Transcript of remarks by CE at media session on interpretation of Law on Safeguarding National Security in Hong Kong by Standing Committee of National People's Congress (with video)
Reporter: Good evening, some English questions. Firstly, under the interpretation by the National People's Congress Standing Committee, the matter of allowing overseas lawyers without the full right to practise in Hong Kong to defend clients involved in national security cases, rest either on the Committee for Safeguarding National Security (of the Hong Kong Special Administrative Region) or on yourself as the Chief Executive. We want to ask would Jimmy Lai now be able to apply to employ an overseas lawyer for his case through the courts if he wishes and what would the relevant procedures be in that case? And also by allowing the Chief Executive to have the power to determine whether overseas lawyers are allowed in either the Committee for Safeguarding National Security or via himself through approving a certificate, is this unfair to any potential defendants due to a conflict of interest?
And secondly, you also talked about how the Government will raise an amendment to the Legal Practitioners Ordinance, can we ask what do you mean by this amendment? And also whether or not there would be a timetable on when these amendments would be made? And also, what is your stance on hiring overseas lawyers for national security cases? And why welcome certain overseas lawyers for other types of cases, but not those involving national security? Thank you.
Chief Executive: That is a very long series of questions which actually has broken the tradition of answering two questions. But anyway, I will try to answer them as fully as possible. First of all, we have to pay attention what actually the interpretation covers on this occasion. It covers three points. First of all, it touches on the Hong Kong SAR (Special Administrative Region) National Security Committee's duties and functions, and it also talks about how Article 14 and Article 47 (of the Hong Kong National Security Law) can be used to do the certification of an activity, whether the activity relates to national security, or whether the information concerned relates to national secrets. So it is an interpretation to allow us to understand more on how the National Security Law actually means in these areas.
In regard to your first questions about Jimmy Lai’s case, the interpretation, first of all, doesn't deal with a particular case. The interpretation deals with principles. The principle of how Article 14 and Article 47 should be applied so as to help Hong Kong solving the problem it faces. In fact, it is a principle that should be applied to solve other problems that may arise in the Hong Kong SAR implementation of the Hong Kong National Security Law. It is principle, it is not case, that the interpretation deals with. It will be up to Hong Kong to make use of Article 14 and Article 47 to deal with the case concerned. What it means is, in respect of this case, we are dealing with the issue. We, I mean the Hong Kong SAR, are dealing with the issue whether an overseas lawyer who hasn't got full practising rights or qualification in Hong Kong, should be allowed to take part in any national security cases. It will be up to Hong Kong SAR itself to deal with that issue. That means the Hong Kong National Security Committee will have to examine the issues and then make a judgement and make a decision as to how this matter will be addressed.
The second thing is the Hong Kong SAR itself, particularly the Government, has the responsibility to fulfil its obligation to protect national security. So Hong Kong SAR Government can and should also exercise its duty to look at how and what we can do to address the question whether an overseas lawyer or barrister, who hasn't got full practising rights in Hong Kong, should be allowed to take part in a national security case, taking into consideration all the risks that may be involved. And then the Hong Kong government should examine the way to deal with it. And equally, the Hong Kong National Security Committee may address a particular issue, making use of the power under Article 14 and Article 47 to address the question. And then after the National Security Committee has made a judgment decision, then of course, the Hong Kong SAR Government will examine how to implement it.
The power of the Chief Executive to issue a certificate to certify whether an activity relates to national security or any information relates to national secrets is a power that has been given to the Chief Executive since the enactment and the implementation of the Hong Kong National Security Law. So it has been there on the very first day when the law was enacted and implemented. The Chief Executive’s duty is to look at all the information available to him to make an assessment and then certify whether a particular activity relates to national security or any information relates to national secrets. This is to deal with certification. And in any trial, the judge is to examine the evidence and the facts of the case to make his judgment independently. So the certification is a fact that he will take into consideration. But whether a person is to be found guilty or acquitted will be based on the evidence and the facts that are presented in the court for the judge to make his independent judgment, free of interference.
The third thing is regarding the examination of Legal Practitioners Ordinance to see whether there is a need to amend it, of course, the Hong Kong SAR Government in fulfilling its obligation to protect national security have to weigh on the risks whether such participation by an overseas lawyer or barrister without full practising rights, looking at the potential risks, and then see whether we should amend the Legal Practitioners Ordinance. When there is a decision to amend it, then of course it will be through a bill presented to the LegCo (Legislative Council), for it to be considered in accordance with LegCo’s procedure. But I must emphasise what I'm talking about, and what the issue in front of us is, a very small area, i.e. looking at an overseas lawyer or barrister without full practising rights or qualifications, whether they should be allowed to take part in national security cases. Beyond national security cases, then they are most welcome, provided that they satisfied the procedure to obtain an ad hoc admission approval by the court. As regards timetable, we will very quickly look at all the risks as I've mentioned and if the decision is made that we should proceed with the amendment, then of course we'll do it as soon as possible.
Your last question about overseas lawyers or barristers practising in cases other than national security cases. I've already answered it. They're most welcome. And it has been the practice before, provided that they satisfied all the requirements and procedures and obtained the High Court's ad hoc admission approval.
Reporter: Good evening, Mr Lee. First of all, according to the interpretation, the matter of overseas lawyers representing a defendant in national security cases is just one of an unspecified category of national security matters that may be up to you and the National Security Committee's assessment. So, even you said that the national security cases is just a very small area, is it that in that area, the National Security Committee has become a court above all courts in Hong Kong? And you, as the Chairman of the Committee, have become a judge above all judges? Second question, you said that in non-national security cases, overseas lawyers are still most welcome to practise in Hong Kong. However, we all know that national security cases in Hong Kong do not only cover NSL (National Security Law) crimes, it may also cover sedition, for example. So can you, once and for all, tell all the overseas lawyers, what are non-national security cases in Hong Kong, or, in an opposite way, what are national security cases in Hong Kong? Thank you.
Chief Executive: Can you, first of all, repeat your first question, because you have asked quite a few.
Reporter: Of course, my first question is, under the interpretation, the matter of overseas lawyers representing defendants in national security cases, is just one of an unspecified category of national security matters that you and the National Security Committee may assess and decide. So, even you said that national security cases form a very small area, would it be that, at least in that area, the National Security Committee has become a court above all courts, and you, as the Chairman, have become a judge above all judges?
Chief Executive: Well, first of all, your premise, I have to correct it. The interpretation on this occasion clearly explains the purposes and intention of the Hong Kong National Security Law by specifying the role of the Chief Executive in assessing and certifying whether any activity relates to national security, and whether any information relates to national secrets. And of course, you will know that for a lot of activities, they can vary in the actual execution of what is intended to be done to harm national security. So, there will be a variety of actions that may endanger national security, which a country faces, whether it is our own country, or any other countries.
Espionage, for example, can take various forms. It is the duty of the Chief Executive to certify whether any activity actually relates to national security. So, it is this certification that Article 47 is specifying. This power exists in the Hong Kong National Security Law, since its enactment and implementation. The interpretation of Article 47 does not create extra power for the Chief Executive in such certification. The Chief Executive only does the certification. He is not to rule on a case. All cases are ruled by judges in courts in accordance with the law, and the evidence and facts in front of the judge. In each case, the defendant is fully represented by lawyers chosen by him, whom will be arguing the case on his behalf. The Chief Executive doesn't play the judge at all. So this is a wrong premise, and is a wrong interpretation. Since the Chief Executive is not a judge, there is no truth in your description of having anything to do with being above the judges, because the certification only aims at certifying a particular activity relates to national security.
The Hong Kong National Security Law stipulates only four offence types. But activities that endanger national security can be beyond the four offence types of the Hong Kong National Security Law. That is why I have always been telling people that the Hong Kong National Security Law is a law which addresses only some specific activities which endanger national security. In fact, there are a lot other activities that may endanger national security, which are not covered by the Hong Kong National Security Law. They may be covered in other Hong Kong laws, such as the Crimes Ordinance on treason. The Hong Kong National Security Law doesn't cover treason, but the Crimes Ordinance of Hong Kong does. So you are right, there are activities which may endanger national security, which goes beyond the coverage of the Hong Kong National Security Law. That is exactly why the Hong Kong Special Administrative Region (HKSAR) Government has a duty to enact the law to satisfy Article 23 of the Basic Law and also to improve the system and the legal coverage for activities that may endanger national security. But this will be done through local legislation. This is the duty of all governments of any country to safeguard the country's national security through the successful implementation of the laws, because safeguarding national security is a state's responsibility. It is the responsibility of almost all the states around the world. The Central People's Government has trusted the HKSAR Government to implement laws to safeguard national security. We have to do it to fulfil our obligation, because under the Hong Kong National Security Law and the Basic Law, we have this constitutional duty. Thank you very much.
(Please also refer to the Chinese portion of the transcript.)
Ends/Saturday, December 31, 2022
Issued at HKT 0:53
Issued at HKT 0:53
Audio / Video
CE meets the media