RE AN APPLICATION BY MR TIMOTHY WYNN OWEN KC

CACV 425/2022

[2022] HKCA 1751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 425 OF 2022

(ON APPEAL FROM HCMP NO 1402 OF 2022)

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J U D G M E N T

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This Court:

1.  This is the application of the Secretary for Justice for leave to appeal against the judgment of this court handed down on 9 November 2022 (“CA Judgment”)[1] dismissing his appeal in opposing the ad hoc admission of Mr Timothy Owen, KC to represent Mr Lai Chee Ying in his trial in HCCC 51/2022, which is scheduled to start in the Court of First Instance on 1 December 2022.

2.  The Secretary is represented by Mr Rimsky Yuen, SC[2] in this application. Mr Robert Pang, SC[3] appeared for the applicant as before and opposes this application.

3.  The Bar Council put in a very short submission by Mr Bernard Man, SC[4] to assist the court. Although it is the Bar’s position that the questions raised by the Secretary concerning the interplay between the National Security Law (“NSL”) and the exercise of discretion to admit overseas counsel on an ad hoc basis under section 27(4) of the Legal Practitioners Ordinance, Cap 159 are of great general and public importance (“GPI”), the Bar acknowledges (as does the Secretary) that the proposed appeal is seeking to reverse an exercise of judicial discretion and the Bar will leave it to the Secretary to persuade this court there are reasonably arguable grounds to justify the Court of Final Appeal interfering with such exercise of discretion.

The Notice of Motion

4.  The questions formulated by Mr Yuen for the intended appeal in the Notice of Motion filed on 15 November 2022 said to be of GPI took up more than two pages. It is best to set them out verbatim rather than attempt a summary. They read as follows:

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

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

(b) Considerations involved in the ad hoc admission cases concerning the interpretation and/or application of provisions contained in the Basic Law of the HKSAR (‘Basic Law’) are generally inapposite, since: (i) the background, nature, objectives and characteristics of the Basic Law and those of the NSL are very different notwithstanding that both ultimately seek to ensure the implementation of ‘one country, two systems’; (ii) the NSL contains inter alia substantive PRC criminal law provisions concerning national security; (iii) an additional and overriding consideration in cases concerning national security is that no institution, organisation or individual in the HKSAR shall contravene the ‘one country, two systems’ principle in exercising their rights and freedoms (NSL 2), whereas this unique consideration is absent from past cases involving ad hoc admission of overseas counsel in cases concerning the interpretation and/or application of the Basic Law outside the context of PRC’s national security; and (iv) NSL is expressly accorded precedence over local laws of the HKSAR under NSL 62.

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

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

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

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

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

3. In any event, the above Questions raise important questions of how the issue of public interests in ad hoc admissions is to be approached in cases concerning national security, and they are of themselves GPI questions or are questions which otherwise ought to be subject of the determination by the Court of Final Appeal. Further, since this is the first ad hoc admission case in the HKSAR in which the underlying proceedings are concerned with national security, the proper approach in ascertaining the public interests should be clarified by the Court of Final Appeal so as to provide guidance for future cases.

4. Insofar as may be necessary, the [Secretary] also relies on the ‘or otherwise’ limb on the basis of the matters set out above, including in particular paragraphs 1(4) and 3 above. Since it is not the Court of Appeal’s practice to deal with the “or otherwise” limb, the [Secretary] reserves the right to expand on this aspect should the matter go further.”

The Secretary’s submissions

5.  Mr Yuen gave an overview of his position as follows:

(1)  Whilst accepting it is settled that public interest is the paramount consideration in dealing with ad hoc admission of overseas counsel, due to the unique nature of issues concerning national security and the application of the NSL, the present case clearly raises questions of GPI.

(2)  Whilst accepting that ad hoc admission of overseas counsel involves the exercise of judicial discretion, by reason of (1) the intended appeal concerns the proper approach to be adopted in such cases and thus matters of principle as opposed to review of exercise of discretion.

(3)  Whilst accepting that his arguments go beyond those made in the appeal by his predecessor Mr Benjamin Yu, SC[5], there is no issue of the state of the evidence being any different had his points been argued earlier and given the important points of principle involved, this constituted exceptional circumstances[6] such that the Court of Final Appeal should resolve and clarify the questions of GPI he formulated.

6.  He submitted that the questions formulated are “plainly reasonably arguable” and warrant consideration by the Court of Final Appeal.

7.  In respect of the unique nature of the NSL, Mr Yuen essentially made the same points that had been made earlier. He repeated the submission that due to the unique nature of the NSL, the contribution of overseas counsel must necessarily be limited and stressed that the NSL was enacted in a continental law system whereas national security law in the UK is derived from common law, statutes drafted in a common law background, international human rights conventions or European Union laws[7].

8.  As for the analogy between the NSL and the Basic Law accepted in the present context in the CA Judgment[8], Mr Yuen repeated the arguments that the NSL situation is very different. He emphasised that the NSL contains provisions modelled on substantive PRC criminal law provisions concerning national security and invoked NSL 2[9] and NSL 62[10].

9.  Mr Yuen sought to raise a new point in §1(2) of the Notice of Motion. He contended that ad hoc admission of overseas counsel in cases involving national security is incompatible with the overall objective and design of the NSL, and asserted that admitting overseas counsel in such cases on an ad hoc basis would generally tend to defeat the aim of the NSL, which was enacted to address, inter alia, interference in Hong Kong affairs by foreign or external forces in any form.

10.  The above contention is advanced by the Secretary for the first time only in seeking leave to appeal to the Court of Final Appeal. To provide legal reasons in support of this new contention, and to establish a nexus between ad hoc admission of overseas counsel in cases involving national security and the apprehended interference in Hong Kong affairs by foreign or external forces thereby defeating the overall objective and design of the NSL, Mr Yuen referred to a number of provisions in the NSL where there is mention of the term “State secrets”: NSL 46 (which provides that the Secretary may issue a certificate directing that criminal proceedings in the Court of First Instance concerning offences endangering national security shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case); NSL 47 (which provides that the courts of the HKSAR shall obtain a certificate from the Chief Executive to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case and the certificate shall be binding on the courts); NSL 41 (which provides while the trial in respect of an offence endangering national security shall be conducted in open court, when circumstances arise such as the trial involving State secrets or public order, all or part of the trial shall be closed to the media and the public but the judgment shall be delivered in an open court); and NSL 63 (which provides that a lawyer who serves as defence counsel or legal representative shall keep confidential State secrets, trade secrets or personal information which he or she comes to know in the practice of law). Mr Yuen emphasised that NSL 63 covers not only State secrets but also “personal information”.

11.  Mr Yuen then argued that while a local member of the Bar is subject to the control and regulation of the disciplinary regime of the Hong Kong Bar Association and the law enforcement regime of the HKSAR, an overseas counsel admitted on an ad hoc basis cannot be meaningfully and effectively subjected to such disciplinary regime once he or she leaves Hong Kong. Hence, admitting overseas counsel on an ad hoc basis in cases involving national security would generally tend to defeat the aim and objective of the NSL, in that there is no meaningful or effective enforcement of overseas counsel’s confidentiality obligations under NSL 63 over State secrets or other confidential information which counsel comes to know in the practice of law.

12.  He prayed in aid NSL 3 (which provides that it is the duty of the HKSAR under the Constitution to safeguard national security and that the executive authorities, legislature and judiciary of the HKSAR shall effectively prevent, suppress and impose punishment for any act or activity endangering national security) and submitted that the need to safeguard national security and to comply with the obligations under NSL 3 should be of paramount importance in considering the public interests in an application for ad hoc admission of overseas counsel.

13.  Mr Yuen submitted that §51 of the CA Judgment made the suggestion that public perception of fairness of the criminal trial would or might be undermined because the application of Mr Owen for admission is refused is “inappropriate, unjustified, illogical and in any event wholly without evidential basis”. He also made the points that public perception in this matter would not be uniform, that Mr Lai has no right to demand overseas counsel be admitted to represent him[11], and that the Secretary has not sought to engage overseas counsel to lead the prosecution at the trial.

14.  In conclusion, Mr Yuen advanced this proposition in §2 of the Notice of Motion: ad hoc admission of overseas counsel in cases concerning national security should generally be refused save in exceptional circumstances and the burden is on the applicant to establish exceptional circumstances. Unless and until this burden is discharged by the applicant, the application for admission should be dismissed. This proposition goes beyond the submissions made by the Secretary on appeal. Mr Man understood this to mean in effect a presumption against the admission of overseas counsel for cases concerning national security or the NSL.

15.  As for the “or otherwise” limb, the Secretary reserves his position, noting that it is not the practice of the Court of Appeal to grant leave to appeal on this limb but would leave it to the Appeal Committee of the Court of Final Appeal to consider if there are exceptional circumstances to warrant granting leave on this footing[12].

Discussion and disposition

16.  Mr Yuen is the fourth Senior Counsel engaged by the Secretary to argue this matter. It is not uncommon for different or additional arguments to be pursued when different counsel takes over. But regardless of the change of counsel, a party is expected to bring before the court substantially all of his arguments, in the absence of unforeseen circumstances. The importance of the issues sought to be raised and the public interest element do not absolve him from this basic obligation. The statements in Chee Fei Ming v Director of Food and Environmental Hygiene (No 2) [2016] 3 HKLRD 412 at §26 were made in a very different context and do not assist Mr Yuen. In light of the tight time frame that the opposite party and the court have been working under in this application, not to mention the serious disruption to Mr Lai’s legal team in their preparation for the impending criminal trial, it is regrettable that the arguments presented by the Secretary have undergone significant changes when he seeks to appeal further to the Court of Final Appeal. We do not consider the circumstances urged upon us by Mr Yuen to be very exceptional under the Flywin principles to justify permission to be granted for new points to be raised in the intended appeal.

17.  In any event, we do not consider his two new contentions reasonably arguable.

18.  In respect of the contention that ad hoc admission of overseas counsel is incompatible with the overall objective and design of the NSL, the provisions in the NSL which mention the term “State secrets” have no bearing on the facts of the present application. As pointed out by Mr Pang, the certificate dated 30 July 2022 issued by the Secretary under NSL 46 directing that HCCC 51/2022 be tried without a jury did not cite “the protection of State secrets” as a ground. Mr Pang informed this court that no State secrets have been disclosed to Mr Lai in the criminal prosecution. As the issue of State secrets does not arise on the facts of this case, it is irrelevant to the exercise of discretion in the present case to be concerned with a hypothetical situation of possible disclosure of State secrets by some overseas counsel who allegedly may not be subject to meaningful and effective enforcement of the disciplinary regime of the Hong Kong Bar Association and by the law enforcement authorities of Hong Kong. There is no proper basis to suggest that Mr Owen might breach the requirement of confidentiality of any information within the ambit of NSL 63.

19.  Mr Pang also drew our attention to NSL 38, which provides that the NSL shall apply to offences under this Law committed against the HKSAR from outside the Region by a person who is not a permanent resident of the Region. Furthermore, all practising barristers in England and Wales are subject to the code of conduct in the Bar Standards Board Handbook and a notice was issued by the Bar Council of England and Wales on “Barristers’ Duties in relation to Foreign Work including European Cross-Border Work”[13], the purpose of which is to draw barristers’ attention to their obligations when appearing or providing legal services outside England or Wales. It is provided in the notice that the Bar Standards Board Handbook applies to the conduct of barristers in court wherever the courts may be sitting and “whatever law they may be applying”. So it does not appear that any enforcement of breach of the code of conduct governing barristers or the laws of Hong Kong would be meaningless or ineffective once overseas counsel has left the territory.

20.  We are not persuaded that in the circumstances of this case, it is reasonably arguable that any nexus between the ad hoc admission of Mr Owen and any apprehension that his admission might defeat the overall objective and design of the NSL could be established. We are not satisfied it is reasonably arguable that the legal reasons put forward by Mr Yuen in support of this contention could be made out. Nor do we consider it possible that the obligation under NSL 3 to safeguard national security might be adversely affected in granting this ad hoc admission.

21.  It is important to focus on the particular circumstances of this case and take into consideration in weighing and balancing various aspects of public interest those aspects that are relevant to the application before the court, otherwise the court would fall into error in taking into account irrelevant matters and this would be a ground for setting aside the exercise of discretion for ad hoc admission.

22.  This brings us to the other new contention of Mr Yuen, which is the proposition that ad hoc admission of overseas counsel in cases concerning national security should generally be refused save in exceptional circumstances and the burden is on the applicant to establish exceptional circumstances. Mr Yuen submitted that this goes to “matters of principle”, as opposed to review of the exercise of discretion. Mr Man regarded this as establishing a presumption against admission of overseas counsel for this particular kind of case.

23.  Mr Yuen’s contention seeks to fetter and curtail the statutory discretion of the court in the ad hoc admission of overseas counsel, contrary to the established law that the statutory discretion is to be exercised in a judicial manner as assisted by relevant principles and guidelines laid down in the authorities over time. If his contention is upheld, the court would no longer be required to carry out a balancing exercise of the relevant aspects of public interest in a particular situation in a flexible and sensible manner to arrive at a decision that best suits the public interest in the application. Its discretion could only be exercised in a particular way. Contrary to Mr Yuen’s submission that he seeks to establish matters of principle, we consider this an unprincipled approach and goes against the grain of guiding principles for the exercise of judicial discretion. It is an untenable proposition and not reasonably arguable.

24.  We do not propose to go over the other grounds of Mr Yuen, which have been ventilated on appeal and dealt with in the CA Judgment. Nor is it necessary to deal with Mr Yuen’s submission that public perception is irrelevant in this situation or that public perception needs to be supported by evidence save to say that the authority he cited[14] provides no support. Suffice to say it has not been demonstrated that it is reasonably arguable that grounds for interfering with the exercise of judicial discretion have been established to warrant consideration by the Court of Final Appeal.

25.  Lastly, we note with interest that in his submissions on the unique nature of the NSL, Mr Yuen made reference to an extract in the work of Julian Richards, A Guide to National Security: Threats, Responses, and Strategies (2012 ed) at pages 14 to 17. In that extract, Professor Richards made a number of references to the works of other authors in this field. This goes to demonstrate that overseas learning and the contribution of overseas counsel in this new area of the law in Hong Kong should have a role to play in the development of our own jurisprudence on national security.

26.  For all the above reasons, we refuse to grant leave to the Secretary to appeal to the Court of Final Appeal on any of the questions formulated in the Notice of Motion. It is not the practice of the Court of Appeal to deal with the “or otherwise” limb, we would leave this to the Appeal Committee if the Secretary wishes to renew his application before it.

27.  There is no reason to depart from the usual rule that costs should follow the event. We make an order nisi that the Secretary should pay the applicant’s costs of this application. The assessment of costs will be conducted on paper on a gross sum basis. The applicant is to submit a statement of costs within 14 days, with leave to the Secretary to serve a response within 7 days thereafter.