Counsel of choice

February 01, 2023 09:51
Photo: Reuters

One critically important element in Hong Kong’s Basic Law is expressed in Article 12 (1) ‘that any person under investigation for the commission of an offence shall have the right to…have competent and independent counsel preferably of his own choice’.

Recently, this right was upheld at every level of Hong Kong’s judiciary, despite the specious arguments advanced on behalf of the Secretary for Justice.

The current Hong Kong administration and some of its less intellectually gifted Greek chorus have taken the view that this basic right must be qualified, and overseas counsel barred from defending in cases involving alleged infraction of National Security Law.

Faced with the Court of Final Appeal’s decision, in a spiteful gesture reminiscent of David Beckham kicking his Argentine opponent, the Director of Immigration refused to extend Timothy Owen KC’s visa.

The Administration bridled at this show of judicial independence and asked China’s National People's Congress Standing Committee (NPCSC) to ‘re-interpret’ the law.

This was a remarkably ill-informed step, since only the Basic Law can be interpreted, whereas the National Security Law can simply be amended.

Adroitly, the NPCSC tossed the hot potato back to the Chief Executive to decide and if he cannot, then it goes to the city’s National Security Committee.

The problem, as viewed from an international perspective, is that this does undermine the independence of Hong Kong’s judiciary which, in turn, diminishes the perception of the S.A.R’s legal standing.

But, as ‘Sporting Life’ said in ‘Porgy and Bess’ “It ain’t necessarily so.”

The Administration of the S.A.R., could earn considerable kudos by a relatively simple process that still leaves the judiciary in control of what is, demonstrably, an intrinsically justiciable issue.

The solution, if I may make so bold as to teach grandmother to suck eggs, is to adapt the Public Interest Immunity (P.I.I.) or Legal Professional Immunity (L.P.I.) procedure to the admission of overseas counsel.

The Department of Justice’s ad hominem rationale, as urged upon the Court of Final Appeal, is that state secrets might be revealed in the course of NSL proceedings and overseas counsel cannot be compelled to keep those secrets confidential.

In the case of Timothy Owen KC, the Secretary for Justice was unable to point to what, if any, state secrets were involved in the case in which Mr. Owen KC was briefed to appear.

The fact that this argument had not been ventilated in any of the three previous hearings related to Mr. Owen KC’s ad hoc admission, let alone tied to any specific sensitive material, meant that the Court of Final Appeal, understandably gave the argument short shrift.

The Hong Kong administration’s reasoning is that whereas full-time members of the local Bar can be held to account, once overseas counsel have returned to their home jurisdiction, they will no longer be amenable to control by the Hong Kong administration.

Hypersensitivity to issues of National Security is an issue that is faced by most countries, it should be noted that the UK’s National Security Bill marks a regressive step against the freedom of the press.

Confining ourselves to Hong Kong, let us assume, contrary to my considered opinion but for the sake of argument, that fear of disclosure of state secrets does justify restricting defence counsel to members of the local Bar.

Logically, the prohibition against overseas counsel should only apply where it is established that matters of state secrecy will form part of the case against the accused.

A straightforward way of addressing the perceived problem would be to adopt a similar process to where the state claims Public Interest Immunity (P.I.I.)

Where the state asserts that it is in the public interest not to disclose certain information to the Defence, the Secretary for Justice has to apply to the trial judge for a declaration of P.I.I. The judge considers the material and rules on it.

A simple and cost effective process for applications by overseas counsel for ad hoc admission to represent someone in a case in which the prosecution claim that state secrets are involved, would be to adopt the same procedure as in an application for P.I.I.

The Secretary for Justice would provide the material in question to the judge who would consider whether or not it constituted sensitive matter that bore directly on state security and then decide whether overseas counsel should be admitted for the trial of a National Security case.

The circumstances are sufficiently analogous to the usual procedure which is already carried out by the Chief Judge of the High Court when ruling whether or not overseas counsel can be given ad hoc admission in any case.

Consequently, by the simple device of seeking the court’s ruling on what, in many respects, mirrors the state’s wish to protect sensitive information in P.I.I., only where the court accepts the Secretary for Justice’s submission will there be valid grounds to exclude overseas counsel.

But the Secretary for Justice will have to satisfy the Court that there are genuine and substantial grounds for such an exclusion.

As a member of the Hong Kong and English Bars, I consider it an unwarranted calumny that the integrity of my brothers-at-law is questioned.

But if there is to be any limitation on Article 12(1) let it be restricted, rational and, above all, exercised judicially.

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King's Counsel