SECRETARY FOR JUSTICE v. TIMOTHY WYNN OWEN KC, BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION

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Press Summary (Chinese)

FAMV No. 591 of 2022

[2022] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 591 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 425 OF 2022)

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DETERMINATION

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THE APPEAL COMMITTEE:

A.     The decision at first instance

1.  On 19 October 2022, Poon CJHC[1] granted the application of Mr Timothy Wynn Owen KC (“Mr Owen KC”) for ad hoc admission to represent Mr Lai Chee Ying (“Mr Lai”) at a trial[2] in which Mr Lai faces four charges involving a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance[3]; and conspiracies to collude with a foreign country or external elements to endanger national security, contrary to Article 29(4) of the National Security Law[4] (“NSL”). The trial is due to commence on 1 December 2022 and is scheduled to last until 20 January 2023.

2.  The power to grant or refuse such an admission arises under section 27(4) of the Legal Practitioners Ordinance[5] which confers a broad discretion on the court.

3.  In deciding whether to admit the applicant, Poon CJHC applied the principles developed by the courts over the years,[6] as summarised in Re Perry QC.[7]  The overriding consideration is whether it is in the public interest to admit the overseas counsel in question and, as Poon CJHC held, factors relevant to that consideration 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 [a] significant dimension to the case; (4) the availability of suitable local counsel”.[8] 

4.  Applying each of those factors, taking into account the issues which the parties had indicated were likely to arise at the trial,[9] Poon CJHC exercised his discretion in favour of granting the admission.

B.     The Court of Appeal’s decision

5.  On the appeal of the Secretary for Justice (“SJ”) to the Court of Appeal,[10] leading counsel appearing for the SJ[11] recognised that it was an appeal against the Judge’s exercise of discretion and acknowledged the principles applicable on such appeals.[12]  As summarised by the Court of Appeal, those principles are that:

“The appeal court must defer to the judge’s exercise of discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently. The function of the appeal court is initially one of review. It can only interfere in three instances: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or more of these reasons that it becomes entitled to exercise an original discretion of its own.”[13]

6.  After examining each of the ways in which it was alleged that the Judge had erred in the exercise of his discretion, the Court of Appeal observed that the SJ’s challenge “essentially goes to the weighing exercise of the judge of the relevant aspects of the public interest engaged in striking a proper balance in the exercise of his discretion.”[14]  The Court was not persuaded by counsel’s arguments and dismissed the appeal, concluding: “There is no valid basis to interfere with the exercise of the judge’s discretion.  If we were to exercise the discretion afresh, we would have reached the same conclusion.”[15]

C.     The application to the Court of Appeal for leave to appeal

7.  The SJ applied to the Court of Appeal for leave to appeal to this Court, represented by Mr Rimsky Yuen SC who appeared in place of his two predecessors.  In that application, the SJ sought to advance very different arguments in the Court of Final Appeal from those made in the Courts below.

8.  In particular, as set out in the notice of motion (“NM”), the SJ contended that the established principles for dealing with ad hoc admissions were “inapposite” for applications involving NSL cases and that a radically different approach should be adopted.[16]  The principle he contended for was that in NSL cases:

(a)  ad hoc admissions of overseas counsel should generally be refused “save in exceptional circumstances”;

(b)  the burden of establishing such exceptional circumstances is on the applicant; and

(c)  unless that burden is discharged, admission should be refused.[17]

In other words, it was argued that there should be a blanket ban on ad hoc admissions of overseas counsel in NSL cases, subject only to undefined “exceptional circumstances”.  This would effectively mean that the court should be deprived of its statutory discretion.

9.  The SJ’s main arguments for adopting this fundamentally different approach were:

(a)  That the NSL is unique, being a PRC law from a continental legal system where the emphasis is on the need to protect the PRC’s sovereignty and security and HKSAR’s interests within the principle of one country two systems;[18]

(b)  That overseas counsel from England have little to offer in terms of contributing to the development of the HKSAR’s NSL jurisprudence given that their experience is essentially confined to the common law;[19]

(c)  That the NSL addresses inter alia “interference in the HKSAR’s affairs by foreign or external forces” and ad hoc admissions in NSL cases “would generally tend to defeat that aim in that, among others, there is no meaningful or effective enforcement of overseas counsel’s confidentiality obligations under NSL 63 over State secrets and other confidential information which he or she comes to know in the practice of law”;[20] and

(d)  That the duty to prevent, etc, any act or activity endangering national security “includes [preventing] any possible attempt to use the legal process to compromise the protection of national security… and that such need [is] of paramount importance in considering the public interests in an application of this nature”.[21]

10.  Those are indeed novel arguments.  The SJ accepted, however, that ad hoc admissions of overseas counsel involve an exercise of the court’s discretion.  He also accepted that “the arguments advanced in support of the intended appeal go beyond those made before the Court of Appeal”.  The SJ recognised that the Court, applying the Flywin principle,[22] might refuse to entertain an entirely new case not explored below, but argued that there was no issue as to the state of the evidence and submitted that an exception to the Flywin principle should be made because it was in the public interest to have the Court of Final Appeal deal with the points of principle sought to be raised.[23]

D.     The Court of Appeal’s decision on leave to appeal

11.  The Court of Appeal handed down its judgment refusing leave to appeal on 21 November 2022.[24] It held that in so far as the SJ sought to raise new points, the circumstances were not of such an exceptional nature as to justify departing from the Flywin principle.[25]  

12.  The Court of Appeal also held that in any event, two of the new points sought to be raised were not reasonably arguable.[26] 

13.  The first such point concerned the SJ’s suggestion that the ad hoc admission might tend to defeat the aim of preventing “interference in the HKSAR’s affairs by foreign or external forces”.[27] Mr Yuen SC pointed to Articles in the NSL[28] designed to protect State secrets and other sensitive information.  He also drew attention to the duty of confidentiality imposed by NSL 63 on defence lawyers and others who acquire knowledge of State secrets, trade secrets or personal information while handling the case and submitted that an important consideration was that such duty could not be enforced against overseas counsel after their leaving Hong Kong.  The Court of Appeal held however, that there was no indication that State secrets or such sensitive information were involved in the case, that English counsel were subject to discipline under their own code of conduct in respect of practice abroad and that no basis had been advanced for suggesting that Mr Owen KC might breach the confidentiality requirement.[29]

14.  Secondly, the Court of Appeal held that it was not reasonably arguable that the radically different approach to ad hoc admissions referred to above should be adopted, since it would fetter the discretion granted to the Court by statute and prevent it from approaching such admissions in a flexible and sensible manner.[30]

E.     The present application to the Appeal Committee

15.  On 22 November 2022, the SJ lodged a Notice of Motion (“Form B”) seeking leave to appeal from the Appeal Committee on an urgent basis against the Orders for ad hoc admission granted by the Courts below. 

16.  The questions enumerated in Form B are set out in the Annex to this Determination.  Subject to the “or otherwise” addition mentioned below, it is in the same terms as the notice of motion filed in the Court of Appeal, referred to in Section C of this Determination.   Thus, the SJ repeats his submission that the radically different approach to ad hoc admissions involving NSL cases should be adopted (Annex Q2 §2, see §8 above). He also repeats his main arguments for adopting that fundamentally different approach (Annex Q1 §1, see §9 above).

17.  The SJ additionally seeks leave to appeal on the “or otherwise” basis (Annex §3(1)-(4)) on the grounds (i) that an important question is raised on this first application for ad hoc admission in a case involving national security; (ii) that the Courts below failed to appreciate the unique features of the NSL making such admissions incompatible with the objective and design of the NSL (repeating in substance the submissions contained in Annex Q1 §1); (iii) that the applicant’s allegation that refusal of admission would undermine the perception of fairness in the criminal trial wrongly suggests that the HKSAR courts assisted by the local bar will not be able to secure a fair trial for Mr Lai; and (iv) that the overall circumstances of the case do not justify ad hoc admission.  Subject to what is said below in connection with the Flywin doctrine, the SJ’s skeleton argument essentially reiterates the points made in the application for leave made before the Court of Appeal.

18.  The skeleton submissions lodged on the applicant’s behalf, reiterated by Mr Robert Pang SC in his oral submissions, rely on the Flywin principle as a basis for dismissing the leave application and contend that various points made by the SJ are not reasonably arguable.

19.  The Bar Council’s brief submissions support the SJ’s argument that the unique status of the NSL is a cogent factor weighing against admission.  At the same time, they recognise that the proposed appeal is against an exercise of discretion which faces significant hurdles.  The Bar states that it “will leave it to the SJ to persuade the Court”.

F.     The Flywin principle

20.  It is well-established that when an application is made for leave to appeal on a new point which has not been considered in the courts below, the Flywin doctrine[31] applies as a discretionary principle.[32]  That doctrine has two aspects which bear on fairness to the other party and on the court’s ability properly to adjudicate upon the matter. 

21.  The first aspect has been referred to as the “state of the evidence” bar.  As the Court explained:

“... where a party has omitted to take a point at the trial and then seeks to raise that point on appeal, the position is as follows. He will be barred from doing so unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial.”[33]

22.  That consideration therefore arises where the new point involves factual issues which have not been explored below because, the matter not having been raised, potentially relevant evidence has not been adduced and the issue has not been addressed in argument.  To allow such a new point to be taken on appeal is obviously likely to entail unfairness to the other party. 

23.  Such issues of fairness are not confined to the absence of relevant evidence.  They also arise where failure to take the point may affect the way the case was conducted, the arguments advanced and the course taken by the proceedings in the courts below.  As was explained in Lehmanbrown Ltd v Union Trade Holdings Inc:

“... it is ... clearly and firmly established that new points which are fact sensitive or otherwise affect the course of evidence or conduct of the case at the hearing below should not be allowed. Though this principle is usually applied in situations where the new points necessitate further evidence to be adduced, it is not confined to such scenarios. Very often, the raising of new point by one party may lead to the other party raising counter arguments and the consideration of such counter arguments may involve factual assessment in a different light from that undertaken by the court below. Sometimes, it may involve a different weighing of factors in the exercise of discretion. Alternatively, the other party may embark on a different course of forensic conduct if the new point were taken earlier. The appellate court, in considering whether the new point would be entertained, is entitled to take these matters into account in order to avoid unfairness to the other party.”[34]

24.  In such cases, failure to take the point below has an impact on the fairness of the proceedings.  It also hampers the Court’s ability to adjudicate effectively on the appeal.

25.  The second aspect of the Flywin doctrine has been referred to as “the not considered on intermediate appeal” hurdle.  As explained in Flywin, it is only in the most exceptional circumstances that the Court of Final Appeal will entertain an appeal on a new issue, not fully explored and argued below, when it involves a major development of the law:

“Even where a new point is not barred [by the state of the evidence bar], there is still a hurdle facing a party who seeks to raise in the final appellate court a point which was not pursued in the intermediate appellate court. As Chief Justice Li said in Wong Tak Yue v Kung Kwok Wai & Another (No 2) (1997-98) 1 HKCFAR 55 at p.66E-G:

‘The Court of Final Appeal as a court of final appeal should be very reluctant to consider an issue which was not duly raised and considered in the Court of Appeal. The circumstances must be very exceptional.’

This is especially so when entertaining the new point and accepting it would constitute a major development of the law. In such an exercise, it is to be expected that having the intermediate appellate court’s view on the point of law involved would be of assistance to the final appellate court. Therefore where the question of a major development of the law is involved, the foundational consideration underlying the ‘not considered on intermediate appeal’ hurdle, as I propose to call it, is that when the courts develop the law, it is best that they do so with all their intellectual resources fully deployed.”[35]

26.  Applying this aspect of the doctrine, the Court of Appeal in The Law Society of Hong Kong v A Solicitor,[36] refused leave to appeal to the Court of Final Appeal, stating:

“As explained by Kwan JA in Ageas Insurance Co Ltd v Lam Hau Wah Inneo CACV 65 of 2014, 19 May 2015 at [7] to [9] (footnote omitted), there is also a practice of this court not granting leave for new points (not restricted to new points involving fact-sensitive issues) which had not been canvassed in the substantive appeal before us. ... The rationale for this practice, as explained by Bokhary PJ in Flywin Co Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356 at [39], stems from the undesirability and disadvantages of asking the Court of Final Appeal, as the highest judicial authority in this jurisdiction, to determine a point of great general or public importance without the benefit of earlier rounds of full argument and judgments of the lower courts.”

G.     The Appeal Committee’s Determination

27.  In our judgment, the SJ’s application for leave to appeal, seeking to raise radically new points which were not mentioned or explored either before Poon CJHC or the Court of Appeal, notwithstanding their obvious importance, clearly fails to surmount the well-established hurdles posed by Flywin. 

28.  The Questions set out in the Annex (including the matters raised on the “or otherwise” basis) self-evidently give rise to a host of further issues which have not been examined factually nor canvassed in argument on intermediate appeal.  For instance, the new principle advocated in Question 2 §2, prompts the questions: Why should there be effectively a blanket ban on ad hoc admissions of all overseas counsel in relation to all NSL cases without differentiation?  What kinds of matters constitute “exceptional circumstances” which would justify admissions?  How would the applicant be required to discharge the burden of establishing the exception?  At the hearing, Mr Yuen SC declined the invitation to indicate the nature of the “exceptional circumstances” contemplated.

29.  Aspects of Question 1 raise factual issues that have not been explored in argument or supported by evidence.  Thus, Question 1 §1(2) contains the suggestion that admission of any overseas counsel would tend to defeat the aim of countering “interference in the HKSAR’s affairs by foreign or external forces”.  It is a suggestion which cries out for elaboration and evidential support: How would any particular ad hoc admission result in such interference? The Question as formulated also raises concerns as to the lack of effective enforcement of overseas counsel’s confidentiality obligations under NSL 63 “over State secrets and other confidential information”.  If the case does involve State secrets and such confidential information (which has not been suggested in the present case), that would obviously be a highly important, and possibly crucial factor which the Court would be bound to take into account in the exercise of its discretion.  The involvement of any such sensitive materials ought to have been properly raised and fairly explored factually and as a matter of law in the Courts below, rather than being first raised as an unsubstantiated new point when applying for leave to appeal to the Final Court.

30.  Similarly, the suggestion in Question 1 §1(3) regarding some “possible attempt to use the legal process to compromise the protection of national security” cries out for elaboration, factual support and a fair exploration of the issue in the Courts below if it is to provide a basis for leave to appeal at the present stage.

31.  In his skeleton argument,[37] the SJ submits that the Court of Appeal has in substance dealt with the ‘new’ points in its leave judgment[38] so that, he argues, the CFA “does have the benefit of the views of the intermediate appellate court”.  With respect, that is untenable and at the hearing, Mr Yuen SC recognised that the points touched on by the Court of Appeal in its leave decision did not reflect a full exploration of the issues.  As indicated in the foregoing paragraphs, the new points generate numerous issues that have not been explored below, whether factually or as a matter of law.  The Court of Appeal made it clear that it was dismissing the leave application applying Flywin principles and that the matters raised by the SJ did not justify permission exceptionally to be granted.[39]  The Court of Appeal added that it considered two of the new points as advanced in any event not to be reasonably arguable.

32.  Accordingly, we hold that the SJ has not made out a proper case for the grant of leave to appeal in respect of the radically new points he seeks to advance and his application must be dismissed.  We note that the Court of Appeal held that certain questions raised are not reasonably arguable.  As we have declined leave to appeal on the Flywin principle, it is unnecessary for us to enter into that discussion.  We consider the concern expressed by the SJ[40] that the Court of Appeal’s judgment will become an undesirable precedent is unfounded.  That Court’s refusal of leave to appeal is entirely case-specific and does not constitute a precedent.

33.  The courts of the HKSAR are of course fully committed to safeguarding national security and to acting effectively to prevent, suppress and impose punishment for any act or activity endangering national security as required by NSL 3.[41] That duty would unfailingly be carried out whenever national security issues are properly raised and duly explored, enabling the courts to undertake a proper adjudication of those issues.  Thus, in relation to ad hoc admissions, where national security considerations properly arise, such considerations are plainly of the highest importance to be taken into account.  In the present case, however, the SJ has 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. 

34.  Accordingly, we dismiss the application and make an Order nisi that the SJ pay the applicant’s costs of this application with liberty to the SJ to lodge written submissions as to costs within 7 days from the date of this Determination and liberty to the applicant to lodge written submissions in reply, if any, within 7 days thereafter.  We make no order as to the Bar Council’s costs.

ANNEX (Form B)

The SJ’s Formulated Questions

“Question 1

1.   In cases concerning national security or the application of the [NSL] (collectively ‘cases concerning national security’), what is the proper approach in considering the question of public interests in the ad hoc admission of overseas counsel under section 27(4) of the Legal Practitioners Ordinance (Cap 159)?  In particular, whether the public interests arising from the uniqueness of NSL should generally take precedence and/or override other public interest considerations (though not necessarily conclusive):

(1)  (a)  First, national security law is inherently unique by nature.  In the present case, the uniqueness of the NSL as a piece of legislation drafted: (i) as a national law of the People’s Republic of China (“PRC”) under the legal system of the PRC which is a continental legal system, and (ii) in the specific and unique circumstances cumulating to and prevailing at the time which gave rise to the need to safeguarding national sovereignty and security of the PRC as well as the interests in the Hong Kong Special Administrative Region (“HKSAR”) against the background of the ‘one country, two systems’ principle.

(b)  Considerations involved in the ad hoc admission of overseas counsel in cases concerning the interpretation and/or application of provisions contained in the Basic Law of the HKSAR (“Basic Law”) are generally inapposite and do not support ad hoc admission of overseas counsel in cases concerning national security, since: (i) the background, nature, objectives and characteristics of the Basic Law and those of the NSL are very different notwithstanding that both ultimately seek to ensure the implementation of “one country, two systems” principle; (ii) the NSL contains inter alia substantive PRC criminal law provisions concerning national security; (iii) an additional and overriding consideration in cases concerning national security is that no institution, organisation or individual in the HKSAR shall contravene the ‘one country, two systems’ principle in exercising their rights and freedoms (NSL 2), whereas this unique consideration is absent from past cases involving ad hoc admission of overseas counsel in cases concerning the interpretation and/or application of the Basic Law outside the context of PRC’s national security; and (iv) NSL is expressly accorded precedence over local laws of the HKSAR under NSL 62.

(c)  Accordingly, that the contribution of overseas counsel (whose expertise and experience are exclusively based on common law, statutes drafted against common law background, international human rights conventions or European Union laws, as opposed to the continental legal system of the PRC) in the proper development of HKSAR’s national security-related jurisprudence is necessarily limited if not negligible or de minimis.

(2)  Second, the admission of overseas counsel in cases involving national security is incompatible with the overall objective and design of the NSL. NSL was enacted as a result of a need to address, inter alia, interference in the HKSAR’s affairs by foreign or external forces, and that admitting overseas counsel on an ad hoc basis in cases involving national security would generally tend to defeat that aim in that, among others, there is no meaningful or effective enforcement of overseas counsel’s confidentiality obligations under NSL 63 over State secrets and other confidential information which he or she comes to know in the practice of law.

(3)  Third, the fact that it is the obligation of the executive authorities, legislature and judiciary of the HKSAR, under NSL 3, to effectively prevent, suppress and impose punishment for any act or activity endangering national security, which includes any possible attempt to use the legal process to compromise the protection of national security (as exemplified in the various powers conferred under NSL, such as NSL 41 to NSL 47), and that such need should be of paramount importance in considering the public interests in an application of this nature.

(4)  Fourth, the suggestion that the public perception of fairness of criminal trial would or might be undermined simply because overseas counsel is not admitted on an ad hoc basis is inappropriate, unjustified, illogical and in any event wholly without evidential basis.

Question 2

2.   Whether, by reason of the key considerations of public interests outlined above: (1) ad hoc admission of overseas counsel in cases concerning national security should generally be refused (save in exceptional circumstances); (2) that the burden of establishing the existence of exceptional circumstances rests with the applicant; and (3) unless and until the said burden of establishing exceptional circumstances is duly discharged, such ad hoc admission application of overseas counsel should be dismissed.

3.   Insofar as may be necessary, the SJ also relies on the “or otherwise” limb in seeking leave to appeal:

(1)  Given: (a) this is the first application for ad hoc admission of overseas counsel in cases involving national security and (b) the important questions involved, guidance by CFA is plainly justified.

(2)  The courts below have failed to appreciate: (a) the uniqueness of NSL as a piece of national law, rooted in substantive PRC criminal law provisions on national security, and which have to be interpreted against the Working Principles set out in the Explanation on the “Draft Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” addressed to the 19^th Session of the 13^th Standing Committee of the National People’s Congress by the Responsible Official of the Legislative Affairs Commission under the Standing Committee of the National People’s Congress dated 18 June 2020; and (b) the inherent incompatibility of the ad hoc admission of overseas counsel in cases concerning national security with the overall objective and design of NSL.

(3)  CA also relied on the ground that: (i) the forthcoming criminal trial is a high profile case attracting substantial publicity locally and abroad; and (ii) the public perception of fairness of the criminal trial would or might be undermined if the Applicant is not admitted on an ad hoc basis (CA Judgment §51). Such a reason or ground: (a) is wrong in principle and sends a wrong signal to the general public that the HKSAR courts assisted only by the local Bar will not be able to secure a fair trial for Mr Lai, (b) damages public confidence in the administration of justice, (c) is not supported by any evidence, and (d) is in any event contrary to the public interest if stand uncorrected.

(4)  Considering the overall circumstances of this case (including the nature of the issues involved, the unique nature of the NSL and the Applicant’s lack of expertise on national security law of the PRC), the ad hoc admission of the Applicant in any event cannot be justified.”