unusual difficulty and complexity in respect of the legal issues and principles involved;

(2)  it involves the resolution of legal issues of great and general importance that would impact substantially on the development of local laws;

(3)  Mr Owen would add a significant dimension and contribute significantly to the case by reason of his experience and expertise;

(4)  one local senior counsel and two junior counsel are currently instructed to act for Mr Lai.  There is accordingly no issue of the local Bar being shut out, rather there will be the benefit of cross-fertilization; and

(5)  the unavailability of local senior counsel to be present throughout the trial.

8.  Both the Secretary and the Bar accept that the issues involved at the trial are of general and public importance and that Mr Owen is of high standing.  However, they oppose the application on the grounds that:

(1)  the issues involved are not of unusual difficulty or complexity;

(2)  Mr Owen will not add a significant dimension to the trial;

(3)  local senior counsel’s unavailability during the whole trial does not justify the admission of Mr Owen; and

(4)  there is delay in making the application.

D.      Discussion

9.  The first point taken by Mr Pang is that it is unfair for the Secretary to engage Mr David Perry QC to prosecute Mr Lai for offences contrary to the Public Order Ordinance[5] in Re David Perry QC [2021] HKCFI 113, but at the same time opposes the present application for admitting Mr Owen to defend him.  With respect, Mr Pang’s submission has conflated the Secretary’s role as guardian of public interest in ad hoc admissions and his prosecutorial role in criminal trials, which are distinct.  As a matter of fact, as this Court noted, the Secretary in that application as the guardian of public interest adopted a neutral stance: see Re David Perry QC, at [1].  In any event, comparisons with other ad hoc admissions do not serve much purpose.  An application must be determined on its own merits.

10.  The general principles governing ad hoc admissions are well-established: see Re Perry QC [2016] 2 HKLRD 647.  The overriding consideration is whether it is in the public interest to admit the overseas counsel.  The relevant public interest factors which call for fuller examination below are: (1) the importance of the legal issues to Hong Kong’s jurisprudence; (2) the complexity and difficulty of the issues; (3) whether the overseas counsel would add significant dimension to the case; (4) the availability of suitable local counsel.  I will discuss them in turn.

D1.    Jurisprudential importance and unusual complexity

11.  As rightly accepted by the Secretary and the Bar, the issues that would arise at the trial as identified above are of great general public importance.  In my view, they are clearly of such significance that warrant the admission of specialist counsel of the highest calibre to argue the case before the court.

12.  Take NSL 29(4) first.

13.  For the purpose of the trial, the critical question is how to delineate the scope of an NSL 29(4) offence against the specific context of the freedom of expression.  This is, as agreed, a matter of construction.

14.  The construction exercise is to be guided by the purposive and contextual approach laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33.  Specifically, the Court of Final Appeal highlighted at [29] that the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws, provided where there are inconsistencies, the NSL shall prevail pursuant to NSL 62.  The Court of Final Appeal also emphasized at [41] and [42] that NSL 4 and NSL 5, which emphasize protection and respect for human rights and adherence to rule of law values while safeguarding national security, are centrally important to the interpretation of the NSL generally and, where necessary, a particular NSL provision.

15.  It follows that the construction exercise at the trial will most probably involve an in-depth and rigorous analysis of the intricate interplay between national security and the constitutional right to the freedom of expression, to ensure that a proportionate balance is drawn for safeguarding national security on the one hand and protecting the freedom of expression on the other.  Further, as this is the first prosecution brought under NSL 29(4) to be heard by the Court of First Instance, novel points may arise.  If they do, it may entail a thorough study and consideration of comparable international jurisprudence such as cases decided by the European Court of Human Rights. Thus viewed, this case will be of immense importance to the development of local jurisprudence on the application of the NSL and the protection of the freedom of expression.

16.  Moreover, the construction exercise is neither simple nor straightforward as the Secretary and the Bar have contended.  In terms of legal analysis, how to balance the competing public interests of safeguarding national security and protecting the freedom of expression is extremely difficult and delicate.  In terms of facts, it requires a very close scrutiny of the voluminous evidence to see if any of the NSL 29(4) charges against Mr Lai is made out.  The task is of unusual difficulty.

17.  Take the constitutionality of sections 9 and 10 of the Crimes Ordinance next.

18.  Hitherto, that constitutionality issue has yet to be determined by the Court of First Instance or above.  Although the principle of legality and the proportionality test are well established, the analysis and determination involved is by no means simple or straightforward, as the Secretary and the Bar have contended.  Further, the court will most likely need to consult the developments in other common law jurisdictions where nearly identical offence of sedition had been trimmed or even repealed in deciding if within our legal framework, the two sections are constitutional in light of the rights provisions in BL 27, BL 39 and BOR 16.  The exercise is of unusual difficulty and will certainly produce great jurisprudential value to the development of local laws on the subject.

19.  Finally, the issues arising from the construction of NSL 29(4) and the constitutionality of sections 9 and 10 of the Crimes Ordinance will most likely go further to the Court of Appeal and even the Court of Final Appeal.  This is also a powerful factor in favour of admission.

20.  In sum, it is clearly in the public interest to admit an overseas specialist as eminent as Mr Owen so that the court will have the best assistance to tackle the formidable task at hand in HCCC 51/2022.

D2.    Adding a significant dimension

21.  The objection taken by the Secretary and the Bar on this point is premised on their argument that as the case does not involve unusual difficulty, it can be handled competently by the local team of counsel led by Mr Pang without overseas counsel’s contributions.  This objection fails in light of my conclusion above.

22.  Given Mr Owen’s undisputed expertise and experience as a specialist in criminal and human rights law, he will undoubtedly add a significant dimension to the case.

D3.    Unavailability of local senior counsel and delay

23.  To give effect to NSL 42 which mandates timely disposal of proceedings, the court on 24 August 2022 directed that the trial be listed from 1 December 2022 to 20 January 2023, without deference to counsel’s diary.  Because of other professional commitments, Mr Pang will not be able to appear for the whole of the trial.

24.  The first affidavit of Mr Johnny Ho of Messrs Robertsons, acting for Mr Lai, filed on 23 September 2022 in support of the application gave an impression that it was only made as a direct response to Mr Pang’s unavailability and the difficulty in instructing another local senior counsel available throughout the trial who was able/willing to accept the brief to act for Mr Lai.  Had that been the case, the Secretary and the Bar might have a point in arguing that Mr Pang’s unavailability for the whole of the trial did not justify the admission of Mr Owen and that there was delay in making the present application.

25.  However, the position has now been clarified by the second affidavit of Mr Ho filed on 14 October 2022:

(1)  Shortly after the case was committed to the Court of First Instance for trial on 17 May 2022 and before the trial date was fixed, Mr Lai had already instructed Messrs Robertsons to begin the process of identifying overseas leading counsel to lead the local team of counsel. After some enquiries with other London silks, the decision to instruct Mr Owen was made in early August 2022.  It follows that the present application was not made in response to the partial unavailability of Mr Pang.

(2)  After the court fixed the trial dates on 24 August 2022, Messrs Robertsons immediately started to prepare for the present application and on 31 August, sought consent from the Secretary and the Bar for admission of Mr Owen.  Thus there was no delay as complained.

26.  Although the above clarifications came a bit late, they provide an answer to the complaint of delay raised by the Secretary and the Bar.

27.  For completeness, I would add that despite the objection of delay, the Secretary does not take any issue that the conduct of the prosecution would be prejudiced because of the present application.

E.      Conclusion

28.  For the above reasons, it is clearly in the public interest to admit Mr Owen to for the purpose of the trial in HCCC 51/2022.  I therefore allow the application.