Next Digital’s Jimmy Lai appeals again after failing in hiring U.K. counsel, case scheduled for 16th April next year

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Timothy Wynn Owen (right) and Jimmy Lai (left).

28th November 2023 – (Hong Kong) In the latest development of the legal case against Jimmy Lai, the founder of Next Digital and media outlet Apple Daily, he has faced another setback in his attempt to hire renowned British lawyer Timothy Wynn Owen K.C., to defend him. The Hong Kong Department of Justice opposed Lai’s decision, and his appeal has been denied by both the Court of First Instance and the Court of Final Appeal.

Following the unsuccessful appeals, the Hong Kong government sought interpretation from the Standing Committee of the National People’s Congress (NPCSC). In December last year, the NPCSC declared that a certificate issued by the Chief Executive should be obtained before addressing the relevant issues. Lai subsequently filed two applications with the High Court. One application challenged the Immigration Department’s refusal to grant Tim Owen a work visa, alleging that it was an abuse of power by the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region. The other application sought a declaratory order from the court stating that the previous court judgments would not be affected by the NPCSC’s interpretation. However, both applications were rejected by the Court of First Instance.

Undeterred, Lai is now appealing the decision and has filed an application with the Court of Appeal for a judicial review of the failed appeal. The appeal hearing has been scheduled for 16th April, 2024, and is expected to last one day.

The proposed respondents in the judicial review are the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Director of Immigration, while the Secretary for Justice is listed as an interested party. Lai’s appeal solely focuses on the judicial review. The judicial institution’s website indicates that the appeal will be heard in the morning at 10am on 16th April, but the presiding judge has not been announced yet.

During the initial trial, Justice Jeremy Poon Shiu-chor pointed out that according to Articles 12 and 14 of the National Security Law, the National Security Commission is under direct supervision and control of the central authorities, and its work is not subject to interference from any other organisation, including the courts. The legislation clearly states that the decisions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region are not subject to judicial review, and the power to supervise the central government is exclusive to the central authorities, with no authority granted to the Hong Kong courts. Moreover, the functions of the National Security Department fall outside the jurisdiction of the local courts, as Hong Kong lacks the relevant training or expertise. Furthermore, the National Security Law prohibits the disclosure of information related to its work, and the disclosure of such information would contravene the purpose of maintaining confidentiality. Therefore, the Hong Kong courts do not have jurisdiction over the work of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region.

Lai argued that if the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region is not subject to judicial review, it would be unconstrained and could potentially abuse its power. However, the judge rebutted this argument, stating that it disregarded the fact that the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region is under the supervision of the central authorities. The judge described Lai’s argument as baseless speculation and fearmongering. As the court did not have jurisdiction over Tim Owen’s handling of the Jimmy Lai case and obtaining the required certificate from the Chief Executive, the involvement of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region was deemed within its powers. In conclusion, the judicial review was deemed unwarranted, and the request for permission was denied.