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Lai Chee-ying v Secretary For Justice

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date19 May 2023
Neutral Citation[2023] HKCFI 1382
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP253/2023
Year2023
HCMP253/2023 LAI CHEE-YING v. SECRETARY FOR JUSTICE

HCMP 253/2023 and HCAL 566/2023
(Heard Together)

[2023] HKCFI 1382

HCMP 253/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 253 OF 2023

____________________

IN THE MATTER of Order 28, rule 2 of the Rules of the High Court, Cap 4A
and
IN THE MATTER of the High Court Criminal Case No 51 of 2022
and
IN THE MATTER of the Interpretation by the Standing Committee of the National People’s Congress of Articles 14 and 47 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region made on 30 December 2022

__________________

BETWEEN
LAI CHEE-YING Plaintiff
and
SECRETARY FOR JUSTICE Defendant

__________________

AND

HCAL 566/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 566 OF 2023

__________________

BETWEEN
LAI CHEE-YING Applicant
and
THE COMMITTEE FOR SAFEGUARDING 1st Putative
NATIONAL SECURITY OF THE HKSAR Respondent
DIRECTOR OF IMMIGRATION 2nd Putative
Respondent
and
SECRETARY FOR JUSTICE Putative
Interested Party

____________________

(Heard Together)

Before: Hon Poon CJHC in Court
Date of Hearing: 28 April 2023
Date of Judgment: 19 May 2023

_________________

J U D G M E N T

_________________

A. Introduction

1. Before the Court are two sets of proceedings brought by the applicant, Mr Lai Chee Ying (“the applicant”).

2. In HCMP 253/2023 (“OS Proceedings”),[1] the applicant seeks (1) a declaration that the Interpretation by the Standing Committee of the National People’s Congress (“NPCSC”) of Articles 14 and 47 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region made on 30 December 2022 (“the Interpretation”[2]) does not affect judgments previously rendered by this Court on 19 October 2022,[3] the Court of Appeal on 9 November 2022[4] and the Appeal Committee of the Court of Final Appeal on 28 November 2022;[5] (2) alternatively, an order for the Court to request and obtain a certificate from the Chief Executive under NSL 47 on the following questions:

(a) Whether Mr Timothy Wynn Owen KC, who has been approved, admitted, and enrolled as a barrister of the High Court for the purposes of advising the applicant in HCCC 51/2022, including all hearings ancillary or in relation thereto, by an order dated 19 October 2022 in HCMP 1402/2022 (as affirmed by the Court of Appeal in CACV 425/2022), serving as defence counsel or legal representative for the applicant in HCCC 51/2022 involves national security; and

(b) Whether any other overseas lawyer who is not qualified to practise generally in Hong Kong serving as defence counsel or legal representative for the applicant in HCCC 51/2022 involves national security.

It is opposed by the Secretary for Justice as the defendant on the ground, inter alia, that it is academic.

3. In HCAL 566/2023 (“JR Proceedings”),[6] the applicant seeks a declaration that the Judgment and Decision of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (“NSC”) dated 11 January 2023 “catering for the possibility of” Mr Owen re-applying for sideline employment that his proposed representation of the applicant in HCCC 51/2022 “concerns national security which is likely to constitute national security risks, and is contrary to the interests of national security” (“the NSC Decision”); and the Decision of the Director of Immigration (“the Director”) that in the event of a re-application by Mr Owen for sideline employment approval in relation to HCCC 51/2022, such application shall be refused (“the Director’s Decision”), are ultra vires NSL 14; and an order of certiorari to quash the Decisions. The applicant further asks for an oral hearing of the leave application under Order 53 rule 3(3) of the Rules of the High Court[7] in the event of the Court being minded to refuse leave on the papers. It is opposed by the NSC and the Director as the putative respondents and the Secretary for Justice as the putative interested party (collectively “the Putative Parties”) on the ground that pursuant to NSL 14, which provides that the work of the NSC shall not be amenable to judicial review,[8] as reiterated in paragraph 1 of the Interpretation, the NSC Decision is not subject to judicial review; or alternatively that the Decisions are not ultra vires NSL 14.

4. Pursuant to my direction, which effectively reflected the parties’ consensus on account of the significant overlap of issues involved, the substantive hearing in the OS Proceedings and the oral hearing of the leave application in the JR Proceedings were heard together on 28 April 2023. I now hand down my judgment for both sets of Proceedings.

B. Background

B1. Admission Judgments

5. In HCCC 51/2022,[9] the applicant faces four charges involving a conspiracy in relation to seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance;[10] and conspiracies to collude with a foreign country or external elements to endanger national security, contrary to NSL 29(4). On 19 October 2022, this Court in HCMP 1402/2022 granted the ad hoc admission of Mr Owen to represent the applicant under section 27(4) of the Legal Practitioners Ordinance.[11] The appeal by the Secretary for Justice to the Court of Appeal was dismissed on 9 November 2022 in CACV 425/2022. The Secretary’s subsequent application for leave to appeal was first refused by the Court of Appeal on 21 November 2022[12] and thereafter by the Appeal Committee on 28 November 2022. For present purposes, these judgments will be referred to as “Admission Judgments” collectively below.

B2. The Interpretation

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

“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?”

7. On 30 December 2022, the NPCSC issued the Interpretation:

「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。」

Its English translation reads:

“At its 38th 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...

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