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July 6, 2024

The Witness: Claiming that the National Security Committee’s recommendation to deny Tim Owen a visa exceeded its authority, Jimmy Lai appeals to the Court of Final Appeal. The Court of Appeal refuses to issue a certificate

Jimmy Lai, the founder of Next Digital, was charged with “conspiring to collude with foreign forces.” In October 2022, the High Court approved the hiring of British barrister Tim Owen to defend him in Hong Kong. After the Department of Justice’s appeal failed, the Standing Committee of the National People’s Congress interpreted the National Security Law, stating that the court should obtain a certificate issued by the Chief Executive before approving the appointment of overseas lawyers in national security cases.

In 2023, Jimmy Lai filed for judicial review, challenging the National Security Committee’s recommendation that the Immigration Department deny Tim Owen a visa, alleging that the committee exceeded its authority. The High Court dismissed his application for permission, and his subsequent appeal was also rejected. Lai had earlier applied to appeal to the Court of Final Appeal, and on Friday (5th), the Court of Appeal issued a judgment refusing the application, reaffirming that decisions of the National Security Committee are not subject to judicial review challenges.

According to the law, an appellant can apply to the Court of Appeal for a certificate to appeal to the Court of Final Appeal. If the Court of Appeal refuses to issue it, the appellant can still directly apply to the Appeal Committee of the Court of Final Appeal for both the certificate and the appeal permission.

Jimmy Lai’s side presented three significant and broadly important legal points:

1. Are all decisions made by the National Security Committee under Article 14 of the National Security Law not subject to judicial review?

2. Did the interpretation by the National People’s Congress on December 30, 2022, expand the statutory duties and functions of the National Security Committee under Article 14 of the National Security Law?

3. Did the National Security Committee’s decisions exceed its authority?

According to Article 14 of the National Security Law, the work of the National Security Committee is not to be interfered with by “any other institution, organization, or individual” in Hong Kong, and its decisions are not subject to judicial review. The NPC’s interpretation also specifies that “institutions” include any administrative, legislative, and judicial bodies.

Judgment: The National Security Law and its interpretation must be read together

The legislative intent is “clearest”

Vice-Presidents of the Court of Appeal of the High Court, Susan Kwan Shuk-hing, Carlye Chu Fun-ling, and Judge Thomas Au Hing-cheung ruled, regarding whether the decisions of the National Security Committee are not subject to judicial review, the Court of Appeal indicated that, as mentioned in a previous judgment, Article 14 of the National Security Law must be read together with the interpretation by the Standing Committee of the NPC. The expressed legislative intent is the “clearest,” and the courts must give effect to the clear meaning of the text.

Lai’s side questioned whether, regardless of how clear the “ouster clause” is, it cannot exclude judicial jurisdiction. The judgment stated that this argument was already raised during the appeal and described as a misreading, reaffirming that decisions of the National Security Committee are not subject to judicial review.

Judgment: Hong Kong courts must follow the interpretation

After dismissing this argument, the judgment stated that the remaining two points are irrlevant. In simple terms, the Court of Appeal believed that whether the interpretation expands the statutory duties and functions of the National Security Committee under Article 14 of the National Security Law or not, it does not advance the applicant’s case at all, emphasizing that the NPC interpretation can clarify or supplement the law, which Hong Kong courts must follow.

The judgment further stated that, according to Article 14 of the National Security Law and the NPC interpretation, decisions of the National Security Committee are not subject to judicial review challenges, thus there is no need to consider the issue of overreach. The Court of Appeal believed that the three legal points had no reasonable grounds for argument and ultimately refused Lai’s application.

Court orders Lai to pay legal costs

Regarding the appeal for legal costs, the Court of Appeal stated that Lai’s arguments for appealing to the Court of Final Appeal were completely unfounded and unreasonable, “We can exercise our discretion to award indemnity costs to mark our disapproval of unreasonable litigation conduct,” and ordered Lai to pay legal costs.

The Court of Appeal further stated that the Department of Justice used a 4-page document to explain why decisions of the National Security Committee are constitutionally not subject to judicial review, describing it as “unreasonably spending time on unnecessary matters,” thus deducting over HK $40,000  in legal costs from Lai.

The Witness

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