LAI CHEE-YING v. SECRETARY FOR JUSTICE

Press Summary (English)

Press Summary (Chinese)

HCMP 253/2023 and HCAL 566/2023
(Heard Together)

[2023] HKCFI 1382

HCMP 253/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 253 OF 2023

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AND

HCAL 566/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 566 OF 2023

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____________________

(Heard Together)

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J U D G M E N T

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A.  Introduction

1.  Before the Court are two sets of proceedings brought by the applicant, Mr Lai Chee Ying (“the applicant”).

2.  In HCMP 253/2023 (“OS Proceedings”),[1] the applicant seeks (1) a declaration that the Interpretation by the Standing Committee of the National People’s Congress (“NPCSC”) of Articles 14 and 47 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region made on 30 December 2022 (“the Interpretation”[2]) does not affect judgments previously rendered by this Court on 19 October 2022,[3] the Court of Appeal on 9 November 2022[4] and the Appeal Committee of the Court of Final Appeal on 28 November 2022;[5] (2) alternatively, an order for the Court to request and obtain a certificate from the Chief Executive under NSL 47 on the following questions:

(a)  Whether Mr Timothy Wynn Owen KC, who has been approved, admitted, and enrolled as a barrister of the High Court for the purposes of advising the applicant in HCCC 51/2022, including all hearings ancillary or in relation thereto, by an order dated 19 October 2022 in HCMP 1402/2022 (as affirmed by the Court of Appeal in CACV 425/2022), serving as defence counsel or legal representative for the applicant in HCCC 51/2022 involves national security; and

(b)  Whether any other overseas lawyer who is not qualified to practise generally in Hong Kong serving as defence counsel or legal representative for the applicant in HCCC 51/2022 involves national security.

It is opposed by the Secretary for Justice as the defendant on the ground, inter alia, that it is academic.

3.  In HCAL 566/2023 (“JR Proceedings”),[6] the applicant seeks a declaration that the Judgment and Decision of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (“NSC”) dated 11 January 2023 “catering for the possibility of” Mr Owen re-applying for sideline employment that his proposed representation of the applicant in HCCC 51/2022 “concerns national security which is likely to constitute national security risks, and is contrary to the interests of national security” (“the NSC Decision”); and the Decision of the Director of Immigration (“the Director”) that in the event of a re-application by Mr Owen for sideline employment approval in relation to HCCC 51/2022, such application shall be refused (“the Director’s Decision”), are ultra vires NSL 14; and an order of certiorari to quash the Decisions. The applicant further asks for an oral hearing of the leave application under Order 53 rule 3(3) of the Rules of the High Court[7] in the event of the Court being minded to refuse leave on the papers. It is opposed by the NSC and the Director as the putative respondents and the Secretary for Justice as the putative interested party (collectively “the Putative Parties”) on the ground that pursuant to NSL 14, which provides that the work of the NSC shall not be amenable to judicial review,[8] as reiterated in paragraph 1 of the Interpretation, the NSC Decision is not subject to judicial review; or alternatively that the Decisions are not ultra vires NSL 14.

4.  Pursuant to my direction, which effectively reflected the parties’ consensus on account of the significant overlap of issues involved, the substantive hearing in the OS Proceedings and the oral hearing of the leave application in the JR Proceedings were heard together on 28 April 2023. I now hand down my judgment for both sets of Proceedings.

B.  Background

B1.  Admission Judgments

5.  In HCCC 51/2022,[9] the applicant faces four charges involving a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance;[10] and conspiracies to collude with a foreign country or external elements to endanger national security, contrary to NSL 29(4). On 19 October 2022, this Court in HCMP 1402/2022 granted the ad hoc admission of Mr Owen to represent the applicant under section 27(4) of the Legal Practitioners Ordinance.[11] The appeal by the Secretary for Justice to the Court of Appeal was dismissed on 9 November 2022 in CACV 425/2022. The Secretary’s subsequent application for leave to appeal was first refused by the Court of Appeal on 21 November 2022[12] and thereafter by the Appeal Committee on 28 November 2022. For present purposes, these judgments will be referred to as “Admission Judgments” collectively below.

B2.  The Interpretation

6.  Following the Appeal Committee’s decision, the Chief Executive, in his dual capacities as the Chief Executive and the Chairperson of the NSC announced on 28 November 2022 that he would pursuant to NSL 11 submit a report to the Central People’s Government (“CPG”) and recommend that a request be made to the NPCSC to issue an interpretation of the NSL in accordance with NSL 65, seeking to clarify:

“Based on the legislative intent and objectives of [the NSL], can an overseas solicitor or barrister who is not qualified to practise generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?”

7.  On 30 December 2022, the NPCSC issued the Interpretation:

「第十三屆全國人民代表大會常務委員會第三十八次會議審議了《國務院關於提請解釋〈中華人民共和國香港特別行政區維護國家安全法〉有關條款的議案》。國務院的議案是應香港特別行政區行政長官向中央人民政府提交的有關報告提出的。根據《中華人民共和國憲法》第六十七條第四項和《中華人民共和國香港特別行政區維護國家安全法》第六十五條的規定，全國人民代表大會常務委員會對《中華人民共和國香港特別行政區維護國家安全法》第十四條和第四十七條規定的含義和適用作如下解釋：

一、根據《中華人民共和國香港特別行政區維護國家安全法》第十四條的規定，香港特別行政區維護國家安全委員會承擔香港特別行政區維護國家安全的法定職責，有權對是否涉及國家安全問題作出判斷和決定，工作信息不予公開。香港特別行政區維護國家安全委員會作出的決定不受司法覆核，具有可執行的法律效力。香港特別行政區任何行政、立法、司法等機構和任何組織、個人均不得干涉香港特別行政區維護國家安全委員會的工作，均應當尊重並執行香港特別行政區維護國家安全委員會的決定。

二、根據《中華人民共和國香港特別行政區維護國家安全法》第四十七條的規定，香港特別行政區法院在審理危害國家安全犯罪案件中遇有涉及有關行為是否涉及國家安全或者有關證據材料是否涉及國家秘密的認定問題，應當向行政長官提出並取得行政長官就該等問題發出的證明書，上述證明書對法院有約束力。

三、香港特別行政區行政長官依據《中華人民共和國香港特別行政區維護國家安全法》第十一條的規定於11月28日向中央人民政府提交的有關報告認為，不具有香港特別行政區全面執業資格的海外律師擔任危害國家安全犯罪案件的辯護人或者訴訟代理人可能引發國家安全風險。不具有香港特別行政區全面執業資格的海外律師是否可以擔任危害國家安全犯罪案件的辯護人或者訴訟代理人的問題，屬於《中華人民共和國香港特別行政區維護國家安全法》第四十七條所規定的需要認定的問題，應當取得行政長官發出的證明書。如香港特別行政區法院沒有向行政長官提出並取得行政長官就該等問題發出的證明書，香港特別行政區維護國家安全委員會應當根據《中華人民共和國香港特別行政區維護國家安全法》第十四條的規定履行法定職責，對該等情況和問題作出相關判斷和決定。

現予公告。」

Its English translation reads:

“At its 38^th Session, the Standing Committee of the Thirteenth National People’s Congress deliberated the State Council’s Proposal Regarding the Request for an Interpretation of Relevant Articles of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. The State Council’s proposal was put forward in response to the relevant report submitted by the Chief Executive of the Hong Kong Special Administrative Region (HKSAR) to the Central People’s Government. In accordance with the provisions of Subparagraph (4) of Article 67 of the Constitution of the People’s Republic of China and Article 65 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, the Standing Committee of the National People’s Congress hereby gives the following interpretation on the meaning and application of the provisions of Article 14 and Article 47 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region:

1. In accordance with the provisions of Article 14 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, the Committee for Safeguarding National Security of the HKSAR assumes statutory duties and functions for safeguarding national security in the HKSAR and has the power to make judgements and decisions on the question whether national security is involved; and information relating to its work is not subject to disclosure. Decisions made by the Committee for Safeguarding National Security of the HKSAR are not amenable to judicial review and have enforceable legal effect. No institution, including the executive authorities, legislature and judiciary, organisation or individual in the HKSAR shall interfere with the work of the Committee for Safeguarding National Security of the HKSAR; they shall all respect and implement the decisions of the Committee for Safeguarding National Security of the HKSAR.

2. In accordance with the provisions of Article 47 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, the courts of the HKSAR shall request and obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case concerning an offence endangering national security. The certificate shall be binding on the courts.

3. The relevant report submitted by the Chief Executive of the HKSAR to the Central People’s Government on 28 November in accordance with the provisions of Article 11 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region is of the view that overseas lawyers not qualified to practise generally in the HKSAR may pose national security risks when serving as defence counsel or legal representatives in cases concerning an offence endangering national security. The question whether overseas lawyers not qualified to practise generally in the HKSAR may serve as defence counsel or legal representatives in cases concerning an offence endangering national security is a question that requires certification under Article 47 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, and a certificate from the Chief Executive shall be obtained. If the courts of the HKSAR have not requested or obtained a certificate on such question from the Chief Executive, the Committee for Safeguarding National Security of the HKSAR shall perform its statutory duties and functions in accordance with the provisions of Article 14 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region to make relevant judgements and decisions on such situation and question.

This Interpretation is hereby announced.”

B3.  Sideline employment application

8.  On 3 May 2022, Mr Owen was issued an employment visa to work as a barrister in CACC 185/2021, which was extended on 6 January 2023 and remains valid until 14 September 2023.  After the Court of Appeal dismissed the appeal by the Secretary for Justice in CACV 425/2022, Robertsons, acting for Mr Owen, on 11 November 2022 applied to the Immigration Department for approval to take up a sideline employment under his employment visa to cover the work in respect of HCCC 51/2022, the trial of which was then due to commence on 1 December 2022. The Hong Kong Bar Association issued a practising certificate to Mr Owen on 22 November 2022.

9.  While Mr Owen’s application for the sideline employment was being processed by the Immigration Department, the Chief Executive, as noted, made the announcement on 28 November 2022. A round of correspondence between the Immigration Department and Robertsons then ensued. In the meantime, upon the prosecution’s application for an adjournment because of the request by the Chief Executive to the NPCSC for an interpretation of the NSL, the trial in HCCC 51/2022 was adjourned to September 2023. By a letter of 3 January 2023, Robertsons withdrew Mr Owen’s application on a without prejudice basis. There is presently no extant application by Mr Owen for sideline employment approval in relation to HCCC 51/2022.

B4.  The NSC Decision

10.  On 11 January 2023, the NSC held a meeting to discuss the implementation of the Interpretation. On the same day, the NSC issued a press statement announcing that it held a meeting on that day to discuss the implementation of the Interpretation. The NSC further stated that it would fully fulfil the obligations as stipulated in the Interpretation and carry out its duties and functions as prescribed in NSL 14. Correspondence followed between Robertsons and the Department of Justice on various matters relating to the Interpretation. On 17 February 2023, the applicant commenced the OS Proceedings.

11.  Under NSL 14 and as reiterated in paragraph 1 of the Interpretation, information relating to the work of the NSC is not subject to disclosure. However, purely for the purpose of assisting this Court in determining these Proceedings and without in any way waiving any applicable right or privilege, authorization has been exceptionally given to the Director to relay and only to such extent the NSC’s relevant judgment and decision made at the above meeting.[13] In short, the NSC, after noting that the courts had not requested or obtained a certificate from the Chief Executive under NSL 47 in respect of the ad hoc admission of Mr Owen in HCCC 51/2022, decided that:

(1)  the proposed representation by Mr Owen of the applicant in HCCC 51/2022 concerns national security which is likely to constitute national security risks, and is contrary to the interests of national security;

(2)  the NSC advises the Director that, if a fresh sideline employment approval application in relation to the proposed representation of the applicant in HCCC 51/2022 is received from Mr Owen, such application should be refused in view of its judgment above.

B5.  The Director’s Decision

12.  In implementing the NSC Decision, the Director states:[14]

“The [NSC Decision] is final, binding, and not subject to judicial review. Should Mr OWEN reapply to ImmD for sideline employment approval in relation to HCCC 51/2022, ImmD will duly respect and implement the [NSC Decision] pursuant to [NSL 14] and paragraph 1 of the Interpretation and the applicable laws and policies.”

Effectively, the Director’s Decision means that the Director would pursuant to the NSC Decision refuse any re-application for sideline employment approval by Mr Owen to represent the applicant in HCCC 51/2022.

13.  The disclosure of the NSC Decision and the Director’s Decision for the first time in the course of the OS Proceedings prompted the applicant to commence the JR Proceedings.

C.  The JR Proceedings

14.  The differences dividing the parties narrowed considerably at the outset of the hearing when Mr Robert Pang SC, for the applicant,[15] conceded that the outcome of the OS Proceedings is dependent on that of the JR Proceedings. He agreed that should no leave to apply for judicial review be given in the latter, the former would become academic and should be dismissed accordingly, as Mr Rimsky Yuen SC, for the Secretary for Justice and the Putative Parties,[16] contended. He therefore devoted all his oral submissions to the leave application in the JR Proceedings. So did Mr Yuen.

C1.  The jurisdictional issue

15.  The first and foremost question arising from counsel’s submissions is whether the NSC Decision is amenable to judicial review. It raises the fundamental issue if the HKSAR courts have jurisdiction over the work of the NSC under NSL 14. This jurisdictional issue must be examined by reference to the specific constitutional context in which the HKSAR courts function when dealing with cases concerning national security under the NSL.

C1.1  Constitutional norm for prescription of jurisdiction

16.  The examination exercise starts with the fundamental proposition that jurisdiction of the courts in a given legal system is defined by its written constitution, constitutional documents and convention, and any relevant legislations; or where the legal system does not have a written constitution and the legislature is supreme, by the legislature.[17] Whatever the legal system may be, the courts do not enjoy unlimited jurisdiction. Their jurisdiction is necessarily restricted by what the constitution or relevant legislations have prescribed. The courts must accept such jurisdictional limits and can only act within their confines as part of the constitutional order of the legal system in which they operate. That is essential to the concept and practice of the rule of law.

17.  Here, the HKSAR courts derive their jurisdiction from the Basic Law. It is the Basic Law which defines and draws the boundary of the HKSAR courts’ jurisdiction at the constitutional level. BL 2 relevantly provides:

“The National People’s Congress (“NPC”) authorizes the [HKSAR] to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”

The NPC’s authorization of independent judicial power including that of final adjudication is repeated in BL 19(1).[18] Under BL 80, the courts of the HKSAR shall exercise the judicial power of the Region.

18.  Reading BL 2 purposively, the HKSAR courts have independent judicial power within the high degree of autonomy conferred on the Region, and to that extent only. The limits of the Region’s high degree of autonomy demarcate the parameters of the courts’ jurisdiction. As will be developed below, the limits of the Region’s high degree of autonomy is critical to the determination of the jurisdictional issue at hand.

19.  Further, under BL 2, the independent judicial power is conferred in accordance with the provisions of the Basic Law. For present purposes, the following articles of the Basic Law are relevant.

20.  BL 19(2) limits the courts’ jurisdiction generally thus:

“The courts of the [HKSAR] shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.”

It ensures that those restrictions previously in force continue to be applicable to limit the courts’ jurisdiction, thus giving effect to the main theme of continuity of the Basic Law.[19]

21.  BL 19(3) next limits the courts’ jurisdiction over acts of state in these terms:

“The courts of the [HKSAR] shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the [CPG].”[20]

22.  Further, BL 83 provides:

“The structure, powers and functions of the courts of the [HKSAR] at all levels shall be prescribed by law.” (Emphasis supplied)

BL 84 goes on to provide:

“The courts of the [HKSAR] shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in Article 18 of this Law …”

And BL 18 provides:

“The laws in force in the [HKSAR] shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.

National laws shall not be applied in the [HKSAR] except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.

The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the [HKSAR] and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.

…”

Reading BL 83, BL 84 and BL 18 as a coherent whole, “law” referred to in BL 83 is the laws as specified in BL 18, including those national laws listed in Annex III to the Basic Law, which may prescribe the powers and functions of the HKSAR courts. And the courts shall adjudicate cases in accordance with the laws as prescribed in BL 18, including a national law listed in Annex III. It follows that the jurisdiction of the HKSAR courts may be prescribed by any relevant provision of a national law listed in Annex III.

23.  As the NSL is a law listed in Annex III of the Basic Law, it may prescribe the jurisdiction of the HKSAR courts.

24.  Moreover, since the legislative acts of the NPC and the NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong, the HKSAR courts have no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and the Hong Kong Bill of Rights: HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, at [37] and [42]. In short, a provision of the NSL prescribing the courts’ jurisdiction itself is not amenable to any constitutional challenge or judicial review.

25.  To summarize at this stage, under the constitutional order of the HKSAR, the HKSAR courts’ jurisdiction is prescribed by the Basic Law and the laws of the HKSAR including where applicable, a provision of the NSL as a national law listed in Annex III of the Basic Law. This is the constitutional norm of the HKSAR on delineation of the courts’ jurisdiction over cases concerning national security under the NSL.

C1.2  Prescription of jurisdiction in the NSL

26.  The parties’ main contention concerns the exact effect of NSL 14. In essence, Mr Yuen argued that the imperative of NSL 14 is clear and unqualified: the courts simply have no jurisdiction over the work of the NSC. Mr Pang argued that NSL 14 is subject to the common law rule that a statutory provision which ousts the court’s supervisory jurisdiction over a public body does not apply if the impugned decision is made outside its powers (“the Ultra Vires Rule”). He relied on the line of authorities starting with Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, culminating recently in R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491.

27.  In my view, NSL 14 has to be understood against the matrix in which it exists: see Lai Chee Ying, at [45]. That approach to construction calls for a closer examination of other relevant articles of the NSL read as a coherent whole.

28.  NSL 2 provides:

“The provisions in [BL 1] and [BL 12] on the legal status of the [HKSAR] are the fundamental provisions in the Basic Law. No institution, organization or individual in the Region shall contravene these provisions in exercising their rights and freedoms.”

NSL 2 refers to BL 1 and BL 12 as the lynchpin for safeguarding national security in the Region. BL 1 stresses that the HKSAR is an inalienable part of the People’s Republic of China. BL 12 stipulates that the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the CPG. These articles are essential to upholding national unity and territorial integrity. In so prescribing the constitutional order of the HKSAR, they underscore the general constitutional duty of the Region to safeguard national security.

29.  NSL 3 provides:

“The [CPG] has an overarching responsibility for national security affairs relating to the [HKSAR].

It is the duty of the [HKSAR] under the Constitution to safeguard national security and the Region shall perform the duty accordingly.

The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”

30.  Under NSL 48, the CPG shall establish in the HKSAR the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region for safeguarding national security (“the Office”), and the Office shall perform its mandate for safeguarding national security and exercise relevant powers in accordance with the law. One of the mandates that the Office shall perform is “overseeing, guiding, coordinating with, and providing support to the Region in performance of its duties for safeguarding national security”: NSL 49(2).

31.  A broad framework for addressing national security affairs in the NSL can be seen from the above articles:

(1)  NSL 3(1) states that the CPG has an overarching responsibility for national security affairs relating to the HKSAR. As seen from the legislative process of the NSL, which resulted in the NPCSC’s listing of the NSL in Annex III of the Basic Law, safeguarding national security is a matter outside the limits of the HKSAR’s high degree of autonomy.[21] It is within the purview of the CPG: Lai Chee Ying, at [32]. Pursuant to NSL 3(1), CPG deals with national security affairs at the national level.

(2)  In line with the policy of “one country, two systems” and the authorization in BL 2, the NPCSC, through the enactment of NSL 3(2), expressly authorizes and requires the HKSAR to take up the constitutional duty for safeguarding national security and the Region shall perform the duty accordingly. More specifically, NSL 3(3) stresses the explicit duty of the executive authorities, legislature and judiciary of the Region to effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with the NSL and other relevant laws. As authorized and tasked by NSL 3(2) and NSL 3(3), the HKSAR deals with national security affairs at the local level.

(3)  Further, through the Office, the CPG oversees, guides, coordinates with and provides support to the Region in the performance of its duties for safeguarding national security. This reinforces the respective roles of the CPG as the authorizer and the HKSAR as the authorized for national security affairs; and ensures that the Region works in tandem with the CPG in safeguarding national security.

32.  The general duties to be performed by the Region in safeguarding national security are set out in Part 1 of Chapter II of the NSL. Such duties include the directives that the HKSAR shall complete, as early as possible, legislation under BL 23 under NSL 7; and that the law enforcement and judicial authorities of the Region to fully enforce the NSL and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security under NSL 8. NSL 11 further tasks the Chief Executive as the first person responsible for safeguarding national security in the Region being accountable to the CPG. This follows from the constitutional status of the Chief Executive as the head of the HKSAR representing the Region and being accountable to the CPG under BL 43.

33.  In Part 2 of Chapter II, specific duties for safeguarding national security are allocated to various government bodies, including the NSC, the Police Force, the Department of Justice and the Financial Secretary. In respect of the NSC, NSL 12 to NSL 15 provide:

「第十二條 香港特別行政區設立維護國家安全委員會，負責香港特別行政區維護國家安全事務，承擔維護國家安全的主要責任，並接受中央人民政府的監督和問責。

第十三條 香港特別行政區維護國家安全委員會由行政長官擔任主席，成員包括政務司長、財政司長、律政司長、保安局局長、警務處處長、本法第十六條規定的警務處維護國家安全部門的負責人、入境事務處處長、海關關長和行政長官辦公室主任。

香港特別行政區維護國家安全委員會下設秘書處，由秘書長領導。秘書長由行政長官提名，報中央人民政府任命。

第十四條 香港特別行政區維護國家安全委員會的職責為：

（一）分析研判香港特別行政區維護國家安全形勢，規劃有關工作，制定香港特別行政區維護國家安全政策；

（二）推進香港特別行政區維護國家安全的法律制度和執行機制建設；

（三）協調香港特別行政區維護國家安全的重點工作和重大行動。

香港特別行政區維護國家安全委員會的工作不受香港特別行政區任何其他機構、組織和個人的干涉，工作信息不予公開。香港特別行政區維護國家安全委員會作出的決定不受司法覆核。

第十五條 香港特別行政區維護國家安全委員會設立國家安全事務顧問，由中央人民政府指派，就香港特別行政區維護國家安全委員會履行職責相關事務提供意見。國家安全事務顧問列席香港特別行政區維護國家安全委員會會議。」

Its English translation reads:

“Article 12 The Hong Kong Special Administrative Region shall establish the Committee for Safeguarding National Security. The Committee shall be responsible for affairs relating to and assume primary responsibility for safeguarding national security in the Region. It shall be under the supervision of and accountable to the Central People’s Government.

Article 13 The Chief Executive shall be the chairperson of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region. The other members of the Committee shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the Commissioner of Customs and Excise, and the Director of the Chief Executive’s Office.

A secretariat headed by a Secretary-General shall be established under the Committee. The Secretary-General shall be appointed by the Central People’s Government upon nomination by the Chief Executive.

Article 14 The duties and functions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be:

(1) analysing and assessing developments in relation to safeguarding national security in the Hong Kong Special Administrative Region, making work plans, and formulating policies for safeguarding national security in the Region;

(2) advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security; and

(3) coordinating major work and significant operations for safeguarding national security in the Region.

No institution, organisation or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review.

Article 15 The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall have a National Security Adviser, who shall be designated by the Central People’s Government and provide advice on matters relating to the duties and functions of the Committee. The National Security Adviser shall sit in on meetings of the Committee.”

34.  As can be seen, the NSC is specifically created by NSL 12 to be responsible for affairs relating to and assume primary responsibility of safeguarding national security in the Region. To ensure that it discharges its duties and functions strictly and faithfully as the body having that primary responsibility, NSL 12 subjects it under the supervision of and accountability towards the CPG directly. In achieving the same objective, the CPG further appoints the Secretary-General to head the NSC’s secretariat under NSL 13(2) and designates an advisor to provide advice on matters relating to the duties and functions of the NSC and to sit in on its meetings under NSL 15.

35.  Reading NSL 12 and NSL 14 together as a coherent whole, by subjecting the NSC to direct supervision and control of the CPG and at the same time prohibiting any interference with NSC’s work by institutions, which plainly include the courts, and specifically excluding judicial review of NSC’s decisions, the legislative intent is clear. The duties and functions of the NSC under NSL 14 fall within the exclusive purview of the CPG having the overarching responsibility for the national security affairs relating to the HKSAR. The supervisory power over the NSC is hence reserved to the CPG exclusively. The HKSAR courts, as courts of a local administrative region, are not vested with any role or power over such matters of the CPG because they clearly fall outside the courts’ constitutional competence assigned to them under the constitutional order of the HKSAR.

36.  Moreover, it is self-evident that the duties and functions of the NSC as enumerated in NSL 14 are matters well beyond the HKSAR courts’ institutional capacity. The courts have neither training nor expertise to deal with them in the exercise of their judicial function. It is only logical for NSL 14 to exclude the work of the NSC from the courts’ supervisory jurisdiction by way of judicial review.

37.  Contrast the above with NSL 40 which authorizes the HKSAR courts to exercise jurisdiction over cases concerning offences under the NSL, except under the circumstances specified in NSL 55, they are matters that plainly fall within both the constitutional competence and institutional capacity of the courts.

38.  Finally, given the nature of the work of the NSC, NSL 14 prohibits the disclosure of information relating to the same. However, if the work of the NSC were amenable to judicial review, such information would inevitably need to be disclosed in the course of the proceedings, thereby defeating the very purpose of the confidentiality requirement.

39.  In conclusion, on a proper construction, the NSL has not vested the HKSAR courts with any jurisdiction over the work of the NSC under NSL 14 in the exercise of their judicial function. And NSL 14 enjoins in clear and unqualified terms the courts from doing so. This prescribes the jurisdictional limit on the courts’ exercise of their judicial function in national security cases under the NSL.

C1.3  Ultra Vires Rule not applicable

40.  Mr Pang’s contrary arguments can be disposed of very briefly.

41.  Mr Pang’s reliance on the Ultra Vires Rule is entirely misplaced. For as rightly submitted by Mr Yuen, that Rule presupposes that the court has the requisite supervisory jurisdiction over the public body by reason of the specific constitutional order or norm applicable to the legal system concerned but such jurisdiction is ousted by the statutory provision. However, the starting position under the NSL is altogether different. Under the constitutional norm of the HKSAR, the courts have not been vested with any jurisdiction over the work of the NSC under NSL 14 to begin with. The question of NSL 14 ousting the courts’ supervisory jurisdiction over the NSC simply does not arise. In any event, in light of NSL 62,[22] priority must be given to NSL 14 over that Rule, which means that it can have no application to the work and decisions of the NSC.

42.  Mr Pang next submitted that if the NSC is not subject to judicial review by the HKSAR courts, then there will be no effective control over its work and any person aggrieved by its decision will have no recourse or remedy. It must be rejected because it completely ignores NSL 12 which subjects the NSC to the direct supervision and control of the CPG. In the course of his oral submissions, Mr Pang gave some very extreme but unrealistic examples of how the NSC might abuse its powers if there were no judicial rein by the courts. These fanciful and indeed alarmist remarks must be dismissed as well.

43.  Mr Pang finally queried the effectiveness of the supervision and control of the CPG over the NSC. It must also be rejected as entirely baseless and wholly unwarranted.

C1.4  Conclusion

44.  Since under NSL 14, the HKSAR courts have no jurisdiction over the work of the NSC and the NSC Decision is not amenable to judicial review, the applicant’s leave application in this regard must be refused.

C2.  NSC Decision not ultra vires

45.  Strictly it is not necessary for me to deal with the applicant’s case that the NSC Decision is ultra vires NSL 14. However, since I had heard counsel’s submissions in open court and with a view to dispelling any misunderstanding about the Interpretation arising therefrom, I consider it advisable to explain in this judgment why in my view the applicant’s complaint is wholly unmeritorious.

46.  Mr Pang submitted that on a proper reading of the Interpretation, it does not depart from or add to the powers of the NSC under NSL 14 or the Chief Executive under NSL 47. More importantly, the Interpretation does not answer the question whether overseas lawyers not qualified to practise generally in the HKSAR serving as defence counsel or legal representatives in cases concerning an offence endangering national security may pose national security risks (“the Question”). It only states in paragraph 3 that it is a question that requires certification under NSL 47 and a certificate from the Chief Executive shall be obtained. Thus the Question has to be answered by way of a certificate issued by the Chief Executive under NSL 47 and not by the NSC under NSL 14. It follows that NSC has no power to determine, by way of the NSC Decision, that the proposed representation by Mr Owen of the applicant in HCCC 51/2022 concerns national security which is likely to constitute national security risks, and is contrary to the interests of national security. The NSC Decision is therefore ultra vires NSL 14. NSC 14 deals with high-level policy matters, and not specific instances such as Mr Owen’s proposed ad hoc admission in HCCC 51/2022, Mr Pang added in his oral submissions. Even if the NSC had been authorized to answer the Question, it must still follow the procedure laid down in the Interpretation which places great emphasis on first obtaining a certificate from the Chief Executive under NSL 47, Mr Pang concluded.

47.  The fundamental flaw in Mr Pang’s arguments is that his reading of the Interpretation is completely wrong.

48.  To recap, the Interpretation relevantly provides:

(1)  In paragraph 1, in accordance with the provisions of NSL 14, the NSC has the power to make judgments and decisions on the question whether national security is involved.

(2)  In paragraph 2, in accordance with the provisions of NSL 47, the HKSAR courts shall request and obtain a certificate from the Chief Executive to certify whether an act involves national security when such a question arises in the adjudication of a case concerning an offence endangering national security and the certificate shall be binding on the courts.

(3)  In paragraph 3, the Question is one that requires certification under NSL 47. If the courts have not requested or obtained a certificate on the Question from the Chief Executive, the NSC shall perform its duties and functions under NSL 14 to make relevant judgments and decisions on such a situation and the Question.

49.  The Secretary for Justice and the Putative Parties relied on two expert reports prepared by an eminent jurist on the Mainland law, Professor Han Dayuan, dated 16 and 23 March 2023 to assist the Court in properly understanding the nature and effect of the Interpretation under the Mainland law. They are, however, opposed by the applicant on the principal ground that the meaning of the NSL and the Interpretation, being laws applied to Hong Kong, is within the knowledge and expertise of the HKSAR courts such that this Court is capable of forming its own view on the meaning of the NSL and the Interpretation by applying the common law approach of interpretation, and not by reference to the Mainland law, without the help of Professor Han. The applicant has not otherwise disputed the expertise of Professor Han or the substance of his reports.

50.  For disputes concerning the Basic Law where the courts also adopt the purposive approach of interpretation under the common law, the Court of Final Appeal had observed that in interpreting the Basic Law, the NPCSC functions under a system which is different from the system in HKSAR, and that under the Mainland system, legislative interpretation by the NPCSC can clarify or supplement laws: Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, at pp.222I-223A. Consequently, expert evidence has been admitted for the courts to properly understand the Mainland system in which the NPCSC interprets a law in such disputes. The Interpretation is also an interpretation made by the NPCSC under the Mainland system. Adopting the same reasoning expounded by the Court of Final Appeal, which must be equally apposite, the expert reports on the relevant Mainland law prepared by Professor Han may be admitted to assist this Court in properly understanding the Interpretation, especially and importantly when it is the first interpretation made by the NPCSC on the NSL.

51.  I accept the undisputed evidence of Professor Han. Reading it together with the relevant local case law, I arrive at the following main propositions.

52.  First, apart from NSL 65, the NPCSC also has the authority to make the Interpretation under Article 67(4) of the PRC Constitution and Article 48 of the Legislation Law.[23]

The former provides:

「全國人民代表大會常務委員會行使下列職權：

…

（四）解釋法律； 」

It may be translated as:

“The National People's Congress Standing Committee shall exercise the following functions and powers:

…

4. interpreting laws;”

The latter provides:

「法律解釋權屬於全國人民代表大會常務委員會。

法律有以下情況之一的，由全國人民代表大會常務委員會解釋:

(一) 法律的規定需要進一步明確具體含義的；

(二) 法律制定後出現新的情況，需要明確適用法律依據的。 」

It may be translated as:

“The power of legal interpretation belongs to the Standing Committee of the National People’s Congress.

A law shall be interpreted by the Standing Committee of the National People’s Congress if:

(1) the specific meaning of a provision needs to be further defined;

or

(2) after its enactment, new developments make it necessary to define the basis on which to apply the law.”

Since the issues concerning an application by an overseas counsel to represent the applicant in HCCC 51/2022 are new circumstances that arise after the promulgation of the NSL, the NPCSC may make a legislative interpretation of the NSL under both limbs of Article 48 of the Legislation Law, that is, the Interpretation.

53.  Second, Article 53 of the Legislation Law[24] provides:

「全國人民代表大會常務委員會的法律解釋同法律具同等效力。」

It may be translated as:

“The legal interpretation adopted by the Standing Committee of the National People's Congress has the same effect as the laws enacted by it.”

Thus, as a legal interpretation by the NPCSC, the Interpretation has the same effect as the NSL as at the date when the NSL came into effect. It declares what the law has always been.

54.  In this regard, as pointed out by Mr Yuen, the Interpretation is effectively the same in terms of substance and for all practical purposes as an interpretation of the Basic Law by the NPCSC: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at p.326D-F; and Chief Executive of the HKSAR v President of the Legislative Council [2017] 1 HKLRD 460, at [53]. Pursuant to the “one country, two systems” principle, with both systems being in one country, the Interpretation made by the NPCSC in conformity with the authorization in the Constitution and the NSL under the Mainland system is binding in and part of the system in the Region: see Chong Fung Yuen, at p.223 B-D. The HKSAR courts are duty bound to follow it.

55.  Third, the Interpretation is applicable to the issues concerning the application to have an overseas counsel representing the applicant in HCCC 51/2022. The plain and natural meaning of the language used in the Interpretation, understood in the context as to how it arose, can admit no other conclusion.

56.  On a proper reading, the Interpretation proceeds according to the broad framework for addressing national security affairs under the NSL as outlined at [31] above. In interpreting NSL 47 and NSL 14, the CPG first provides guidance by laying down the general approach to handling the Question at its level; and secondly tasks the Chief Executive and the NSC with the actual disposal of the Question arising in a given case at the local level. The two operates in tandem with the common goal of safeguarding national security in situations where the Question arises.

57.  The Interpretation caters for the specific scenario where the HKSAR courts have not requested or obtained a certificate from the Chief Executive on the Question under NSL 47. In such a situation, the NSC shall make relevant judgments and decisions on the Question under NSL 14. It is beyond doubt that in the specified situation, the Question falls within the purview of the NSC under NSL 14. Mr Pang’s contrary submission is plainly wrong. Moreover, Mr Pang’s submission in substance means that even in the specified situation, a certificate still needs to be first obtained from the Chief Executive. That flies directly in the face of the Interpretation which mandates the NSC to immediately step in to deal with the situation.

58.  Applying the Interpretation to the present case where the courts in the Admission Judgments had not requested and obtained a NSL 47 certificate from the Chief Executive on the ad hoc admission of Mr Owen in HCCC 51/2022, the NSC must make judgments and decisions on the question if his proposed representation of the applicant may pose national security risks. And so it did by way of the NSC Decision. The NSC Decision lies squarely within the NSC’s power under NSL 14 as interpreted by the Interpretation.

C3.  Director’s Decision not ultra vires

59.  The applicant has not advanced any separate or independent ground to dispute the Director’s Decision, which means that it must fall together with his challenge against the NSC Decision. In any event, as required by paragraph 1 of the Interpretation, the Director must implement the NSC Decision faithfully. Making the Director’s Decision for that purpose is undoubtedly a lawful exercise of his power in discharging his duty for safeguarding national security under the NSL. In the circumstances, the leave application for judicial review against the Director’s Decision must also be refused.

C4.  Conclusion

60.  In consequence, I hold that the intended judicial review against the NSC Decision and the Director’s Decision is plainly and wholly unarguable and therefore dismiss the leave application: Peter Po Fun Chan v Winnie CW Cheung (2007) 10 HKCFAR 676, at [14]-[15].

D.  OS Proceedings

61.  Mr Yuen submitted, and I agree, that although the Interpretation has the same effect as the NSL as at 30 June 2020, it does not have the consequence of invalidating, overruling or reversing any of the Admission Judgments because paragraph 3 expressly provides for a mechanism to address the extant situation where the courts had not requested and obtained the requisite NSL 47 certificate. However, it applies to the subject matter of the Admission Judgments, namely, the proposed representation by Mr Owen of the applicant in HCCC 51/2022. So what governs the situation now is the Interpretation, the NSC Decision and the Director’s Decision. The OS Proceedings thus become academic when leave to apply for judicial review is refused in the JR Proceedings, as submitted by Mr Yuen and accepted by Mr Pang.

E.  Orders

62.  For the above reasons, I dismiss both the JR Proceedings and the OS Proceedings.

63.  I further direct the parties to file written submissions on costs (limited to five pages) within 14 days for paper disposal.