Important appellate decision on the ad hoc admission of overseas lawyers – Commentary | Tech US News

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Introduction
Background
Conviction
Comment

Introduction

inside Owen KC,(1) The Court of Appeal dismissed an appeal against a High Court chief justice’s decision to grant ad hoc permission to a leading overseas crown counsel to represent a defendant in a high-profile criminal trial in Hong Kong. The upcoming trial is the first prosecution in the High Court for an alleged conspiracy to conspire with a foreign country or external elements to endanger national security in contravention of section 29(4) of the National Security Act (NSA). Appeals in matters relating to ad hoc admission are rare. However, in Owen KC The Justice Secretary saw fit to appeal the Chief Justice’s decision. The Court of Appeal’s judgment dismissing the appeal is a welcome and firm defense of the legal principles governing the ad hoc admission of overseas lawyers in Hong Kong, with the public interest paramount.

Background

Applications for the ad hoc admission of overseas lawyers in Hong Kong are governed by Article 27(4) of the Lawyers Ordinance (Cap. 159). The High Court has an unfettered discretion in such matters which is exercised in accordance with well-settled principles. Successful applicants (such as applicant v Owen KC) are usually distinguished royal advisers based in the United Kingdom. In short, applications for ad hoc admission in Hong Kong should be considered for unusually difficult or complex cases where the legal issues involved significantly affect the development of local law. The applicant’s expertise and experience should also be such that they can add a significant dimension to the legal proceedings for which ad hoc admission is sought.

inside Owen KC the applicant has sought permission from the Chief Justice of the High Court (sitting at first instance) to represent the defendant (the former owner of the newspaper) in the high-profile criminal trial, which is expected to begin on 1 December 2022 and last approximately 30 days. Among the charges facing the defendant is a charge of alleged conspiracy to conspire with a foreign country or external elements to endanger national security in violation of Article 29(4) of the NSL. The charge is the first of its kind to be heard in the High Court.

The Bar Association and the Secretary of Justice opposed the application. The role of the Minister of Justice in such matters is to act as a guardian of the public interest. It is worth noting that applications for ad hoc admission are usually decided by the Chief Justice, who is the most senior judge of the High Court of Hong Kong (namely the Court of First Instance and the Court of Appeal) – although the Chief Justice rules as a trial judge.

The Chief Justice granted the application applying well-settled principles. (2) In particular, the Chief Justice recognized the very difficult and delicate task of balancing the need to protect national security with fundamental liberties such as freedom of expression. The appellant’s reputation as a leading foreign counsel and expert in criminal, administrative and human rights law was not in question.

The trial court’s decision would normally be final in ad hoc adoption cases, and appeals are rare. (3) However, in this case the Minister of Justice appealed the decision of the Chief Justice. The Court of Appeal dealt with the appeal in an expedited procedure based on the imminent trial date based on written legal applications (without a physical hearing).

On appeal it was accepted that the Court of Appeal’s role was that of review and that it could only exercise its discretion again where the Chief Justice had (for example) misapplied his discretion – it was not enough for the Court of Appeal to exercise his discretion differently in the application of legal principles regarding the ad hoc admission of overseas lawyers.

The focus of the Justice Minister’s appeal was whether the Chief Justice considered matters that he should not have done or failed to consider matters that he should have done. In particular, the legal representatives of the Minister of Justice proposed three grounds of appeal:

  • The Chief Justice did not consider the unique nature of the NSL as a national law applicable to Hong Kong in the context of its unique constitutional framework.
  • Legal challenges to the constitutionality of a statutory provision, such as the prosecution’s second charge (alleged seditious publications), involved well-established legal principles, and local attorneys had extensive experience conducting such challenges.
  • The mere possibility that appeals could be made on issues arising from the construction of Article 29(4) of the ZNS and the constitutionality of the Act in relation to the second charge should not be relevant if it was not known whether there would be reasonably arguable issues.

In short, the appeal appears to have focused on whether the Chief Justice failed to give sufficient weight to the nature of the NSL when exercising his discretion and considering the various aspects of the public interest in relation to the application for ad hoc admission.

Conviction

The Court of Appeal (consisting of three senior appeal judges) dismissed the Justice Secretary’s appeal. It held that none of the grounds of appeal had merit and that there was no reason to interfere with the exercise of the Chief Justice’s discretion. For good measure, the Court of Appeal stated that if it exercised its discretion again (which it did not), it would have reached the same decision as the Chief Justice.

The unique context of NSL
This aspect of the appeal can best be summed up by a quote from the judgment:

The unique context of NSL is of course an important factor relevant to the exercise of discretion. However, we disagree with Mr. Yu [Counsel for the Secretary for Justice] that the unique context of the NSL should take precedence over other aspects of the public interest or be essential in the ad hoc admission of overseas consultants. If this approach were taken to its logical conclusion, it would follow that foreign lawyers should generally not be accepted in NSL cases. We believe that these unique features of NSL, which Mr. Yu urges us to, are not sufficient to demonstrate that such an approach would best meet the public interest in the current situation, leaving the other aspects of public interest irrelevant..(4)

Given the importance and difficulty of weighing the conflicting public interests at the upcoming trial (namely the protection of national security and the protection of freedom of expression), the Court of Appeal was not convinced that the applicant would not be able to add an important dimension to the trial, given his extensive professional knowledge and experience. (5) )

Constitutionality of laws
The Court of Appeal dealt with this aspect of the appeal briefly. The Court of Appeal held that the Chief Justice was right to conclude as he did in view of the complexity of the legal questions which required decision in the criminal proceedings.

Possibility of appeal due to criminal proceedings
The Chief Justice considered this aspect of the upcoming trial to be a “strong factor” in favor of the applicant’s ad hoc admission. (6) In accordance with legal principles, the Court of Appeal saw no reason to disagree. (7)

Comment

The Court of Appeal’s ruling attracted the attention of the local media. (8) This included some rather unfortunate criticisms—for example, the obvious question of how a “foreign lawyer” could contribute to local NSL jurisprudence. Such criticism misunderstands the legal principles applicable to applications for the ad hoc admission of overseas lawyers and the role of courts (particularly appellate courts) in the development of national security jurisprudence. As the Court of Appeal stated:

In the early days of the NSL, it is vital that our jurisprudence develops on a solid foundation that reflects respect for the rule of law in accordance with internationally accepted judicial standards. It is clear that it would be in the public interest for eminent lawyers to participate in the development of our judicial practice in the NSL.(9)

As is often the case, it is better if this jurisprudence is developed before the trial courts rather than delayed pending appeal.

On a reassuring note that will not go unnoticed in the local community and beyond, and which is fitting to end on, the Court of Appeal concluded:

We would add this. The upcoming criminal trial is a high-profile case that is attracting a lot of attention at home and abroad. It includes the resolution of legal issues of great general public importance, which would have a significant impact on the development of NSL jurisprudence and crimes of rebellion. Public perception of the fairness of a trial is essential to the administration of justice. The court must adopt a flexible and reasonable approach to reach a decision that would best serve the public interest in this role. It is clear that it is in the public interest to grant the application for admission based on public perception and the other considerations that have been addressed.(10)

For further information on this topic, please contact Antony Sassi, David Smyth or Warren Ganesh at RPC by phone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.

Final remarks

(1) [2022] HKCA 1689, 9 November 2022.

(2) [2022] HKCFI 3233, 19 October 2022.

(3) For example, Re Mably [2014] 1 HKLRD 627; Re Simpson QC [2021] HKCA 22, [2021] HKCA 450 in [2021] HKCFA 25.

(4) Supra note 1, at paragraph 36.

(5) Supra note 1, at paragraph 43.

(6) Supra note 2, at paragraph 19.

(7) Supra note 1, at paragraphs 49-50.

(8) For example, South China Morning PostNovember 10, 2022 and Sunday Morning Post13 November 2022 (article titled “Decision to allow top UK barrister to defend Lai welcome move”, by Cliff Buddle).

(9) Supra note 1, at paragraph 45.

(10) Supra note 1, at paragraph 51.

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