Lai Chee Ying v Committee for Safeguarding National Security of the HKSAR [2024] 2 HKLRD 1109, [2024] HKCA 400

Philip Dykes SC, Samantha Lau and Velda Yau represented the applicant (appellant) in Lai Chee Ying v Committee for Safeguarding National Security of the HKSAR [2024] 2 HKLRD 1109, [2024] HKCA 400.

Following the Secretary for Justice’s unsuccessful appeals against Poon CJHC’s decision granting T, an overseas King’s Counsel’s application for ad hoc admission as a barrister to represent L, a defendant in a criminal trial facing charges including offences under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL), the Chief Executive (CE) announced that he would submit a report to the Central People’s Government and recommend that a request be made to the Standing Committee of the National People’s Congress (NPCSC) to issue an interpretation of the NSL, seeking to clarify the following question: “Based on the legislative intent and objectives of [the NSL], can an overseas solicitor or barrister who is not qualified to practise generally in Hong Kong participate by any means in the handling of work in cases concerning offence endangering national security?”.

On 30 December 2022, the NPCSC issued the interpretation in relation to NSL 14 and NSL 47 (the Interpretation).

The Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (NSC) held a meeting on 11 January 2023 to discuss the implementation of the Interpretation, in which it decided that T’s proposed representation of L in the criminal case was contrary to the interests of national security and advised the Director of Immigration to refuse any fresh employment approval application that might be made by T (NSC Decision) in relation to the proposed representation. The Director also confirmed that he would duly respect and implement the NSC Decision (Director’s Decision).

L applied for leave for judicial review against the NSC Decision and the Director’s Decision on the ground that they were ultra vires NSL 14. The Chief Judge held inter alia that the NSC Decision was not amenable to judicial review and refused the leave application as it was plainly and wholly unarguable, and ordered L to pay costs on an indemnity basis. L appealed against the refusal to grant leave to apply for judicial review and decision on costs, on the following grounds: (i) that the Hong Kong courts did have supervisory jurisdiction over the NSC Decision and the Director’s Decision; (ii) that the NSC Decision was ultra vires NSL 14; (iii) challenging the Chief Judge’s admission of expert evidence on Mainland law; and (iv) attacking the order for indemnity costs against L.

Held, dismissing the appeal, that:

Construction of NSL 14

• (1) On the premise that NSL 14 contained an ouster clause (“Decisions made by the Committee shall not be amenable to judicial review”), it was pertinent to note that the presumption against ouster clauses was a technique in interpretation and was not conclusive, however strong it might be and despite the court’s “ingrained reluctance” to exclude judicial review. If the language used was “most clear and explicit”, it was possible to exclude the judgments and decisions of the NSC from the recourse of judicial review (R (Cart) v Upper Tribunal [2011] QB 120 considered). (See paras.31-34.)
• (2) In construing NSL 14, it was necessary to read its provisions with the Interpretation, and full effect must be given to it. The legislative intent as expressed in the language was that the NPCSC did not intend to confer jurisdiction on the Hong Kong courts to review any judgment, decision and act of the NSC, including the NSC Decision. The combined effect of NSL 14 and the Interpretation left no room for any doubt or ambiguity. The court was bound to give effect to the clear meaning of the language of the text. In particular:
  • (i) The Interpretation provides that under NSL 14, the NSC “has the power to make judgements and decisions on the question whether national security is involved” and decisions made by the NSC “are not amenable to judicial review and have enforceable legal effect”.
  • (ii) NSL 14 prohibited the disclosure of information relating to the work of the NSC, and this was repeated in the Interpretation. Disclosure of such information in the course of proceedings for judicial review would defeat the purpose of the confidentiality requirement.
  • (iii) The Interpretation stated that the engagement of overseas lawyers in cases concerning an offence endangering national security was a question that required certification under NSL 47, and a certificate from the CE shall be obtained. Importantly, the Interpretation stated “If the courts of the HKSAR have not requested or obtained a certificate on such question from the Chief Executive”, the NSC “shall perform its statutory duties and functions in accordance with the provisions of [NSL 14] to make relevant judgements and decisions on such situation and question.” (See paras.34, 39-41.)
• (3) There was no justification to construe the provisions in NSL 14 as restricting the performance of the NSC to the three listed “duties and functions” identified. By the Interpretation, which was a legislative interpretation of the NPCSC that could clarify or supplement laws, the statutory duties and functions of the NSC under NSL 14 were clarified to cover the making of “relevant judgements and decisions on such situation and question”, namely, where there was a question that required CE certification under NSL 47 and the courts had not requested or obtained a certificate from the CE (Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 applied). (See paras.37, 42-43.)

Other grounds of appeal

• (4) It was not necessary to deal with the issue whether the NSC Decision was ultra vires NSL 14 in light of the Court’s conclusion that the decisions were not amenable to judicial review. (See para.47.)
• (5) The challenge to the admission of expert evidence on Mainland Law to assist the Court in properly understanding the Interpretation was of little importance in this appeal. That said, such evidence was not warranted in view of the clear language of the provisions to be construed, and which the court could construe without reference to expert opinion. In any event, the impact or effect of an interpretation of laws by the NPCSC under the Mainland system had been fully explained by the Court of Final Appeal in Chong Fung Yuen (Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 considered). (See para.48.)
• (6) There was no basis to disturb the Chief Judge’s exercise of discretion to award costs on an indemnity basis in the circumstances. (See paras.49-52.)

[The above is excerpted from the headnote to the report in HKLRD.]