The Hong Kong Court of Appeal (CA) refused on Friday to grant media tycoon Jimmy Lai Chee Ying leave to appeal the lower court’s decision that the Committee for Safeguarding National Security of the Hong Kong SAR (NSC) is not subject to judicial review. The court criticized Lai’s litigation as “unreasonable” and found none of his points “reasonably arguable.”
The CA emphasized that Article 14 of the 2020 National Security Law (NSL) is explicit that the Standing Committee of the Chinese National People’s Congress (NPCSC) does not intend for Hong Kong courts to have jurisdiction over NSC decisions. NSL 14 delineates the NSC’s three primary duties and powers while explicitly stating that no institution or individual can interfere with the NSC’s work, and its decisions are not open to judicial review.
The court’s decision included an award of indemnity costs for the appeal, deeming Lai’s application “wholly unmeritorious.” The dismissal referenced the Anisminic principle, established in English common law, which maintains that “most clear and explicit words” are necessary to constitute an ouster clause that excludes judicial review.
In October 2021, Mr. Lai faced charges under the Crimes Ordinance and NSL 29(4) related to sedition and collusion with foreign entities. Even though Chief Judge Jeremy Poon and subsequent higher courts allowed the ad hoc admission of UK lawyer Tim Owen KC to represent Lai, the Chief Executive’s consultation with the Chinese government led to an NPCSC interpretation that mandates court compliance with certificates from the Chief Executive on national security matters.
Despite Lai’s argument contesting the retrospective effect of this interpretation, it was upheld when the Director of Immigration subsequently denied Tim Owen’s representation on national security grounds. Lai’s challenge that the NSC Decision exceeded NSL 14 was unsuccessful, with the court ruling that the interpretation bound the courts under the “one country, two systems” framework.
The broader implications of this case underscore the court’s strict adherence to the NSL and the limited recourse available for contesting NSC decisions, an issue of continued relevance for legal practitioners navigating Hong Kong’s complex legal landscape. The full details of the court’s ruling can be accessed through JURIST – News.