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Re Mr Timothy Wynn Owen Kc

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 November 2022
Neutral Citation[2022] HKCA 1689
Citation[2022] 5 HKLRD 726
Year2022
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV425/2022
CACV425/2022 RE MR TIMOTHY WYNN OWEN KC

CACV 425/2022

[2022] HKCA 1689

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)

________________________

IN THE MATTER of an application by Mr Timothy Wynn OWEN KC, to be approved, admitted and enrolled as a Barrister of the High Court of the Hong Kong Special Administrative Region for the purpose of a particular case
and
IN THE MATTER of section 27 of the Legal Practitioners Ordinance, Cap 159
and
IN THE MATTER of the High Court Criminal Case No HCCC 51/2022

________________________

Before: Hon Kwan VP, Chu VP and Au JA in Court

Dates of Written Submissions: 28 and 31 October 2022, 2 and 3 November 2022

Date of Judgment: 9 November 2022

________________________

J U D G M E N T

________________________

This Court:

Introduction

1. On 19 October 2022, the Chief Judge of the High Court handed down his judgment (“Judgment”)[1] granting the ad hoc admission of Mr Timothy Owen, KC to represent Mr Lai Chee Ying in his trial in HCCC 51/2022. Mr Lai founded Next Digital Limited and the newspaper “Apple Daily”, which was widely circulated in Hong Kong until it ceased publication as from 24 June 2021. The trading of the shares of Next Digital Limited on the Hong Kong Stock Exchange has been suspended since 16 June 2021.

2. Mr Lai, Apple Daily Limited, Apple Daily Printing Limited and AD Internet Limited are the four defendants in the trial[2]. All four defendants are charged with one count of conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200 (“CO”). The other three charges concern conspiracies to collude with a foreign country or external elements to endanger national security, contrary to article 29(4) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). One of the three charges is brought against all four defendants, the other two are brought against Mr Lai solely. In gist, the prosecution alleges that:

(1) Mr Lai, either in his own personal capacity or through Apple Daily, has published or reproduced seditious publications and conspired with or requested a foreign country or external elements to endanger national security by imposing sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China; and

(2) Mr Lai was involved in directing and/or financing a group called “Fight for Freedom Stand with Hong Kong” in its activities of advocating and soliciting foreign countries, bodies or individuals to endanger national security.

3. This is the first prosecution brought under NSL 29(4) to be tried by the Court of First Instance before a panel of three designated judges. It is provided in NSL 29 that a person who commits an offence of a grave nature under this article shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years. The prosecution has attracted substantial publicity and extensive media coverage, locally and internationally. The trial will commence on 1 December 2022 and is scheduled to last till late January 2023 with a one week break for the public holidays. Mr Lai is represented by a team of three counsel led by Mr Robert Pang, SC.

4. In early August 2022, before the trial dates were fixed without accommodating counsel’s diaries[3], Mr Lai with his solicitors had decided to engage Mr Owen to lead the local team of counsel. Mr Owen is a renowned specialist in criminal, public and human rights law, with substantial experience in cases concerning national security and freedom of speech. He has a wealth of experience in different jurisdictions and has appeared before the courts of Hong Kong in quite a few important cases.

5. Mr Lai’s solicitors sought consent for Mr Owen’s admission to the Hong Kong Bar from the Secretary for Justice and the Bar Council. Both refused to give consent and opposed the application for admission, which was dealt with by the Chief Judge on the basis of written submissions.

The Judgment

6. According to the Junior Counsel’s Certificate filed in support of the application, the trial would involve these novel legal aspects concerning the offence under NSL 29(4):

(1) what is the actus reus and mens rea of such an offence;

(2) whether Mr Lai’s acts can amount to acts involving a “request” under NSL 29(4), and in particular, to what extent an article of commentary or interview with public figures which addresses matters of national security or recites certain comments from other persons constitutes a “request”;

(3) the potential over-breadth of NSL 29(4), particularly in light of the matters stated above; and

(4) the proper approach to construing the reach of NSL 29(4) in light of the inter-relationship between NSL 62 (stating that the NSL shall prevail where provisions of local laws are inconsistent with the NSL) and (a) NSL 4 which requires that human rights (as guaranteed by the Basic Law (“BL”) and the International Covenant on Civil and Political Rights (“ICCPR”)) including the freedom of expression, shall be protected in safeguarding national security; and (b) NSL 5 which states that the principle of the rule of law shall be adhered to in preventing, suppressing and imposing punishment for offences endangering national security.

7. Another issue of importance identified in the Junior Counsel’s Certificate involves the constitutionality of sections 9 and 10 of the CO, namely, whether those provisions are (a) in accordance with the law; and (b) a proportionate restriction to the freedom of expression guaranteed by BL 27 and article 16 of the Hong Kong Bill of Rights (“BOR”).

8. The application for admission was made on five main grounds. For present purpose, it is necessary to mention only three of them:

(1) the present case is of unusual difficulty and complexity in respect of the legal issues and principles involved;

(2) it involves the resolution of legal issues of great and general importance that would impact substantially on the development of local laws; and

(3) Mr Owen would add a significant dimension and contribute significantly to the case by reason of his experience and expertise.

9. The Secretary for Justice and the Bar Council accepted that the issues that would arise at the trial are of great general and public importance and that Mr Owen is of high standing but disputed that the issues involved are of unusual difficulty or complexity or that Mr Owen would add a significant dimension to the trial. The Chief Judge took the view that the above three grounds are all established. His reasoning is as follows.

10. The critical question that would arise is how to delineate the scope of an offence under NSL 29(4) against the specific context of the freedom of expression. Although there is general guidance from the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 that the construction exercise is to be guided by the purposive and contextual approach and the legislative intention of the NSL, the trial “will most probably involve an in-depth and rigorous analysis of the intricate interplay between national security and the constitutional right to the freedom of expression, to ensure that a proportionate balance is drawn for safeguarding national security on the one hand and protecting the freedom of expression on the other”. In the event that novel points should arise (this being the first prosecution under NSL 29(4) heard by the Court of First Instance), it may entail “a thorough study and consideration of comparable international jurisprudence such as cases decided by the European Court of Human Rights”. The Chief Judge regards the construction exercise to be of unusual difficulty – in terms of legal analysis, how to balance the competing public interests of safeguarding national security and protecting the freedom of expression is “extremely difficult and delicate”; in terms of fact, it requires a very close scrutiny of the voluminous evidence to see if any of the NSL 29(4) charges against Mr Lai is made out[4].

11. As for the constitutionality of sections 9 and 10 of the CO, that issue has yet to be determined by the Court of First Instance or above. Although the principle of legality and the proportionality test are well established, the analysis and determination involved is “by no means simple or straightforward”, and the court will most likely need to consult the developments in other common law jurisdictions where nearly identical offence of sedition had been trimmed or even repealed in deciding if, within our legal framework, the two sections are constitutional in light of the rights provisions in BL 27, BL 39 and BOR 16. The Chief Judge thinks this exercise is of unusual difficulty and will certainly produce great jurisprudential value to the development of local laws on the subject[5].

12. The Chief Judge also noted that the issues arising from the construction of NSL 29(4) and the constitutionality of sections 9 and 10 of the CO will most likely go further to the Court of Appeal and even the Court of Final Appeal, and this is also a powerful factor in favour of admission[6].

13. He concluded it is “clearly in the public interest” to admit an overseas specialist as eminent as Mr Owen so that the court will have the best assistance to tackle the formidable task at hand in the trial. He rejected the contention that Mr Owen would not add a significant dimension to the trial.

This appeal

14. This appeal is brought by the Secretary for Justice and is dealt with on paper on an...

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