LAI CHEE YING v. THE COMMITTEE FOR SAFEGUARDING NATIONAL SECURITY OF THE HKSAR AND ANOTHER

CACV 166/2023, [2024] HKCA 400

On appeal from [2023] HKCFI 1382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2023

(ON APPEAL FROM HCAL NO 566 OF 2023)

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REASONS FOR JUDGMENT AND DECISION ON COSTS

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The Court:

1.  On 19 May 2023, Poon CJHC handed down his judgment (“Judgment”)[1] refusing to grant leave to the applicant, Lai Chee Ying, to apply for judicial review against the decision of the Committee for Safeguarding National Security of the Hong Kong SAR on 11 January 2023 (“NSC” and “NSC Decision”) and the decision of the Director of Immigration (“Director” and “Director’s Decision”)[2]. The Chief Judge is satisfied that the intended judicial review against the NSC Decision and the Director’s Decision is “plainly and wholly unarguable”, applying the reasonable arguability test in Peter Po Fun Chan v Winnie CW Cheung (2007) 10 HKCFAR 676 at §§14 to 15[3].

2.  On 3 August 2023, the Chief Judge handed down his decision on costs (“Decision on Costs”)[4]. Although a ‘rolled-up’ hearing was not ordered, the applicant had, in effect, a full substantive hearing of the judicial review challenge[5]. The Chief Judge therefore dealt with costs as if the matter had proceeded at a full inter partes hearing. He took the view that the application for judicial review was “wholly unmeritorious”, he took into account the Department of Justice had issued a letter to the applicant marked “without prejudice save as to costs”, and he agreed with the putative parties, being the NSC and the Director, that the application “should never have been brought”. He exercised his discretion to order the applicant to pay the putative parties’ costs of the proceedings on an indemnity basis[6].

3.  The applicant’s appeal against the refusal to grant leave to apply for judicial review was brought as of right.

4.  We dismissed his appeal at the conclusion of the hearing. These are the reasons of the court.

The background

5.  The relevant background is set out in the Judgment at §§5 to 13 and may be summarised as follows.

6.  On 19 October 2022, the Chief Judge granted the ad hoc admission of Mr Timothy Wynn Owen, KC to represent the applicant in HCCC 51/2022[7]. The appeal by the Secretary for Justice to the Court of Appeal was dismissed on 9 November 2022[8]. The Secretary’s subsequent application for leave to appeal was first refused by the Court of Appeal on 21 November 2022[9] and thereafter by the Appeal Committee of the Court of Final Appeal on 28 November 2022[10]. These judgments will be referred to collectively as “Admission Judgments”.

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

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

8.  The NPCSC then issued this interpretation (“Interpretation”) on 30 December 2022[12]:

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

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

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

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

現予公告。」

9.  Its English translation reads:

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

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

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

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

This Interpretation is hereby announced.”

10.  On 3 May 2022, Mr Owen was issued an employment visa to work as a barrister in another matter, which was extended and remained valid until 14 September 2023. After the Court of Appeal dismissed the appeal by the Secretary for Justice on 9 November 2022, Robertsons, acting for Mr Owen, applied to the Immigration Department on 11 November 2022 for approval to take up a sideline employment under his employment visa to cover the work in respect of HCCC 51/2022, the trial of which was then due to commence on 1 December 2022. The Hong Kong Bar Association issued a practising certificate to Mr Owen on 22 November 2022.

11.  Because of the request by the CE to the NPCSC for an interpretation of the NSL, the prosecution in HCCC 51/2022 sought an adjournment and the trial was adjourned to September 2023. In view of the Interpretation, on 3 January 2023, Robertsons withdrew Mr Owen’s application to the Immigration Department on a without prejudice basis. There is no extant application by Mr Owen for sideline employment approval in relation to HCCC 51/2022 thereafter.

12.  On 11 January 2023, the NSC held a meeting to discuss the implementation of the Interpretation. It is provided in NSL 13 that the CE shall be the chairperson of the NSC and other members shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under NSL 16, the Director, the Commissioner of Customs and Excise, and the Director of CE’s office. NSL 14 and Interpretation §1 further provide that information relating to the work of the NSC is not subject to disclosure.

13.  Following the meeting, a press statement was released by the NSC on 11 January 2023 as follows:

“The Committee stated that:

(1) it will fully fulfil the obligations as stipulated in the contents of the interpretation by the NPCSC, and carry out its duties and functions as prescribed in Article 14 of the National Security Law in accordance with the law, which are:

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

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

(iii) co-ordinating major work and significant operations for safeguarding national security in the HKSAR.

(2) it supports the HKSAR Government to introduce amendments to the Legal Practitioners Ordinance as soon as possible[13], so as to handle the matter concerning the participation of overseas lawyers who are not qualified to practise generally in Hong Kong in cases involving national security issues in an appropriate manner.”

14.  On 17 February 2023, the applicant brought proceedings by originating summons in HCMP 253/2023, seeking a declaration that the Interpretation does not affect the Admission Judgments and other relief. In opposing that application, the Director, who had attended the meeting of the NSC on 11 January 2023, made an affirmation on 20 March 2023. The Director stated that in light of Interpretation §3, the NSC noted that the court had not requested and obtained a certificate from the CE under NSL 47 in granting the ad hoc admission of Mr Owen in relation to HCCC 51/2022. The NSC then made a judgment and decision in relation to Mr Owen’s proposed representation of the applicant in HCCC 51/2022, “catering for the possibility of Mr Owen reapplying to [Immigration Department] for sideline employment approval in relation to the case”[14].

15.  The Director went on to state that without in any way waiving any applicable right or privilege, and solely in order to assist the court in determining the subject proceedings, authorization has been exceptionally given to relay (and only to such extent) the NSC Decision as follows:

“(i) Upon careful consideration of the legislative intent of the NSL, its emphasis on the imperative of effective prevention of acts and activities endangering national security, the overriding and fundamental importance of safeguarding nationality security, the need to take proper measures in preventing all underlying risks, and the circumstances arising from overseas lawyers taking part in cases concerning national security, including that of the Plaintiff in his engagement of Mr Owen as defence counsel in HCCC 51/2022, the NSC has decided that the proposed representation by Mr Owen of the Plaintiff in HCCC 51/2022 concerns national security which is likely to constitute national security risks, and is contrary to the interests of national security.

(ii) The NSC has decided to advise the Director of Immigration that, if a fresh sideline employment approval application in relation to the proposed representation of the Plaintiff in HCCC 51/2022 is received from Mr Owen, such application should be refused in view of the judgement set out in paragraph (i) above.”

16.  The Director further deposed[15]:

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

17.  The aforesaid disclosure of the NSC Decision and the Director’s Decision prompted the applicant to seek leave to apply for judicial review on 11 April 2023. In the Form 86, he sought a declaration that the NSC Decision and the Director’s Decision are ultra vires NSL 14, and an order of certiorari to quash both decisions.

The Judgment

18.  The first and foremost question is whether the NSC Decision is amenable to judicial review.

19.  The Chief Judge held that 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”[16]. As the courts have not been vested with any jurisdiction over the work of the NSC under NSL 14 to begin with, the question of NSL 14 ousting the courts’ supervisory jurisdiction over the NSC simply does not arise[17]. 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 must be refused[18].

20.  Although it is not strictly necessary to deal with the applicant’s case that the NSC Decision was ultra vires NSL 14, the Chief Judge gave his ruling on this as well since this was fully argued. He held that on a proper reading of the Interpretation, which has the same effect as the NSL as at the date when the NSL came into effect, the plain and natural meaning of the language used in the Interpretation can admit of no other conclusion. The NSC Decision lies squarely within the NSC’s power under NSL 14 as interpreted by the Interpretation[19]. There being no separate or independent ground to challenge the Director’s Decision, the making of that decision is undoubtedly a lawful exercise of the Director’s power in discharging his duty for safeguarding national security under the NSL[20].

21.  The Chief Judge therefore held that the intended judicial review against the NSC Decision and the Director’s Decision is plainly and wholly unarguable and accordingly dismissed the leave application.

This appeal

22.  In the supplementary notice of appeal filed on 13 September 2023, the applicant sought to set aside the Judgment and the Decision on Costs, and an order that: (a) leave be granted to apply for judicial review; (b) the application for judicial review be granted; and (c) costs be granted to him.

23.  Four broad grounds of appeal were advanced.

24.  Ground 1 relates to the contention that the Hong Kong courts do have supervisory jurisdiction over the NSC Decision and the Director’s Decision, to ensure that these decisions conform to the principle of legality under the rule of law and hence both decisions are susceptible to judicial review.

25.  In Ground 2, it is contended that the NSC Decision was ultra vires because it did not fall into one of the three prescribed “duties and functions” identified in NSL 14, nor could it be reasonably incidental to performing a duty or function within the common law rule regarding ancillary powers.

26.  Ground 3 seeks to challenge the Chief Judge’s admission of two reports by a jurist on Mainland law[21] adduced by the Secretary for Justice and the putative parties, to assist the court in properly understanding the nature and effect of the Interpretation under Mainland law.

27.  Ground 4 seeks to attack the order for indemnity costs against the applicant.

Ground 1

28.  This is the main ground of appeal.

29.  As this relates to the construction of NSL 14, it is convenient to set out the full terms not just of this provision but also of NSL 12:

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

「第十四條 香港特別行政區維護國家安全委員會的職責為：

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

（二）推進香港特別行政區維護國家安全的法律制度和執行機制建設；

（三）協調香港特別行政區維護國家安全的重點工作和重大行動。

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

30.  The English translation reads:

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

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

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

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

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

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

31.  Mr Dykes, SC’s submissions for the applicant may be summarised as follows:

(1) Before 1997, Hong Kong’s constitutional structure required the application of the common law. The courts were the guardians of the rule of law and had jurisdiction to inquire into the validity of deliberative process in the legislature whether or not it was lawful for the legislature to pass a proposed bill[22].

(2) Section 12(2)(a) of the High Court Ordinance, Cap 4 requires that the civil jurisdiction of the Court of First Instance shall consist of original jurisdiction and authority of a “like nature and extent” as that held and exercised by the High Court of Justice in England.

(3) Article 8 of the Basic Law (“BL”) ensures the continued application of the common law insofar as it is consistent with the BL. The Hong Kong courts interpret and apply the NSL because it is listed in Annex III to the BL.

(4) The NSL accords with the PRC Constitution, the BL and the decision of the NPC on 28 May 2020 on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security[23], see NSL 1. The NSL converges with HKSAR laws but does not import Mainland legal norms. The effect of NSL 1 is to make the NSL provisions amenable to the judicial power of the Hong Kong courts under BL 80[24]. Common law principles are used when interpreting the NSL[25].

(5) Thus, if the NSL confers limited powers and duties, the NPCSC intends the Hong Kong courts to audit decision-making to ensure those limits are not exceeded.

(6) This is consonant with the rule of law which requires, at the minimum, review for jurisdictional error. Jurisdictional review means review for error making a determination a nullity[26]. Correcting legal error is a judicial function, and only the judiciary can exercise judicial power, see BL 80. The right to access a court, which is the guardian of legality, to review the lawfulness of administrative or executive acts is essential to the rule of law. NSL 5 provides: “The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security.”

(7) The court’s ingrained reluctance to countenance the statutory exclusion of judicial review has its genesis in the fact that judicial review is a principal engine of the rule of law[27]. The supervisory jurisdiction ensures that judicial and administrative acts conform to the principle of legality[28]. There is strong interpretative presumption against the exclusion of judicial review other than by “the most clear and explicit words”[29]. The conceptual basis for this is not far to seek: “What would be the purpose of defining by statute the limit of a tribunal’s powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?”[30]  “It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure.”[31] [32]

(8) Where judicial power is allocated to tribunals and other decision-making bodies, there is some scope for limiting judicial review. The presumption against ouster still applies but is not as strong as in cases where there is no judicial input to decision-making[33]. The legal policy reasons that permit attenuated judicial review do not apply to administrative bodies[34].

(9) There are thus two possibilities in interpreting the ouster clause in NSL 14: no recourse to judicial review is possible so errors of the NSC are immune from review and persons affected by its decisions have no recourse to the Hong Kong courts under BL 35[35], or judicial review is not ousted altogether but is permitted in some attenuated form.

(10) The prohibition against ‘interference’ in NSC’s work should not be construed as prohibiting judicial review. Judicial supervision of executive decision-making is not ‘interference’. It is the deployment of judicial power where there has been legal error and is a constitutionally beneficial process. “The courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the court as to what its lawful province is.”[36]

(11) The Chief Judge was wrong to find that supervisory power over the NSC is reserved to the CPG exclusively[37]. The jurisdiction for judicial review can coexist with accountability to the CPG. The NSL entrusts the Hong Kong courts with exercising judicial power over issues arising under it, including the construction of the ouster clause in NSL 14.

(12) NSL 14 prescribes the duties and powers of the NSC. The lawful exercise of these powers depends on the exact performance of NSC’s three listed “duties and functions” in NSL 14. The NSC will exceed its powers if it assumes a fourth function or duty or misconstrues the limits of a prescribed one.

(13) The ouster clause in NSL 14 (“Decisions made by the Committee shall not be amenable to judicial review”) can be construed in two ways without defeating the presumption against ouster clauses. The first is to construe the words “judicial review” in a non-technical way as simply precluding appeal or review in any court but does not prevent the court exercising its jurisdiction to review a decision on the traditional grounds available on an application for judicial review[38]. The second is to construe the words “judicial review” as permitting jurisdictional review, assuming that NPCSC did not intend to create a constitutional anomaly in the NSC in having a purely administrative body with no limits on its jurisdiction.

(14) The Chief Judge did not mention the presumption against ouster clauses in the Judgment. Had he applied the presumption, he would have found that the ouster did not preclude an application for judicial review for at least jurisdictional review.

32.  We have no quarrel with the various common law principles that Mr Dykes referred us to, including the interpretative presumption against ouster clauses. Mr Yuen, SC does not agree with the characterization that the relevant provision in NSL 14 is an ouster clause. He submitted that as the Hong Kong courts have never been conferred with jurisdiction over the NSC and its work, NSL 14 does not oust any jurisdiction of the courts and the relevant provision is not an ouster clause in the correct sense of the expression[39]. He would simply call this a “No judicial review clause” for want of a better description. For present purpose, it is not necessary to enter into this debate whether the relevant provision in NSL 14 is truly an ouster clause. We shall proceed on the premise that it is.

33.  At the outset, it is pertinent to bear in mind two matters.

34.  First, the presumption against ouster clause is a technique in interpretation and is not conclusive, however strong it may be and despite the court’s “ingrained reluctance” to exclude judicial review. If the language used is “most clear and explicit”, it is possible to exclude the judgments and decisions of the NSC from the recourse of judicial review. Mr Dykes does recognise this as a possibility.

35.  Second, in construing NSL 14, it is necessary to read its provisions with the Interpretation, and full effect must be given to it.

36.  The Interpretation was given by the NPCSC on the meaning and application of the provisions of NSL 14 and NSL 47 “in accordance with the provisions of Subparagraph (4) of Article 67 of the Constitution of the People’s Republic of China and [NSL] 65”[40] [41]. The Interpretation, being an interpretation of the meaning and application of NSL 14 and NSL 47, declared what the law has always been[42].

37.  The effect of an interpretation of laws by the NPCSC in exercising its authority under Article 67(4) of the PRC Constitution has been described by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at 222J to 223C, in the context of an interpretation of the BL under BL 158(1), which applies similarly to an interpretation by the NPCSC of the NSL under NSL 65:

“The Standing Committee’s power to interpret the Basic Law is derived from the Chinese Constitution and the Basic Law. In interpreting the Basic Law, the Standing Committee functions under a system which is different from the system in Hong Kong. As has been pointed out, under the Mainland system, legislative interpretation by the Standing Committee can clarify or supplement laws. Where the Standing Committee makes an interpretation of a provision of the Basic Law, whether under art.158(1) which relates to any provision, or under art.158(3) which relates to the excluded provisions, the courts in Hong Kong are bound to follow it. Thus, the authority of the Standing Committee to interpret the Basic Law is fully acknowledged and respected in the Region. This is the effect of the Basic Law implementing the ‘one country, two systems’ principle as was held by the Court in Lau Kong Yung. Both systems being within one country, the Standing Committee’s interpretation made in conformity with art.158 under a different system is binding in and part of the system in the Region.”[43]

38.  The NPCSC has authority under NSL to interpret the provisions of the NSL. Under the civil law system in the Mainland, legislative interpretation by the NPCSC of provisions of the NSL can clarify or supplement the laws. The courts of Hong Kong are bound to follow the Interpretation under the principle of “one country, two systems”.

39.  When NSL 14 is read with the Interpretation, the meaning and effect of the language used in the text is most clear. The legislative intent as expressed in the language is that the NPCSC does not intend to confer jurisdiction on the Hong Kong courts to review any judgment, decision and act of the NSC, including the NSC Decision.

40.  Our reasoning for construing NSL and the Interpretation is as follows:

(1) NSL 14 clearly states that “No institution, organisation or individual in the Region shall interfere with the work of the Committee.”  Interpretation §1 clarifies that “institution” includes “the executive authorities, legislature and judiciary”. Interpretation §1 specifically provides that under NSL 14, the NSC “has the power to make judgements and decisions on the question whether national security is involved” and decisions made by the NSC “are not amenable to judicial review and have enforceable legal effect”.

(2) NSL 14 provides that “Information relating to the work of the Committee shall not be subject to disclosure”. This is repeated in Interpretation §1. This reinforces the rationale that the decisions of the NSC shall not be amenable to judicial review. Given the nature of the work of the NSC, matters of sensitivity may well be involved. Disclosure of such information in the course of proceedings for judicial review would defeat the purpose of the confidentiality requirement[44].

(3) Interpretation §2 spells out the requirements in NSL 47[45], namely that the Hong Kong courts shall “request and obtain” a certificate from the CE to certify whether an act involves national security or whether the relevant evidence involves State secrets when such questions arise in the adjudication of a case concerning an offence endangering national security and the certificate shall be binding on the courts.

(4) Interpretation §3 refers to the CE’s report to the CPG on 28 November 2022 and mentions the view taken in the report, namely that “overseas lawyers not qualified to practise generally in the HKSAR may pose national security risks when serving as defence counsel or legal representatives in cases concerning an offence endangering national security”. §3 goes on to state that the question “whether overseas lawyers not qualified to practise generally in the HKSAR may serve as defence counsel or legal representatives in cases concerning an offence endangering national security” is a question that requires certification under NSL 47, and a certificate from the CE shall be obtained. Importantly, §3 then states “If the courts of the HKSAR have not requested or obtained a certificate on such question from the Chief Executive”, the NSC “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.”

41.  The combined effect of NSL 14 and the Interpretation leaves no room for any doubt or ambiguity. The meaning of the language is not reasonably capable of sustaining any competing alternative interpretation. The court is bound to give effect to the clear meaning of the language of the text.

42.  Mr Dykes sought to argue the words “shall perform its statutory duties and functions in accordance with the provisions of [NSL 14]” in Interpretation §3 may be construed to mean that the duties and functions envisaged to be performed by the NSC must be confined to the three duties and functions as listed in NSL 14. This is not a proper reading of the last part of Interpretation §3. The “statutory duties and functions in accordance with the provisions of [NSL 14]” of the NSC, as clearly spelled out, are to “make relevant judgements and decisions on such situation and question” where the courts have not requested or obtained a certificate from the CE under NSL 47.

43.  Reading NSL 14 with the Interpretation, there is no justification to construe the provisions in NSL 14 as restricting the performance of the NSC to the three listed “duties and functions”, as submitted by Mr Dykes. By the Interpretation, which is a legislative interpretation of the NPCSC that can clarify or supplement laws, the statutory duties and functions of the NSC under NSL 14 are clarified to cover the making of “relevant judgements and decisions on such situation and question”, namely, where there is a question that requires CE certification under NSL 47 and the courts have not requested or obtained a certificate from the CE.

44.  We do not see any basis to construe the words “not amenable to judicial review” in NSL 14 and Interpretation §1 in the contrived manner suggested by Mr Dykes, in his attempt to cut down the meaning of a well-known concept and remedy for the purpose of construing NSL 14.

45.  The Chief Judge has approached the question whether the NSC Decision is amenable to judicial review from a constitutional perspective (that safeguarding national security is beyond the limits of HKSAR’s autonomy and within the exclusive purview of the CPG such that supervisory power over the NSC is reserved to the CPG solely)[46]. This is supported and expanded by Mr Yuen in his submissions before us. We do not find it necessary to go down this route, in view of the clear meaning and effect of NSL 14 on the basis of construction.

46.  For the above reasons, we reject the contentions of the applicant in Ground 1. We agree with the Judgment that the NSC Decision and the Director’s Decision are not amenable to judicial review. On this basis, the appeal against the Judgment must be dismissed.

Ground 2

47.  In light of our conclusion that the decisions are not amenable to judicial review, there is no need to deal with Ground 2 which raises the contention that the NSC Decision was ultra vires.

Ground 3

48.  Ground 3, which seeks to challenge the admission of expert evidence on Mainland law, is of little moment to this appeal. That said, we do not think expert evidence is warranted in this instance, in view of the clear language of the provisions to be construed, and which the court can construe without reference to expert opinion. As for the impact or effect of an interpretation of laws by the NPCSC under the Mainland system, this has been fully explained by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen and expert evidence on this is unnecessary.

Ground 4

49.  This seeks to challenge the exercise of judicial discretion on costs in that the applicant was ordered to bear costs on an indemnity basis.

50.  The Chief Judge awarded indemnity costs for the reasons as summarised earlier. We cannot say his decision was wrong in principle or plainly wrong. That this court might not have exercised the discretion the same way is irrelevant.

51.  Mr Dykes submitted that the Chief Judge failed to consider the presumption against ouster of judicial review. We do not know what emphasis was given to the presumption by the applicant’s former counsel in the submissions below. We can see why the Chief Judge did not mention the presumption against ouster clauses in the Judgment, as he has taken the view that the courts have not been vested with any jurisdiction over the work of the NSC to begin with so there was no ousting of jurisdiction.

52.  On established grounds for appellate intervention regarding the exercise of discretion, we see no basis to disturb the Chief Judge’s exercise of discretion to award costs on a higher basis.

Costs of the appeal

53.  We have heard arguments on costs. There is no dispute that costs should follow the event. The only contention is whether costs should be awarded against the applicant on an indemnity basis, as sought by Mr Yuen.

54.  Notwithstanding that indemnity costs were ordered below, we have a discretion to exercise whether we should follow suit on appeal. We decline to exercise our discretion to award indemnity costs. There is a different focus and emphasis in the arguments advanced on appeal by Mr Dykes. We cannot say it is unreasonable for the applicant to pursue this appeal to seek a ruling on the presumption against ouster clauses, even though the ruling is against him in the end.

55.  We order the applicant to pay the costs of the putative respondents and the interested party in this appeal on a party and party basis, with a certificate for two counsel.