Introduction
Background
Final ruling (determination)
Comment
In Re Owen KC,(1) the Appeal Committee of the Court of Final Appeal dismissed the Secretary for Justice's application for permission to appeal a judgment of the Court of Appeal, which in turn dismissed an appeal against a decision of the Chief Judge allowing the ad hoc admission of a leading overseas King's Counsel – the admission was for the purpose of representing a defendant at a high-profile criminal trial in Hong Kong. The Secretary for Justice's application in such circumstances is unprecedented. Re Owen KC is the first application for ad hoc admission in Hong Kong with respect to a case involving the National Security Law (NSL). At the time of writing, it appears that the Hong Kong Special Administrative Region (SAR) government will invite the relevant authority in mainland China to interpret the NSL to prevent overseas lawyers who are not qualified in Hong Kong from participating in NSL cases.
Mr Owen KC (the applicant) applied for permission to the Chief Judge of the High Court to be admitted in Hong Kong to represent a defendant at a high-profile criminal trial listed to commence on 1 December 2022. Applications for ad hoc admission are made pursuant to section 27(4) of the Legal Practitioners Ordinance (Cap 159) and are a matter for the discretion of the High Court – that discretion is exercised according to established common law principles, with the public interest being paramount.
For the background to Re Owen KC, see "Important appeal ruling on ad hoc admission of overseas advocates". Briefly, the Chief Judge (sitting at first instance) allowed the application on the basis that it was in the public interest and satisfied the general principles for admission of an overseas advocate – in short, the criminal case was unusually difficult or complex and the legal issues involved impacted substantially on the development of local law, to which the applicant could add a significant dimension.(2)
All the parties in Re Owen KC (the applicant, the Secretary for Justice and the Bar Association) accepted that the Secretary for Justice's appeal to the Court of Appeal involved a review of a first-instance court's exercise of discretion in applying aspects of the public interest. The Court of Appeal (comprising three senior appeal judges) dismissed the appeal.(3)
The Court of Appeal subsequently refused the Secretary for Justice's application for permission to appeal to the Court of Final Appeal (CFA).(4) That application was based on fundamentally different grounds to the substantive appeal. In the substantive appeal, the Secretary for Justice's main argument was (in effect) that the "unique context" of the NSL should take precedence over other aspects of the public interest or be of primary importance in the admission of overseas advocates.(5) In the application (to the Court of Appeal) for permission to appeal to the CFA, the Secretary for Justice appears to have challenged established principles for admission of overseas advocates by arguing that there should (in effect) be a blanket ban on such admissions in cases involving national security, save for exceptional circumstances (which were not defined).
On 22 November 2022, the Secretary for Justice renewed his application for permission to appeal to the CFA and that application was heard by the CFA Appeal Committee on 25 November 2022, on an urgent basis. The Appeal Committee comprised the Chief Justice and two permanent judges of the CFA. In essence, the grounds of appeal were a repeat of the submission that a "radically different approach" to admission of overseas advocates should be adopted for NSL cases.(6)
The Appeal Committee held that the Secretary for Justice had not made out a proper case for the grant of permission for a final appeal "in respect of the radically new points he seeks to advance".(7)
Applying established principles of appeal practice, the Appeal Committee held that the Secretary for Justice should not be allowed to proceed with radically new issues on a final appeal (notwithstanding their obvious importance) where those issues had not been mentioned or explored in the courts below. The Appeal Committee stressed that its ruling was based on this ground alone and was entirely case specific. In those circumstances, the Appeal Committee did not consider that it needed to consider any other issues arising out of the proceedings before the Court of Appeal.
Two important passages are worth highlighting. The Appeal Committee noted that it had not been suggested that the criminal trial, for which the applicant sought admission, involved "[s]tate secrets and other confidential information".(8) Had it been otherwise, the Appeal Committee recognised "that would obviously be a highly important, and possibly crucial factor which the Court would be bound to take into account in the exercise of its discretion".(9)
The Appeal Committee also noted that:
The courts of the HKSAR are of course fully committed to safeguarding national security and to acting effectively to prevent, suppress and impose punishment for any act or activity endangering national security as required by NSL [article] 3. That duty would unfailingly be carried out whenever national security issues are properly raised and duly explored, enabling the courts to undertake a proper adjudication of those issues. Thus, in relation to ad hoc admissions, where national security considerations properly arise, such considerations are plainly of the highest importance to be taken into account.(10)
The Appeal Committee's decision has received much media attention. Soon after the decision there were reports that the Chief Executive of the Hong Kong SAR and the Committee for Safeguarding National Security of the Hong Kong SAR would invite the Standing Committee of the National People's Congress to interpret the NSL, as regards (in effect) the participation of overseas lawyers in cases involving offences of endangering national security.
The legal framework for an extra-judicial route to interpretation is provided for in the NSL itself (for example, articles 62 and 65). The existence of such a power does not necessarily mean that it should be used. For example, matters could be left to the courts rather than seeking to limit their discretion in matters of admission of overseas advocates with respect to national security cases. As the above passages from the Appeal Committee's ruling suggest, national security considerations would be of the highest importance in the exercise of the High Court's first-instance discretion. Given the circumstances, these comments are as significant as if they had been made by the CFA on a substantive appeal – they are deliberate guidance from Hong Kong's most senior judges to the Hong Kong courts.
If there is to be a legislative solution to address the government's concerns with respect to national security cases, another way would be to amend section 27(4) of the Legal Practitioners Ordinance – namely, to provide for a national security exception with respect to the High Court's discretion in matters of admission of overseas advocates.
For further information on this topic please contact David Smyth, Antony Sassi or Warren Ganesh at RPC by telephone (+852 2216 7000) or email ([email protected], [email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
Endnotes
(1) [2022] HKCFA 23, FAMV No. 591 of 2022, 28 November 2022.
(2) [2022] HKCFI 3233, 19 October 2022.
(3) [2022] HKCA 1689, 9 November 2022.
(4) [2022] HKCA 1751, 21 November 2022.
(6) Supra note 1, at para 16, together with an "or otherwise" limb for a final civil appeal (section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484).