HKSAR v. LAI CHEE YING

Press Summary (English)

Press Summary (Chinese)

HCCC 51/2022

[2023] HKCFI 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 51 OF 2022

____________________

____________________

____________

R U L I N G

____________

The Court:

Introduction

1.  This is D1’s application for a permanent stay of proceedings on the basis that allowing the prosecution to continue would constitute an abuse of process. The application is not supported by the other defendants[1]in this trial.

2.  Briefly stated, on 17 May 2022 D1 was committed for trial on a total of 4 counts:

(1)  Conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications[2];

(2)  Conspiracy to commit collusion with a foreign country or with external elements to endanger national security[3];

(3)  Conspiracy to commit collusion with a foreign country or with external elements to endanger national security[4]; and

(4)  Collusion with a foreign country or with external elements to endanger national security[5].

3.  For the purpose of the present application, it would not be necessary to look at the particulars of the above charges. It suffices to say that the allegations against D1 are, as his counsel puts it, “of the utmost seriousness”, in that he is alleged to have conspired with others to use a widely circulated newspaper under his control to publish various seditious materials and committed acts which posed a threat to the security of the Hong Kong Special Administrative Region as well as the People’s Republic of China. The prosecution evidence against D1, as we understand from the written opening filed by the prosecution, will consist mainly of the testimony of a number of named co-conspirators who have already pleaded guilty, together with publications from open sources and WhatsApp messages.

4.  After committal and filing of the indictment, on 30 July 2022 the Secretary of Justice (“SJ”) issued a certificate pursuant to NSL 46 directing that the case shall be tried without a jury. In that document, the SJ said that he had taken into account the following:

(1)  Involvement of foreign factors in the case;

(2)  Protection of personal safety of jurors and their family members; and/or

(3)  If the trial is to be conducted with a jury, there is a real risk that the due administration of justice might be impaired.

As a result, the trial has to be dealt with by a panel of three judges designated under NSL 44.

5.  Although the parties had already attended two case management hearings before us on 22 August 2022 and 30 September 2022 and had been informed of the trial dates for almost 3 months, it was only at the Pre-Trial Review on 14 November 2022 (about two weeks before trial), that D1 first intimated his intention to make the present application. The grounds of the application given in the Notice[6] are as follows:

“1. Having regard to the following matters, a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a judge or a panel of judges designated under NSL 44 were biased against [D1].

1.1 the degree of executive discretion and control over the appointment and re­appointment of designated judges;

1.2 the absence of proper institutional safeguards to support the independence of designated judges; and

1.3 previous comments made by the Chief Executive - who is personally responsible for the designation of judges under NSL 44 - about [D1].

Taken cumulatively, those matters support the conclusion that [D1] would be deprived of a fair hearing. Therefore, a continuation of the prosecution would amount to an abuse of process.

2. In view of the fact that the criminal proceedings against [D1] would necessarily constitute a violation of his constitutional right to a hearing before an independent and impartial tribunal, it would be an affront to the Court's sense of justice and propriety that the prosecution against [D1] is tainted as an abuse of process.”

(collectively “Ground 1”)

6.  By way of a Re-amended Notice[7], D1 adds the following ground in support of his stay application (with original footnotes):

“3. This Court should also stay these criminal proceedings in order to protect the public confidence in the due administration of justice and to preserve an effective and independent judiciary whose orders are respected and obeyed[8].

4. Having regard to the following matters, a fair-minded and informed observer would conclude that the “important constitutional principle of separation of functions”[9] had collapsed and that the ensuing trial was an abuse of the Court’s process:

4.1 The Chief Executive, within hours after the Appeal Committee of the Court of Final Appeal confirmed[10] the Chief Judge of the High Court’s judgment[11] to admit Mr Timothy Wynn Owen KC (the 1^st accused’s counsel of choice) as leading counsel to defend him, announced that he would submit a report to the CPG recommending that a request be made to the NPCSC to issue a general[12] interpretation of the NSL to clarify the following question with a specific reference to the case of ad hoc admission of Mr Owen KC:

‘Based on the legislative intent and objectives of the National Security law, 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?’

4.2 Concurrently, the Director of Immigration [“the Director”] has refused to extend Mr Owen’s valid work visa to this case, in disregard of the Order of the CJHC admitting Mr Owen KC as a barrister for these proceedings and in spite of a valid practising certificate issued by the Bar Association.

4.3 The 1^st accused is effectively deprived of the legal representation by counsel of his choice, who has been duly admitted pursuant to an order of this Court as affirmed by the appellate courts.

4.4 At the same time, public statements have been published by entities perceived to represent the views of the CPG, in particular the Hong Kong and Macao Affairs Office of the State Council, in which the 1^st accused is portrayed as conclusively guilty of the offences he faces. These entities are also cited as supporting the Chief Executive’s decision referred to in §0 above.

4.5 On 30 December 2022, the NPCSC issued an Interpretation which sets out, inter alia, the requirement that Hong Kong courts ought to obtain a certificate from the Chief Executive under NSL 47 regarding ad hoc admission of overseas lawyers, failing which a decision be made by the Committee for Safeguarding National Security (“NSC”). The Interpretation was not gazetted until 27 January 2023.

4.6 On 3 January 2023, Robertsons, acting for Mr Owen KC, wrote to the Director withdrawing the application for sideline employment in HCCC 51/2022 “pending an application to the Court of First Instance for it to obtain a certificate from the Chief Executive under Article 47 of the National Security Law.”

4.7 On 16 January 2023, the 1^st Accused’s solicitors wrote to the Secretary for Justice seeking a confirmation about the effect of the Interpretation being non-retrospective, especially in light of comments by the Chief Executive that the Interpretation is not aimed at a particular case. The Secretary for Justice’s reply on 20 January 2023 not only refused to state any view, but deliberately failed to disclose the relevant and material information referred to in §4.9 below.

4.8 In light of the terms of the Interpretation, the 1^st Accused commenced separate proceedings in HCMP 253/2023 on 17 February 2023 to seek, inter alia, a declaration that the Interpretation does not affect judgments previously rendered to admit Mr Owen KC; alternatively, an order for the Court to obtain a certificate from the Chief Executive on specified questions pursuant to the Interpretation and NSL Article 47.

4.9 The Director’s affirmation dated 20 March 2023 filed in HCMP 253/2033 revealed, for the first time, that the NSC had already convened a meeting on 11 January 2023 (prior to the Secretary for Justice’s reply of 20 January 2023) and decided that, inter alia, the proposed representation by Mr Owen KC in HCCC 51/2022 is likely to constitute national security risks and is contrary to the interest of national security. Further, that the NSC had advised the Director to refuse any fresh sideline employment approval application by Mr Owen KC to represent the 1^st accused in these proceedings, to which the Director confirms will be duly implemented (“the Decision”). But for the initiation of proceedings for declaratory relief in HCMP 253/2023, even this Court, let alone the 1^st Accused and his legal team, would not have known that Mr Owen KC would be prevented from representing the 1^st Accused until much closer to the date of the trial.

4.10 Although the parties who attended the meeting remain unknown to the 1^st Accused, NSL Article 13 provides that the NSC is chaired by the Chief Executive and further consists of, inter alia, the Secretary for Justice and the Director. It is reasonably expected that they all had knowledge of and/ or endorsed the Decision.

4.11 The dual capacities in which the Secretary for Justice, the Director and the Chief Executive acted in the decision-making of a blanket refusal to Mr Owen’s visa application in spite of the Court’s rulings that the admission of Mr. Owen KC to represent Mr. Lai at the trial was in the public interest, epitomises the collapse of the constitutional principle of the separation of functions. It also constitutes an actual deprivation of the 1^st Accused’s legal representation by counsel of his choice notwithstanding an order of this Court.

4.12 Further, the procedural order as set out in the Interpretation recognises by necessary implication this Court’s primary gatekeeping role. The NSC’s Decision made with undie (sic) haste before giving this Court a reasonable period of time and opportunity to request a certificate from the Chief Executive constitutes a circumvention of this Court’s gatekeeping function, contrary to the spirit and intention of the Interpretation.

Taken cumulatively with the matters set out in Ground 1, a fair-minded and informed observer would conclude that the ensuing trial will not be free from political interference and amounts to an abuse.

5. In the circumstances, the Court must protect its ability to function as a Court of Law and protect against the loss of confidence in the due administration of justice. The Court should permanently stay these proceedings against the 1^st accused to prevent further compromise to the integrity of the criminal justice process.”

(collectively “Ground 2”)

D1’s submission

Ground 1

7.  It is submitted that whilst measures might have been taken (legislatively or administratively) to ensure that the process of executive designation of Judges mandated by NSL 44 was/is compatible with the requirements of a fair trial before an independent and impartial tribunal, the confluence of all the factors listed below operating together means that in the circumstances of the present case, the prosecution of D1 is an abuse of process as per the following “Strands”.

Strand 1

8.  Leading counsel for D1 emphasises that decisions as to the designation of judges, pursuant to NSL 44, appear to be taken by the Chief Executive (“CE”) personally. This is to contrast with ratification of the recommendations made by some independent body. While the CE may consult the Chief Justice (“CJ”) of the Court of Final Appeal (“CFA”) prior to making a designation, that process of consultation is discretionary.

Strand 2

9.  It is complained that the designation of judges is done without any published criteria for their selection, as required by ICCPR 14(1) and ECHR 6(1). This leaves the CE with a near unfettered discretion to appoint, re-appoint or remove designated judges, save for the expansive proviso that prospective or current judges must not make “any statement or [behave] in any manner endangering national security”.

Strand 3

10.  It is submitted that the CE is given free reign as regards the number of designated judges he appoints. On that basis, it is submitted that whilst the allocation of judicial resources by the judiciary is in general terms a factor supporting independence, that factor is significantly undermined where the CE can rule individual judges “in” or “out” of the pool from which such appointments can be made. Reference is made to Beijing Statement of Principles on the Independence of the Judiciary in the Lawasia Region[13]; Gudmundur Andri Astradsson v Iceland[14]; R (Brooke & Anor) v Parole Board & Anor[15]; and Starrs v Ruxton[16].

Strand 4

11.  It is submitted that there is no public accountability regarding the designation process under NSL 44.

Strand 5

12.  It is submitted that designated judges lack security of tenure in two key respects: (i) they are appointed for a one-year term, renewable at the behest of the CE and (ii) their designation may be terminated if the CE considers they have made statements or behaved in a manner likely to endanger national security during their tenure.

Strand 6

13.  It is submitted that the institutional position of designated judges is heightened by the further extent of executive intrusion into judicial decision making in NSL cases. This is because a designated judge presiding over a case concerning a national security offence is likely to be required to have recourse to NSL 47, which compels judges to seek and accept a determination by the CE as to whether an act involves national security or evidence involves state secrets, if such an issue arises in the course of adjudication. It is argued that this directly extends the reach of the CE into the adjudicative process.

Strand 7

14.  It is submitted that there are reasons specific to D1’s case which mean a reasonable and fair-minded observer would not consider a hearing before a bench of designated judges to be fair in his case. Reference is made to certain statements by the current CE, Mr John Lee, which are said to be trenchantly critical of D1, and which carry the obvious implication that D1 is guilty of the charges he faces and is a threat to national security. It is submitted that by reason of the system for the designation of judges by the CE, established by NSL 44, any court constituted to hear D1’s case would be deprived of the essential safeguards necessary to be perceived as institutionally independent of the executive.

15.  It is submitted that, taken the aforesaid seven “strands” cumulatively, it is overwhelmingly clear that applicable fair trial standards would be breached if D1’s trial proceeds:

●  First, the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that any judge designated under NSL 44 was biased against D1. Pursuant to NSL 44, only a designated judge may preside over the criminal proceedings against D1. In those circumstances, D1 cannot receive a fair trial.

●  Second, in view of the fact that the criminal proceedings against D1 would necessarily constitute a violation of his right to a hearing before an independent and impartial tribunal, it is an affront to the Court’s sense of justice to be asked to try D1.

Ground 2

16.  Leading Counsel for D1 submits that Ground 2 goes to the heart of the integrity of the criminal justice system and the rule of law itself. It concerns the very public breaking down of political neutrality in the prosecution of D1 and the collapse of the constitutionally protected “separation of functions”: Chu Kong v Sun Min[17]; and Lau Cheong v HKSAR[18]. It is complained that the executive authorities have time and again circumvented rule of law protections in their single-minded pursuit of a prosecution against D1 in which the rules have been bent against him.

17.  It is contended that there is no rule, nor law, nor judicial reference, nor political direction, which required the CE to seek an Interpretation of the NSL on the very day that leave to appeal Mr Owen’s admission was refused by the Appeal Committee. Moreover, the latest decision by the Committee for Safeguarding National Security of the HKSAR (“NSC”) to refuse a visa to Mr Owen, even before he has applied, directly contradicts the judicial gatekeeping protective mechanism mandated by the Interpretation on whether a certificate should be obtained. It is submitted that the trial of D1 without the public interest of Mr Owen’s involvement directly undermines the ruling of the courts concerned exercising superior jurisdiction.

18.  Furthermore, it is submitted that the events over the last few months (which we will deal with in due course) have given rise to a public perception that there is a deliberate concerted effort (on the part of CE, the SJ, other persons purporting to represent the views of the State, and the Director) to obstruct D1 from having the availability of his counsel of choice, even when it has been endorsed by the courts.

19.  It is submitted in conclusion that if indeed this trial is unable to proceed with Mr Owen’s assistance, any proceeding in his absence (whenever that may be) will always be a reminder of this saga causing his absence. The actions of the executive authorities, including notably the Director, so the argument goes, have left the Court with no choice but to order a permanent stay of proceedings.

20.  Upon enquiry by the Court, leading counsel confirms that Ground 2 necessarily entails an allegation of bad faith against the Executive.

Principles on stay of proceedings

21.  That the court has an inherent jurisdiction to prevent its own process being abused is not in doubt: HKSAR v Lee Ming Tee[19]. However, the Court of Final Appeal held in that case that the circumstances in which in the exercise of a court’s discretion, a stay of proceedings would be justified are exceptional. This is because, in general, if a prosecution was brought, it was the court’s duty to try the case. Generally speaking, a prosecutor has as much right as an accused to demand a verdict on an outstanding indictment, and where either demands a verdict, a judge has no jurisdiction to stand in the way of it. The court would grant a stay of criminal proceedings in either of the two following circumstances:

(1)  notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and continuing the prosecution would amount to an abuse of process; and

(2)  in very rare cases, a stay might be granted, although the fairness of the trial is not in question, because the circumstances involved an abuse of process which so offend the court’s sense of justice and propriety that the entire prosecution is tainted as an abuse of process. In such instances, the court is not exercising the jurisdiction to stay as a means of disciplining the public officials involved.

22.  In Warren v Attorney General for Jersey[20], the Privy Council explained the difference between the two aforesaid categories as follows. In the first category, no question of balancing interests arose, whereas in the second category fairness to the accused was not the proper focus of the court’s attention; that, in determining whether to stay criminal proceedings in the second category on the ground of executive misconduct, the court would take into account the particular circumstances of the individual case and, exercising a broad discretion, would strike a balance between the public interest in ensuring that those accused of serious crimes were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. That said, in Hamilton & Ors v Post Office Limited[21], it was held that depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus category 2).

23.  As regards cases which fall in category 1, in the recent case of HKSAR v Milne John [22], the Court of Final Appeal reiterated the highly exceptional nature of a permanent stay of criminal proceedings, saying that “it is only in very unusual circumstances that a court will conclude that a fair trial is impossible and thus, as a last resort, abort the trial.”

24.  As regards category 2, in HKSAR v Ng Chun To Raymond[23], Stock VP (as he then was) giving the judgment of the Court of Appeal, stressed that those cases would be rare since the public interest lay in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reason must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument had any prospect of success must necessarily be very rare. Citing R v Horseferry Road Magistrates Court, ex p Bennett[24] , his lordship emphasized that the test for the “affront” limb does not hinge on the perception of the public[25]:

“The key question in the second category of case is, therefore, not whether, without more, the court is offended or even outraged by the prosecutorial misconduct disclosed; and it is not whether the public, possessed of the facts, would be offended or outraged by the misconduct. It is, rather, whether ‘the court’s sense of justice and propriety’ or, one should add, public confidence in the proper administration of justice, is or would be offended ‘if [the court] is asked to try the accused in the particular circumstances of the case.’ ”

25.  As aforesaid, the Court in determining a stay application of a case said to fall within category (2) is required to conduct a balancing exercise: see also R v Latif [26]. In Warren v A-G for Jersey, the Privy Council summarized some of the factors that are frequently taken into account by the courts as follows:

“… Implicitly at least, this determination involves performing a “balancing” test that takes into account such factors as the seriousness of any violation of the Applicant’s (or even a third party’s) rights; whether the police have acted in bad faith or maliciously, or with an improper motive; whether the misconduct was committed in circumstances of urgency, emergency or necessity; the availability or otherwise of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the Applicant is charged.”

Thus, the motive or intent of the authorities concerned must be a relevant and important consideration for the court: HKSAR v Ko Kit & Anor[27]. In HKSAR v Lee Ming Tee and Securities and Futures Commission (Third Party)[28], Sir Anthony Mason NPJ had the following to add:

“In the absence of a finding of “bad faith”, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible. Even if there be a finding of “bad faith”, that finding would not necessarily conclude the matter.”

See also Secretary of State for the Home Department v CC [29].

26.  Turning to the burden of proof, it is well-established that it is for the accused to establish the facts which provide the basis for ordering a stay of proceedings: Tan Soon-gin v Judge Cameron & Anor[30]. The standard of proof is on the balance of probabilities: R v Derby Crown Court, ex parte Brooks[31]. However, the nature and quality of evidence which would satisfy a court may depend in part on the facts that are alleged in the support of the application and that when assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on a balance of probabilities: Re H (Minors) (Sexual Abuse: Standard of Proof)[32], applied in HKSAR v Lee Ming-tee & Securities and Futures Commission (Third Party),ante; see also Criminal Procedure – Trial on Indictment by Bruce, at VI [753].

Judicial independence and Right to a fair trial

27.  Judicial independence in Hong Kong is constitutionally guaranteed by the Basic Law (“BL”). BL 2[33], 19[34] and 85[35] specifically provide that the judicial power, including that of final adjudication, enjoyed by the Hong Kong Special Administrative Region under the BL is exercised by the Judiciary independently, free from any interference.

28.  The guarantee of the right to fairness is to be found in Article 10 of the Hong Kong Bill of Rights[36] (BOR 10), the whole of which is entrenched by BL 39[37]: Swire Properties Ltd & Others v Secretary for Justice[38]. In the determination of any criminal charge against a person, or his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a “competent”, “independent” and “impartial” tribunal established by law. These are qualities which the process of courts and tribunals must have in order for justice to be done. It is in the very nature of justice as administered in courts and tribunals that justice must be not only existent but also, as far as circumstances permit, visible to reasonable and informed observers. Otherwise the administration of justice would not enjoy the public confidence that it needs in order to be fully effective: Medical Council of Hong Kong v Helen Chan[39].

29.  “Competence” of the courts lies essentially in the tribunal’s own qualities. A competent tribunal lies essentially in the tribunal’s own qualities: Medical Council of Hong Kong v Helen Chan, ante[40].

30.  “Independence” refers to independence of the courts from the parties to the proceedings, the executive and legislative branches: Piersack v Belgium[41]. In this respect, it is often instructive to consider whether the tribunal concerned has security of tenure, financial security and institutional independence: Valente v R[42]; Langborger v Sweden[43]; and Bryan v United Kingdom[44].

31.  “Impartiality” denotes a court that is free from bias, which may be “actual” or “apparent”. Whereas actual bias requires direct evidence, apparent bias is based on the existence of a reasonable apprehension that the court or tribunal was biased. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the court was biased: Deacons v White Case Limited Liability Partnership & Others[45], quoting Locabail (UK) Ltd v Bayfield Properties Ltd[46].

Relevant articles in NSL

32.  Before dealing with D1’s submissions, it would be convenient to set out the relevant articles in the NSL:

“NSL 3[47] The Central People’s Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.

It is the duty of the Hong Kong Special Administrative Region 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.

NSL 14[48] 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.

NSL 44[49] The Chief Executive shall designate a number of judges from the magistrates, the judges of the District Court, the judges of the Court of First Instance and the Court of Appeal of the High Court, and the judges of the Court of Final Appeal, and may also designate a number of judges from deputy judges or recorders, to handle cases concerning offence endangering national security. Before making such designation, the Chief Executive may consult the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Chief Justice of the Court of Final Appeal. The term of office of the aforementioned designated judges shall be one year.

A person shall not be designated as a judge to adjudicate a case concerning offence endangering national security if he or she has made any statement or behaved in any manner endangering national security. A designated judge shall be removed from the designation list if he or she makes any statement or behaves in any manner endangering national security during the term of office.

The proceedings in relation to the prosecution for offences endangering national security in the magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall be handled by the designated judges in the respective courts.

Article 45[50] Unless otherwise provided by this Law, magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the Hong Kong Special Administrative Region.

NSL 46(1)[51] In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members. Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.

Article 47[52] The courts of the Hong Kong Special Administrative Region shall obtain a certificate from the Chief Executive to certify whether an act involving national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case. The certificate shall be binding on the courts.

Article 62[53] This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.”

Interpretation of NSL

33.  The approach of the courts in Hong Kong to the interpretation of the NSL has been authoritatively laid down in HKSAR v Lai Chee Ying[54]. In that seminal judgment, the Court of Final Appeal begins by a comprehensive review of the legislative history of the NSL. It is noted first that since the PRC’s resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, the HKSAR has been constitutionally obliged to enact a National Security Law. Article 23 of the Basic Law (“BL 23”) provides:

“The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.”

34.  It is then observed that it was the failure of the HKSAR to enact BL 23 legislation that gave rise to the proposal that steps be taken at the national level to “establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security, and to change its long-term ‘defenceless’ condition in the field of national security”. Five basic principles underlying the proposals can be summarized as follows:

(1)  “resolutely safeguarding national security”;

(2)  “upholding and enhancing the ‘One Country, Two Systems regime’”;

(3)  adhering to “administering Hong Kong in accordance with the law” and resolutely upholding “the constitutional order in the HKSAR as established by the Constitution and the Hong Kong Basic Law”;

(4)  resolutely opposing external interference; and

(5)  “fully safeguarding the legitimate rights and interests of Hong Kong residents”.

35.  The aforesaid five basic principles were reiterated in the Draft NSL and an Explanation of that Draft which was presented to the NPCSC on 18 June 2020. Certain “working principles” adopted in the Draft were identified. These focused on improving the HKSAR’s system, addressing institutional deficiencies and “shortcomings”, assigning responsibilities and coordinating institutional arrangements in relation to safeguarding national security. Notably, the fifth working principle was stated to be:

“... accommodating the differences between Mainland China and the HKSAR, and striving to address the convergence, compatibility and complementarity between this Law, and the relevant national laws and local laws of the HKSAR.” (Emphasis supplied)

As will be seen shortly, the Court of Final Appeal considered that the words underlined above as the key to the interpretation of the NSL.

36.  On 30 June 2020, the NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be applied locally by way of promulgation by the HKSAR pursuant to Article 18 of the Basic Law (“BL 18”). It was accordingly promulgated by the Chief Executive of the HKSAR who gave notice that the NSL as scheduled to the Promulgation applies as from 11 p.m. on 30 June 2020[55]. We pause here to note that the fact that the NSL is applied locally by way of promulgation means that its articles cannot be altered by local legislation.

37.  Returning to the judgement of the Court of Final Appeal, it is noted that:

“21. On 6 July 2020, the NPCSC was addressed regarding completion of the NSL’s adoption. The Address stated:

‘... In upholding the policy of “One Country, Two Systems”, the Law has full regard to the differences between the Two Systems as well as the actual circumstances in Hong Kong. It converges with the national law on safeguarding national security and is compatible with Hong Kong’s existing legal system. …’

22. It expressed confidence that upon its implementation, the NSL would “play a significant role” in achieving the five basic principles mentioned above and notably added:

‘... The Law expressly stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the HKSAR enjoy shall be protected in accordance with the law. The Law also fully reflects the internationally-practised rule‑of-law principles such as conviction and punishment of crimes as prescribed by law, presumption of innocence, protection against double jeopardy, protection of parties’ rights in litigation and to fair trial.’

…

29. While it is evident 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, NSL 62 provides for possible inconsistencies, giving priority to NSL provisions in such cases …” (Emphasis supplied)

38.  Poon CJHC, giving the judgment of the Court of Appeal in Lai Chee-ying v Commissioner of Police[56], succinctly summarized the approach to the interpretation of NSL as propounded by the Court of Final Appeal as follows:

“13. As is now well-known, the Court of Final Appeal in Lai Chee Ying distilled from the legislative history of the NSL and NSL 1, 3, 4 and 5 the obvious legislative intention for the NSL to operate in tandem with the laws of the HKSAR, seeking convergence, compatibility and complementarity with local laws, subject to NSL 62 which gives priority to NSL in case of inconsistency: [29]. Based on that legislative intention, the Court laid down a purposive and contextual construction to an NSL provision in its application to the HKSAR by examining the matrix in which it exists, consisting of the relevant provisions of the Basic Law and the NSL, the applicable corpus of local laws including human rights and rule of law principles, the statutory norms and the common law rules, with a view to ascertaining how it is intended to operate in that context: [42] and [45].”

39.  In considering the interpretation and application of the NSL, we bear in mind what has been highlighted by the Court of Appeal in Tong Ying Kit v Secretary for Justice[57] that the articles contained in the NSL have to be read as a coherent whole, taking into account the constitutional basis upon which it was applied to Hong Kong, its special constitutional status focusing on safeguarding national security and preventing and suppressing acts endangering national security, and the matrix in which NSL 44 existed, including the human rights and rule of law principles referred to in NSL 4[58], which mandates respect for and protection of the rights and freedoms enjoyed by residents, and NSL 5[59], which requires adherence to rule of law principles in achieving the primary purpose of the NSL.

40.  We also bear in mind the caveat entered by Cheung CJHC (as he then was) in ZN v Secretary for Justice[60] that the jurisprudence from the European Court of Human Rights must be approached with great caution. This is because the relevant provisions in the European Convention have to be construed as a living instrument accordingly, understandably, it looks at matters from the European perspective, whereas the NSL is a national law designed to protect and safeguard the national security to be applied to the local context, in particular the “One Country, Two Systems” policy which is the very foundation of the HKSAR. Whilst European jurisprudence would be of assistance, there would be areas (of which national security would be an obvious example) where the Strasbourg Court may not sufficiently appreciate or accommodate particular aspects of our domestic constitutional position. In the same vein, Poon CJHC giving the judgment of the Court of Appeal in Q v Commissioner of Registration[61]says:

“74. In interpreting fundamental rights in the Basic Law and the BOR, it is entirely appropriate for the courts in Hong Kong to consult the established principles of international jurisprudence, including that of the ECtHR. After all, these fundamental rights are of universal significance. The Court of Final Appeal has consistently regarded the decisions of the ECtHR on provisions in the same or substantially the same terms of the BOR, as highly persuasive, though not binding, authority. However, there are three general caveats that must be firmly borne in mind when the courts consider the persuasiveness of the ECtHR decisions. The first two arise from the very nature and make-up of the ECtHR:

(1) The ECtHR plays a supra-national role under an international treaty, that is, the European Convention on Human Rights, in relation to member states of the Council of Europe. It therefore functions quite differently to a domestic forum, such as the Court of Final Appeal or this Court, applying human rights provisions in the context of local circumstances and landscapes. Such differences may sometimes make it inappropriate to take the path followed by the ECtHR: ZN v Secretary for Justice (2020) 23 HKCFAR 15, per Fok PJ at [60].

(2) Judges sitting in the ECtHR are elected from all the contracting states. They purport to interpret and apply the various rights of the European Convention in accordance with what they perceive to be the developments in prevailing attitudes of the contracting states. The result is a body of law which reflects the values of the contracting states, but which most certainly does not reflect those in many other parts of the world: R (Al Skeini) v Defence Secretary [2008] 1 AC 153, per Lord Rodger at [78]; cited in W, at [114]. As Lord Hughes observed in Lendore v AG of Trinidad and Tobago (PC) [2017] 1 WLR 3369, at [60], it is inherent in the concept of fundamental rights that different jurisdictions may develop the law in ways that reflect their own constitutional principles and traditions, legal procedures and collective values. After noting the significant features of ECtHR’s jurisprudence which are different from domestic courts, Lord Hughes cautioned:

‘It is not the duty of the courts of independent non-party states to follow every turn in its case law as it occurs.’

So the primary consideration must remain how best the courts in Hong Kong should interpret and develop the fundamental rights in the Basic Law and the BOR according to our constitutional setting, legal landscape and societal values to meet our own circumstances and needs.

The third general caveat is that when a ECtHR decision is fact sensitive, it is hazardous to apply it to a case where the facts are materially different: ZN, ibid.”

Consideration

Ground 1

41.  In dealing with the submission of leading counsel for D1, it needs to be pointed out at the outset that he categorically disavows any reliance on “actual bias” as a ground for stay. In this regard, we note also that there has been no application for any member of the present panel to be recused. The present application, as we understand it, is an attack on the current system based on the notion of “apparent bias”. Leading counsel hastens to add that this application is not meant to be a challenge to the constitutionality of NSL 44 and that it is not the applicant’s position that NSL 44 is bound inevitably to render proceedings an abuse of process. With respect, this concession is rightly made. This is because the Court of Final Appeal had already held in HKSAR v Lai Chee-ying[62] that:

“37. In our view, in the light of Ng Ka Ling v Director of Immigration (No 2), the legislative acts of the NPC and 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.”

42.  However, in our judgment, contrary to the stated position of leading counsel, apart from “Strand 7” (open statements by the CE about the applicant), the present application is but a systemic attack to trials by designated judges under NSL 44 through the “backdoor”. This is evident by the fact that any of “Strand 1” to “Strand 6”, if correct, could apply to each and every case under the NSL so that no person charged with an offence endangering national security could be tried or if tried whose appeal could be heard in Hong Kong pursuant to NSL 44 (3) and 45.

43.  Putting aside that surprising result for the moment, we are also not convinced that any of the “Strands” put forward by D1 has any merit. Our reasons are as follows.

As regards “Strand 1”

44.  Leading counsel accepts, in our view realistically, that appointment of judges by the executive does not per se compromise the independence of those judges: Kearney v HM Advocate[63]. In fact, all judicial officers in Hong Kong, whether designated under NSL 44 or not, are appointed by the CE: BL 88. However, leading counsel underscores the fact that the CE is not obliged to make public the fact or consequence of any consultation which he may have conducted with the CJ before any designation, leaving him free to depart from the CJ’s recommendation absent any public scrutiny. Leading counsel submits that whilst this factor is not of itself decisive, it plainly heightens the concerns regarding the independence of designated judges and provides the basis for the need for stringent safeguards, in order properly to give effect to the right of a criminal defendant to be tried by an independent and impartial tribunal.

45.  As regards the above submission, we accept that the CE is given a wide discretion under NSL 44 as to designation of judges. However, we do not agree that the CE is given a complete free rein in the matter. We say this because before a person can be so designated, he or she has to be either a judicial officer or a deputy judge in the first place. Given that the NSL is generally intended to operate in tandem with the laws of the HKSAR, regard must be had to Section 4, Chapter IV of the BL and the relevant local legislation regarding appointment of judges. In this regard, the following articles in the BL are pertinent:

“BL 85 The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.

BL 88 Judges of the courts of the Hong Kong Special Administrative Region shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors.

BL 89 A judge of a court of the Hong Kong Special Administrative Region may only be removed for inability to discharge his or her duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal and consisting of not fewer than three local judges. The Chief Justice of the Court of Final Appeal of the Hong Kong Special Administrative Region may be investigated only for inability to discharge his or her duties, or for misbehaviour, by a tribunal appointed by the Chief Executive and consisting of not fewer than five local judges and may be removed by the Chief Executive on the recommendation of the tribunal and in accordance with the procedures prescribed in this Law.

BL 90 The Chief Justice of the Court of Final Appeal and the Chief Judge of the High Court of the Hong Kong Special Administrative Region shall be Chinese citizens who are permanent residents of the Region with no right of abode in any foreign country. In the case of the appointment or removal of judges of the Court of Final Appeal and the Chief Judge of the High Court of the Hong Kong Special Administrative Region, the Chief Executive shall, in addition to following the procedures prescribed in Articles 88 and 89 of this Law, obtain the endorsement of the Legislative Council and report such appointment or removal to the Standing Committee of the National People’s Congress for the record.

BL 91 The Hong Kong Special Administrative Region shall maintain the previous system of appointment and removal of members of the judiciary other than judges.

BL 92 Judges and other members of the judiciary of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions.”

46.  Consistent with the BL, judicial officers are appointed by the CE upon the recommendation of the Judicial Officers Recommendation Commission (“JORC”) established under the Judicial Officers Recommendation Commission Ordinance, Cap 92. JORC as an independent advisory body, chaired by the CJ , comprises of the SJ as an ex-officio member and seven members appointed by the CE including two judges[64], one barrister appointed after consultation with the Bar Council, one solicitor appointed after consultation with the Council of the Law Society, three persons who are not connected in any way with the practice of law. Viewed in that light, it can be said that before anyone can be appointed to a judicial office, the candidate has to have the general support of the judiciary, the legal profession and reputable members of society alike. Appointment of judges, whether local or from overseas, must be based on and only on judicial and professional qualities, as stipulated under BL 92. If a candidate is considered to possess the right qualifications and qualities to be entrusted with a judicial office, then it is difficult to see how the position would change just because of a designation under NSL 44. As the CJ pointed out in his speech at the ceremonial opening of the Legal Year 2022[65],

“In this connection, it should be noted that judges hearing national security cases are designated from serving judges only. By definition, they are persons who have satisfied the high requirement of judicial and professional qualities under Article 92 of the Basic Law to be appointed as judges in the first place.”

47.  As regards deputy judges and judicial officers at different levels of trial courts[66], they are all appointed by the CJ without any involvement of the CE. Their appointments are temporary and are usually on short-term basis. So far, we are not aware of any lawyers in private practice sitting as deputy judges who have been designated by the CE pursuant to NSL 44.

48.  In our judgment, apart from the qualities and qualification of the person who is appointed to judicial office, the following additional factors are also conducive to public confidence in the independence of the judiciary:

(1)  designated judges, like all other judges, are subject to the Judicial Oath which all judges are required to take under BL 104[67];

(2)  whilst the general power to designate judges to hear national security cases vests in the Chief Executive, the actual assignment of designated judges to hear individual cases remains the responsibility of the Court Leaders, just like all other types of cases: Tong Ying Kit v HKSAR[68];

(3)  court hearings are generally open to the public, our judicial decisions are publicly announced, and the courts’ reasons are published for everyone to study; and

(4)  in the case of a trial held by a panel of 3 designated judges in the Court of First Instance pursuant to NSL 46, its verdict is given in a fully reasoned judgment which is published online for public scrutiny. Moreover, the same procedural safeguards are in place to ensure a fair trial as in a jury trial, and the same appeal procedure is available to a defendant in case of a conviction.

49.  As regards the case law, Brooke and Starrs, which are based on their own facts, do not in fact assist D1:

●  In Brooke, there was the distinguishing feature that the relationship of sponsorship between the Parole Broad and the Ministry of Justice which, the Divisional Court concluded, gave rise to what objectively appeared to be a lack of independence, and to cause the sponsoring department to treat the board as part of its establishment[69]. On appeal, the English Court of Appeal saw that the cause of the problem had been the change of function of the Parole Board from that of a body advising the Secretary of State in relation to the executive discretion to release prisoners whose penal sentences were part served to that of a judicial body assessing whether continued deprivation of a prisoners’ liberty is justified because of the risk that he will re-offend if released[70]. Moreover, there was evidence in that case that the department had both by directions and by the use of its control over the appointment of members of the board sought to influence the manner in which the board carries out its risk assessment[71].

In the present case, however, there is no such “relationship of sponsorship” and designated judges do not receive directions from anyone as to how they should perform their judicial functions.

●  In Starrs, the issue was about the independence of temporary trial judges (temporary sheriffs) who were appointed by the Secretary of State on the advice of the Lord Advocate, himself also a member of the Executive. Temporary sheriffs were appointed for one year at a time. Although the appointment was renewable, and generally was renewed, there was no certainty that it would be. The arrangements were held to be inconsistent with the security of tenure necessary to guarantee the independence of the temporary sheriffs in question. It was because an objective observer would see a real risk that the temporary sheriff judge might be affected, consciously or unconsciously, by the control over his or her appointment maintained by the Executive. The brevity of the term of appointment was therefore considered to be a critical part of the flaw in the system.

In Hong Kong, however, as aforesaid all the current designated judges are holders of substantial judicial office enjoying security of tenure entrenched by the BL.

As regards “Strand 2”

50.  We accept that NSL 44 only stipulates that a judge is not to be designated and, if designated, shall be removed from the list of designation, if he or she has made any statement or behaved in any manner endangering national security. That this requirement is entirely legitimate, reasonable and necessary goes without saying. As noted above, NSL being a national law applied to Hong Kong by way of promulgation, we do not think that it is viable to introduce additional requirements for designation of judges by way of local legislation as suggested by counsel.

51.  Leading counsel complains that it is not known whether (and to what extent) the CE, in making the designation, had regard to: (1) the previous judicial decision-making of designated judges (and whether it is perceived to favour the Government); (2) the political or other opinions or affiliations of designated judges; or (3) the nationality of designated judges.

52.  In our judgment, the aforesaid complaint is simply unfounded. It must be taken as a starting point that professional judges would take their judicial oath seriously and that they would put aside their personal inclinations and preferences and would decide the case before them solely on the basis of the evidence, the applicable laws and the merits. Senior Counsel suggests that the judicial oath is somehow tainted by the addition of s3AA[72] of the Interpretation and General Clauses Ordinance, Cap 1 which elaborates on the meaning of “upholding Basic Law” and “bearing allegiance to HKSAR” in the judicial oath to include, among other things:

(1)  upholding the constitutional order of the HKSAR established by the Constitution of the PRC and the BL: s3AA(1)(a)

(2)  upholding the national sovereignty, unity, territorial integrity and national security of the People’s Republic of China”: s3AA(1)(b);

(3)  upholding (i) the fact that the HKSAR is an inalienable part of the PRC; (ii) the PRC’s exercise of sovereignty over the HKSAR; and (iii) the Central Authorities’ exercise of governance over the HKSAR under the BL: s3AA(1)(c);

(4)  upholding the implementation of “one country, two systems”: s3AA(1)(d).

With the greatest respect, this is a non-point which should not have been made at all. In fact, the aforesaid requirements come from the BL itself and is the very foundation of the HKSAR. In our judgment, the addition of s3AA to Cap 1 is simply to state the obvious and it introduces no change to the substance of the judicial oath.

53.  Secondly, although the CE has not published any criteria for designation under the NSL, all judges, whether designated or not, are subject to the “Guide to Judicial Conduct”[73] the very guiding principles of which are “Independence”, “Impartiality” and “Integrity and Propriety”. In particular, judges are discouraged to have any political membership or affiliation:

“Political organisations or activities

89. Judges should refrain from membership in or association with or making contributions to political organisations or activities. For example, a judge should refrain from attendance at political gatherings or demonstrations. Judges should also refrain from making public statements or petitions, whether or not jointly with others, on matters of a political or controversial nature. But a judge is of course free to exercise his or her electoral rights.

90. Where a close member of a judge’s family is politically active, the judge should bear in mind that in some cases, the question of disqualification may arise for consideration as concerns may exist as to the perception of the judge’s impartiality.”

54.  Whilst NSL 44 refers to the designation of a number of judges, this is not automatically to suggest the unsuitability of the other judges in the Judiciary. As Ma CJ said in an open statement on 30 June 2020:

“In considering the suitability of judges to be designated, any legal objections will have to be taken into account, such as those set out in Article 44 or any objections based on bias or reasonable perceptions of bias or other legal objections. It is intended that once the term of designated judges comes to an end, other suitable judges may be designated. This will in particular apply as far as the Non-Permanent Judges of the Court of Final Appeal from common law jurisdictions are concerned.”

55.  Thirdly, as Ma CJ said in the aforesaid statement, judges of foreign nationality are not excluded from designation. This is in fact shown by the composition of the present panel and the composition of other trial and appellate courts which have dealt with cases under the NSL before.

As regards “Strand 3”

56.  The setting up of a list of designated judges would be conducive to improving the efficiency of trials and consistency. In this regard, NSL 42(1)[74] & 58(2)[75] read together requires the fair and timely disposal of NSL cases. As such, it would fall on the CE to designate sufficient number of judges at different levels of courts so that NSL cases could be dealt with as expeditiously as fairness demands.

57.  Whilst we accept that there are no publicly available figures on how many judges have, to date, been designated, one can reasonably expect that the size of that pool would depend on the number of cases to be dealt with, the numbers of judicial officers with the relevant expertise available and generally operational needs. It is now public knowledge that a sizeable number of judges at different levels have already been designated under NSL 44. Bearing in mind that there are only about a dozen criminal judges at this level of court, there are at least a sufficient number of designated judges to form two panels at the same time. The proportion of judges in the Court of Appeal and the Court of Final Appeal who have dealt with NSL cases could only be even higher. In view of the number of judges which have already been designated and given also that assignment of trial judges for any given case is a matter entirely for the relevant court leaders, it is clearly not the case, as leading counsel seems to suggests, that the CE could or would manipulate the allocation of trial judges. In a similar vein, we observe that seven judges from three levels of courts, namely the Court of First Instance, the Court of Appeal and the Appeal Committee of the Court of Final Appeal, which were involved in the matter about Mr Owen’s ad hoc admission for the present case had ruled in his favour. This, in our view, speaks loud and clear of the unquestionable judicial independence in Hong Kong.

As regards “Strand 4”

58.  Leading counsel submits that the present designation process is the subject of considerable secrecy and there is no public accountability of that process under NSL 44. By way of illustration, counsel underscores that there is no public information as to: (1) whether designation is made upon application by the individual judges, or on the initiative of the CE; (2) the criteria applied in designating judges; (3) whether any consultation has taken place in designation decisions (and the outcome of that consultation); (4) whether any judges have sought and/or been considered for designation, and refused; (5) the number of designated judges; (6) the identity of the designated judges; (7) the criteria applied in considering the renewal of designated judges; (8) whether any designated judges have not been renewed or have been removed from the designated list (and, if so, on what basis).

59.  As to the question about the CE’s accountability to the public in relation to designation, we note that the reports of JORC to the CE are also privileged and confidential[76]. If the reports of JORC to the CE should be confidential, then we fail to see why the advice given by the CJ to the CE on designation of judges under NSL 44 should not similarly be made confidential. Although arguably a higher degree of transparency may be conducive to public confidence, NSL 44 on its face does not require the CE to disclose the information which leading counsel submits should be made public. In any event, if there were any legal duties on the CE to make the disclosure sought, they would be overridden by NSL 62.

60.  If we are correct that there is in fact no legal duty for the CE to disclose the information which leading counsel submits should be made known, then just as the reports of JORC to the CE would not be made available to the defence, we are unable to see how the absence of the information sought in the public domain would render the trial unfair or apparently unfair. Firstly, as aforesaid, designations are only made from serving judicial officers who, because of their respective professional qualifications and qualities, have already been considered as fit and proper persons to perform judicial function at their respective levels. Secondly, there is and can be no challenge to the fact that the present panel is properly designated by the CE. Thirdly, leading counsel has not specified how the availability of the kind of information in the public domain would assist D1 or how the absence of the information would prejudice his defence. Fourthly, if there is any suggestion by counsel that designated judges would not be renewed or would be removed for achieving an illegitimate purpose, that is based on pure speculation. For one thing, a member of the present panel had once granted bail to D1. Even though his ruling was set aside on appeal by the Court of Final Appeal on a question of law, that did not cause his designation to be removed or prevent him from being re-designated and assigned to deal with this case and other NSL cases.

As regards “Strand 5”

61.  With the greatest respect, we firmly reject the submission of leading counsel that the general security of tenure as entrenched by the BL is not sufficient for the present purpose:

(1)  The case of Starrs, which concerned the appointment of lawyers in private practice to be temporary judges bears no factual resemblance to the present case. Even if the designation of a judge under NSL 44 is not renewed or is revoked, the judge still enjoys the security of tenure guaranteed by the BL. A designation under NSL 44 gives a judge no advantage and in case of a non-renewal the judge suffers no loss: Tong Ying Kit v HKSAR, ante. As regards revocation of designation, the threshold (making a statement or behaving in a manner endangering national security) is an extremely high one. It is difficult to see how any reasonable man might think that a judge acting in good faith would have reached that threshold just because the decision he or she made happens to be not in favour of the executive.

(2)  As to the proposition that a judge (not to say a judge sitting in the High Court) would be perceived by a reasonable person to be likely to seek to maintain his or her status as a designated judge by subconsciously favouring the government, it borders on an insinuation about the integrity of the members of the judiciary. The irony of D1’s submission is that at the time of this judgment, some foreign elements are attempting to interfere with our judicial independence by threatening to impose “sanctions” on judicial officers of all levels who have dealt with cases brought under the NSL. Needless to say, the threat would have no effect whatsoever on judges’ adherence to their judicial oath. It is also necessary to remember that NSL cases comprise of only a small proportion of all criminal cases; that elevation to a higher judicial post is based on the recommendation of JORC; and that assignment of cases is a matter entirely for the judiciary.

(3)  The fact that Mr Owen was admitted for the purpose of this case at first instance which decision was upheld on appeals in spite of the stance of the executive and the criticism from some sectors of the society speaks loud and clear for the independence of the judiciary in Hong Kong. Any perceived “apprehension” that designated judges would favour the executive must now have been dispelled.

As regards “Strand 6”

62.  We are unable to see the relevance of this contention, as the issue about NSL 47 bears no relation at all to the designation of judges for criminal cases. This is because the issue of what is “an act involving national security” or whether the relevant evidence involves “State secrets” can arise in civil as well as criminal cases and that, we think, is the reason why NSL 47 is not restricted to trials by designated judges.

63.  Secondly, that the courts are bound as regards certain matters by a certificate from the executive does not mean the courts may have a bias. It simply means that the courts’ jurisdiction is restricted in relation to those matters, an example of which can be found in the BL 19 concerning “acts of state”: see Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 2)[77].

64.  Thirdly, since there is (and can be) no challenge to the constitutionality of NSL 47, we are unable to see how that article can afford D1 a ground for stay or to support his contention of “apparent bias”.

65.  Last but not least, in any event, as is apparent from the written opening filed by the prosecution, the present case involves no “State secrets” and the prosecution has expressed no intention of invoking NSL 47.

As regards “Strand 7”

66.  Leading counsel refers to a press conference held on 27 June 2021 during which the current CE, who was then the Secretary for Security, was reported to have said the following:

“This case involved a conspiracy. We are talking a conspiracy in which there are a series of acts. The Police have already informed the media that one of the acts involved publication in Apple Daily and also online news regarding articles that invite foreign countries or external elements to impose sanctions or take hostile activities against Hong Kong and the PRC. This is the conspiracy. We are not talking about media work or journalists’ work. We are talking about a conspiracy in which the suspects tried to make use of journalistic work to collude with a foreign country or external elements to impose sanction or take hostile activities against Hong Kong and the PRC, so we need to look at that. And also we need to differentiate what these suspects have done from normal journalistic work. Normal journalistic work, of course, takes place freely and lawfully in Hong Kong, and I do not envisage any professional journalists would be conspiring to do any act to endanger national security. So the answer is simple – do your journalistic work as freely as you like in accordance with the law provided you do not conspire or have any intention to break the Hong Kong law and certainly not the Hong Kong National Security Law. The second thing is, the suspects have been arrested on strong evidence that they are conspiring to endanger national security. It is your choice whether you will regard them as part of you, who go about your journalistic work lawfully and properly. If anybody’s act causes damage to the reputation of journalistic work as a whole because they are involved in a conspiracy, then it is only to the good and credibility of Hong Kong journalistic work that action is taken against the criminals who make use of journalistic work as a tool to further their criminal activities.”

「我在這裏鄭重聲明，切勿與危害國家安全的罪犯同流合污，與這些罪犯為伍，會付上沉重代價，應該與罪犯切割，以免後悔莫及。」

(Translation: “I hereby solemnly declare that: don’t associate with these criminals endangering national security, you will pay a hefty price if [you] stand with these criminals, [you] should cut ties with these criminals before it’s too late to repent.”)

67.  Leading counsel submits that the conduct of the CE would give rise to an obvious fear, in the mind of the fair-minded and informed observer, that designated judges may be biased – even if only subconsciously – against D1, because of the known views of the individual personally responsible for their (re)designation.

68.  We accept the submission of the prosecution that the aforesaid statements attributed to the CE are only general appeals to the public not to engage in any acts endangering national security and are apparently made in response to the reporters’ enquiry about how to avoid criminal liabilities under the NSL when carrying out their journalistic work.

69.  We have already given reasons as to why the general security of tenure is sufficient to protect judges, designated or not, from executive interference. If a jury can be trusted not to be affected by any newspaper reports they have read which may be prejudicial to the accused, then more can be expected of professional judges: R v Edward Christopher Harris[78]; and HKSAR v Lee Kwok Wah Francis[79].

Overall consideration on apparent bias

70.  In our judgment, all the “strands” put forward on behalf of D1, whether taken individually or as a whole, is insufficient to cause a fair and informed observer, having considered the facts, to conclude that there is a real possibility that any judge designated under NSL 44 would be biased, actually or apparently, against D1. Furthermore, in all the circumstances, it would not be an affront to the court’s sense of justice to be asked to try D1, as this Court can be sure that D1 can and will receive a fair trial before a panel of designated judges. Simply put, the contention based on “bias” or “apparent bias” is not made out.

71.  For the sake of argument, even assuming that we were wrong about our conclusion on “apparent bias”, this application for stay must be rejected on the basis that:

(1)  D1 does not (and in fact cannot) challenge the constitutionality of NSL 44,

(2)  the present panel of 3 judges are duly designated under NSL 44;

(3)  no actual bias is alleged nor can it be shown;

(4)  by virtue of NSL 62, the law on “apparent bias” must now be subject to the provisions of NSL 44 and 46, so that a systemic attack like the present one on trials by designated judges cannot be entertained; and

(5)  last but not least, D1’s contention, if correct, would mean that he could not be tried by any courts in Hong Kong, regardless of the seriousness of the allegations against him. That would plainly be contrary to public interests and the legislative intent of the NSL.

Ground 2

72.  Before dealing with this ground, we note that Leading Counsel confirms that Ground 2, like Ground 1, does not seek to impugn a system designed for the protection of national security. Besides, he readily accepts that the interpretation given by the NPCSC is a measured one which makes no reference to Mr Owen, KC, D1 or the criminal trial.

73.  As regards the factual background for this ground, the chronology of events is as follows:

19.10.2022	Mr Owen’s application for ad hoc admission to represent D1 in the trial was opposed by the SJ and the Hong Kong Bar Association. Issues about NSL 14 and NSL 47 were not raised by any of parties. CJHC exercised his discretion and granted the application on general principles[80].
9.11.2022	The SJ appealed to the Court of Appeal (“CA”) against Mr Owen’s ad hoc admission. The appeal was dealt with on paper on an expedited basis in view of the imminent trial. Again, issues about NSL 14 and NSL 47 were not raised by any of parties. The CA held that it was not proper to interfere with CJHC’s discretion. SJ’s appeal was dismissed[81].
11.11.2022	Mr. Owen applied to the Immigration Department for an extension of his work visa so that he could take up a “sideline employment” for the present trial[82].
21.11.2022	The SJ applied to the CA for leave to appeal to the CFA. There was a change of legal representation of the SJ and for the first time arguments about national security were raised. The Court of Appeal refused to grant leave[83].
28.11.2022	The Appeal Committee refused the SJ leave to appeal to the CFA[84]. On the same day, CE submitted a report to the Central People’s Government (“CPG”) in accordance with NSL 11, recommending that a request be made under NSL 65 to the NPCSC to issue an interpretation. The proposed question for the NPCSC was as follows: “Based on the legislative intent and objectives of the National Security Law, can an overseas solicitors or barrister who is not qualified to practice generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?”
29.11.2022	Prosecution wrote to this court seeking an adjournment of the trial pending the interpretation of NSL by the NPCSC.
30.11.2022	Solicitors for Mr Owen wrote to the Director on an urgent basis, seeking an extension of his existing work visa to cover D1’s trial. The Director wrote to the solicitors that they were processing Mr Owen’s application. The Director noted that the prosecution had indicated an application for adjournment of the trial and that CE had submitted a report to CPG seeking an interpretation of the NSL.
1.12.2022	On the original first day of the trial, the case was adjourned upon the Prosecution’s application pending the interpretation sought. The adjournment was not opposed by D1 and other defendants.
2.12.2022	Solicitors for D1 wrote to the Director alleging that the failure to exercise his discretion to extend Mr Owen’s work visa was “unlawful”.
5.12.2022	The Director wrote in reply refuting the allegation.
30.12.2022	The NPCSC gave an interpretation of NSL 14 and 47.
3.1.2023	Solicitors for D1 wrote to the Director saying that Mr. Owen withdrew his application for sideline employment from the Immigration Department on “without prejudice” basis.
11.1.2023	NSC held a meeting in which: (i)  it made the judgment and decision that the proposed representation of D1 by Mr Owen in the trial concerns national security which is likely to constitute national security risks and is contrary to the interests of national security; and (ii)  it advised that, if a fresh sideline employment approval application in relation to the proposed representation of D1 in HCCC 51/2022 is received from Mr. Owen, such application should be refused in view of the above judgment (“NSC’s Decision”). On the same day, the NSC issued a press statement announcing, among other things, that it had a meeting to discuss the implementation of the Interpretation.
16.1.2023	D1’s solicitors wrote to the Prosecution, with reference to HCMP 1402/2022, seeking the SJ’s confirmation about the effect of the Interpretation being non-retrospective. The solicitors demanded the SJ’s reply within 7 days.
20.1.2023	Civil Division of Department of Justice replied and expressed surprise that D1’s solicitors had written to the Prosecutions Division instead of liaising with the Civil Division concerning Mr Owen’s ad hoc admission. Civil Division considered that D1’s request for confirmation amounted to seeking of legal advice and it was the professional duty of the solicitors to give their client the advice.
27.1.2023	The gazette of the NPCSC’s interpretation[85].
17.2.2023	D1 filed an application (HCMP 253/2023) for: (1)  A declaration that the Interpretation does not affect the judgment previously given by the Courts; and (2)  Alternatively, an order for the Court to request and obtain a certificate from CE under NSL 47 on whether Mr. Owen or any other overseas lawyer who is not qualified to practise generally in Hong Kong serving as defence counsel or legal representative for D1 involves national security.
20.3.2023	The Director filed an affirmation (in HCMP 253/2023) relaying the NSC’s Decision and stated that he would duly respect and implement the NSC’s Decision pursuant to NSL 14 and paragraph 1 of the Interpretation and the applicable laws and policies. (“Purported Director’s Decision”).
11.4.2023	D1 filed an application for leave to judicial review (HCAL 566/2023) seeking: (1)  A declaration that the NSC’s Decision and the Director’s Decision are ultra vires NSL 14. (2)  An order of certiorari to bring up and quash the NSC’s Decision and the Director's Decision.

74.  Since Poon CJHC has already given judgment in favour of the SJ in HCMP 253/2023 and HCAL 566/2023 (Heard Together)[86], the present stay application must be proceeded on the basis that the judgment and the decision of NSC on 11 January 2022 was within its power and the exercise of that power is not unlawful. Furthermore, when dealing with this ground we will focus on the issue as to whether the conduct of the authorities and the people D1 complained of as regards Mr Owen’s applications for admission and for sideline employment, would be such that ‘the court’s sense of justice and propriety’ or public confidence in the proper administration of justice is or would be offended, whether or not Mr Owen would eventually be able to represent D1 in the coming trial. As pointed out by the Court of Appeal in HKSAR v Wong Hung Ki & Anor[87], this is a highly fact-sensitive question.

75.  Before dealing with this ground, it has to borne firmly in mind that:

(1)  The SJ’s role as the guardian of public interest in the ad hoc admission proceedings and his prosecutorial role in criminal trials are separate and distinct and cannot be conflated: Re Mably[88]. Therefore, D1’s letter dated 16 January 2023, which refers to HCMP 1402/2022, should have been addressed to the Civil Division of the Department of Justice rather than the Prosecutions Division.

(2)  there is no absolute right to “choice of lawyers” under BL 35. The right to “choice of lawyers” means no more than that a litigant is free to choose his counsel from those available to represent him. A person has no right to insist on being represented by a lawyer who does not have a general right to practise in Hong Kong: Re Simpson QC[89];

(3)  there are ample case authorities from the highest courts, both local and overseas, that national security is the responsibility of the executive government and that the Government has much greater expertise in assessment risks to national security: Hysan Development Company Limited v Town Planning Board[90]; The Zamora[91]; Council of Civil Service Unions and others v Minister for Civil Service[92]; and R (Lord Carlile of Berriew) v Secretary of State for the Home Department[93];

(4)  Mr Owen’s ad hoc admission for the present case was granted without any consideration of implications under NSL 14 and NSL 47, as it was not raised by any of the parties before the court; and

(5)  the Appeal Committee, having declined leave to appeal on the Flywin principle[94], found it unnecessary to consider whether the Court of Appeal was correct to hold that certain questions raised by the SJ were not reasonably arguable[95]. That said, it was stressed that national security considerations, where they properly arose, were considerations of the highest importance to be taken into account in ad hoc admissions. However, the SJ had fundamentally changed his case only at the stage of seeking leave to appeal to the Court of Final Appeal, raising undefined and unsubstantiated issues said to involve national security which were not mentioned or explored in the Courts below. As a result, no appropriate basis had been made out for the grant of leave to appeal[96].

76.  In dealing with Ground 2, we note firstly that in the matter of Mr Owen’s ad hoc admission in question the SJ had all along been represented by different senior counsel outside the Department of Justice and there is also nothing to show that the prosecution team had any input in this matter. There is also not a scintilla of evidence to suggest that any of those senior counsel had anything to do with the prosecution of this case.

77.  Secondly, bearing in mind the above, it is perhaps unfortunate that the issues about the NSL were not raised at the first instance. Nevertheless, in our judgment, not only was there no actual conflict between the determination of the Appeal Committee and the CE’s subsequent request for an interpretation of the NSL from the NPCSC, but also that the CE was in fact duty bound to seek the interpretation. This is because:

(1)  the CE, in his dual capacity as the head of the HKSAR Government and the Chairman of the NSC, is accountable to the CPG for affairs relating to safeguarding national security in the Region for which he also assumes primary responsibility: NSL 11 & NSL 12;

(2)  as the Appeal Committee observes, if the issues about NSL had been properly raised, then those issues would have been considerations of the highest importance to be taken into account in ad hoc admissions. Thus, the ad hoc admission of Mr Owen in the present case raised an important issue about the operation of the NSL which needed to be resolved; and

(3)  in view of the aforesaid and the approaching of the original trial dates, it was only proper for the CE to seek an interpretation as a matter of urgency from the NPCSC on which the power of interpretation of the NSL is vested: NSL 65. With respect, any complaint about the timing of the request is a non-point.

78.  Thirdly, as regards the public statements concerning this case which are attributed to people or entities perceived to represent the views of the authorities, we need to say no more than that judicial independence is guaranteed by BL 85. As professional judges, we will not be affected in any way by the public statements D1 complained about. His case is to be determined according to the applicable law and solely on the basis of the available evidence of which those public statements form no part.

79.  Fourthly, given the CE’s request for interpretation and the time it would take for the interpretation, if made, to be available, the original trial dates fixed had simply become unworkable. This is supported by the fact the application for adjournment had not been met with any objection from the defence, including Leading Counsel representing D1. Furthermore, given that the trial was to be heard before 3 judges instead of a judge and a jury, taking also into account the busy diaries of the various legal representatives concerned, the parties must have realized at the time that once the trial was put off, it would take time for the trial to be heard.

80.  Fifthly, it is necessary for us to point out that: (1) application for ad hoc admission; and (2) immigration control are two separate regimes involving different policies and considerations. As aforesaid, in making the decision to grant Mr Owen ad hoc admission for D1’s trial, the Court had not been informed of or taken into account any factors which might concern national security. The legality of the decision of the NSC on any future visa application of Mr Owen is the subject matter of D1’s judicial review proceedings. In this regard, Poon CJHC, after an extensive examination of the constitutional framework of the relevant articles in the BL and the NSL, says[97]:

“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.

…

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.”

81.  We would also like to add that, in view of the then on-going litigation about the latter’s ad hoc admission, the subsequent request by the CE for interpretation of the NSL and the Director’s capacity as a member of NSC, we do not see how the Director could be criticized for taking a more cautious approach in processing Mr Owen’s application for approval to take up a sideline employment in the present case[98]. At the end of the day, since Mr Owen withdrew his application, there was no outstanding application for the Director to consider.

82.  Sixthly, as regards D1’s complaint that the decision of the NSC made on 11 January 2023 circumvented the procedure of obtaining a certificate under NSL 47, we agree with the observation of Poon CJHC that paragraph 2 of the Interpretation only requires the HKSAR courts to request and obtain a certificate from the CE as to whether an act involves national security “when such a question arises in the adjudication of a case concerning an offence endangering national security”[99]. We also agree with him that[100]:

“[The Interpretation] 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.”

83.  The prosecution submits that in the present case the decisions made by the NSC cannot constitute a ground for stay; otherwise it would amount to a “backdoor challenge” to those decisions which, by NSL 14(2), shall not be amenable to judicial review. With respect, we are unable to accept this argument. While we accept, as Poon CJHC has already held, that the decisions of NSC cannot be challenged by way of judicial review, this Court has a duty not to allow any abuse of its own procedure. In this regard, the following paragraphs of Stock VP (giving the judgment of the Court of Appeal) in HKSAR v Wong Hung Ki & Anor are pertinent[101],

“d. Where a fair trial remains possible despite official misconduct in the bringing of the prosecution, the public interest lies in proceeding with the trial in order to determine the guilt or innocence of the accused.

e. That said, there will be circumstances, though rare indeed, in which, despite the availability of a fair trial, an abuse of power so offends the court’s sense of justice and propriety or, put another way, is of such a kind as to affront the court’s sense of justice and propriety with severe consequences for public confidence in the administration of justice, that the court may feel duty-bound to exercise its discretion to order a stay of the proceedings.

f. Such a circumstance will most obviously arise where illegal conduct by law enforcement authorities or prosecutors ‘is so grave as to threaten or undermine the rule of law itself’ in which case the court ‘may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case.’”

84.  That said, in the present case based on the evidence before us, we agree with the prosecution that by the time NSC met on 11 January 2022 no practical use could be served for the Court to obtain a certificate from the CE, as the Appeal Committee had already given its determination. Moreover, NSC has already obtained the Interpretation where it is said at paragraph 3:

“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 [NSL 14] to make relevant judgements and decisions on such situation and question.”

Thus, we are unable to see how the NSC could be criticized for complying with the Interpretation and performing their statutory duty under the NSL. It is also pertinent to note that at the time there was no pending sideline employment application from Mr Owen whose application had already been withdrawn. Last but not least, there is no evidence that the NSC was acting in bad faith.

85.  Seventhly, we are not impressed by leading counsel’s submission that the SJ should have, before D1 took out the summons in HCMP 253/2023, initiated an application to the court seeking clarification of the Interpretation to Mr Owen’s application, bearing in mind that there was no outstanding application from him for the Director to consider. For the same reason, we are also not impressed by D1’s complaint that the SJ had failed to disclose to him the NSC’s Decision until after he had filed the application for declaration, as we fail to see how it can be said that the SJ or the Director owes a duty to inform Mr Owen or D1’s solicitors of the NSC’s decision in the first place. This is especially so when one takes into account the provision of NSL 14(2) which says that information relating to the work of the NSC shall not be subject to disclosure. As regards the revelation of the NSC’s decision in the Director’s reply affirmation filed for the purpose of HCMP 253/2023, that, we are told and we have no reason to believe otherwise, was provided solely to assist the Court in dealing with D1’s application.

86.  Having considered the matter in the round, we are not satisfied that a case has been made out that there has been a collapse of the principle of “separation of functions”; that the Executive has disregarded the ruling of the Court; or that there has been an attempt to erode judicial independence as alleged by D1. In short, we are not satisfied that there has been any abuse of process or affront to the Court’s sense of justice and propriety.

87.  Furthermore, in performing the balancing exercise we find that the balance clearly tips in favour of a trial, taking into account:

(1)  the serious nature (where national security is said to be involved) and the gravity (in terms of duration, scale, organization and possible consequences) of the alleged offence;

(2)  the fact that in coming to its judgment and decision on 11 January 2022, the NSC was acting with the authority bestowed on them under the NSL and there is no evidence of bad faith;

(3)  the non-absolute nature of D1’s right to “choice of counsel” and the fact that Mr Owen does not have the full right to practice as a barrister in Hong Kong;

(4)  it is certainly not the case that D1 is left without adequate and competent legal representation. Rather, D1 has the service of a firm of solicitors and a team of 6 counsel consisting a local senior counsel and senior juniors who have among them extensive experience in criminal cases; and

(5)  as aforesaid, D1 can have a fair trial.

Conclusion

88.  Based on all of the above, we conclude that the grounds relied upon by D1, whether taken individually or as a whole, cannot justify a stay of proceedings. As such, the present application must be rejected.