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Jimmy Lai case︱Lee Hsien-lun wrote an article questioning the interpretation of the law and seeking judicial changes: worrying about the rule of law becoming a thing of the past


Next Media's Jimmy Lai was approved by the court to hire British Queen's Counsel Tim Owen to defend the national security case. After the government's final appeal failed, it was submitted to the Standing Committee of the National People's Congress for interpretation. A piece circulated in legal circles by the former Court of Final Appeal

Next Media's Jimmy Lai was approved by the court to hire British Queen's Counsel Tim Owen to defend the national security case. After the government's final appeal failed, it was submitted to the Standing Committee of the National People's Congress for interpretation.

There is a nearly 4,000-word long article written by the former judge of the Court of Final Appeal, Lit Hsien-lun, which is widely circulated in the legal circle. The procedure has a great public interest.

The article pointed out that the employment of lawyers is a purely local matter. It was surprised that it had turned into a constitutional crisis. It believed that the judges ruled in full accordance with the common law and the "Basic Law", but the government insisted on breaking the law and sought "a complete change in the judiciary". At this stage, it is difficult See happy ending.

Once the "interpretation" overturns the court ruling, "the foundational confidence in the legal system will be seriously shaken, and it will be like an earthquake, making it difficult to rebuild stability. The judiciary will change forever, and the rule of law that exists today will become a thing of the past."

The Court of Final Appeal approved Li Zhiying's hiring of an overseas barrister as a defense lawyer, and the government immediately requested the National People's Congress to interpret the law.

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Hong Kong's judicial independence will be shattered, and Hong Kong's high degree of autonomy will be destroyed, followed by incalculable consequences.

The article is titled "Threat to Judicial Independence". It points out that the "Legal Practitioners Ordinance" has established sufficient standards for hiring overseas lawyers. The court will consider the lawyer's professionalism, the nature of the lawsuit, and more importantly, whether it can bring a significant perspective to the case.

Regarding the government's challenge to hire Tim Owen, the Court of Appeal described Tim Owen as a well-known expert in criminal law, public law and human rights law. He has solid experience in national security and freedom of speech cases, and has also participated in important cases in Hong Kong.

The article cites several articles of the Basic Law, including Article 94, which states that the Hong Kong government "may make reference to the measures previously implemented in Hong Kong to make regulations on the work and practice of local and foreign lawyers in the Hong Kong Special Administrative Region", thinking that it makes the public feel fair It is very important, but when the Department of Justice appealed, when considering hiring overseas lawyers, the consideration of "public interest" must be based on the "uniqueness of the National Security Law", and "generally speaking, it should be prior to/overriding other public interest considerations", because " The Hong Kong National Security Law is a national law, while the law of the People's Republic of China is a continental law.

Moreover, the employment of overseas lawyers is incompatible with the goals and design of the Hong Kong National Security Law. It is itself a national security risk and cannot effectively prevent leaks.

The article asked, "Where will these doubts eventually point?"

He also said that the Lai case obviously did not involve "state secrets". Even assuming that "state secrets" are important elements, there is a common law mechanism to deal with them. The prosecution lawyers can seek a judge's decision in court to prohibit the defense from using such information. The legal system is good at handling these procedures.

The laws previously in force in Hong Kong, namely the common law, the law of equity, ordinances, subsidiary legislation and customary law, shall be retained, except those which conflict with this Law or which have been amended by the legislature of the Hong Kong Special Administrative Region.

Article 8 of the Basic Law

Lie Xianlun.

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The article pointed out that the prosecution pointed out that it is difficult to guarantee that overseas lawyers will not leak "state secrets". The premise of this statement is that the lawyer representing the prosecution is trustworthy.

The article asks, if Tim Owen cannot be trusted to act professionally, can other local senior counsel who hold foreign passports, dual citizenship, have a second home overseas, or have family ties be trusted?

These lawyers represent the prosecution, do they have to check the background, even including "student records"?

What about judges from similar backgrounds, who will perform their oath in good faith?

The article pointed out that the Department of Justice plays the role of "guardian of the public interest" and "prosecutor". It is questioned what role the Department of Justice plays when it raises objections?

If the primary duty is to ensure a fair trial as quickly as possible, why insist on blocking Tim Owen's plea?

One of the appeal grounds of the Department of Justice is to deny the decision-making power of the judiciary and the principle of appeal, so "how do you imagine that there will be a chance of success in the appeal?"

The article pointed out that the ultimate appeal of the Department of Justice is that any overseas lawyers appearing as representatives in the national security case will violate the goal of "preventing external forces from interfering in Hong Kong affairs" in the "Hong Kong National Security Law". .

At the same time, the defendant has been detained for a long time awaiting trial, and there is a strong public interest in starting the trial as soon as possible. Article 42 of the Hong Kong National Security Law stipulates that the case should be "handled in a timely manner". Until next year, the date is unknown. He made people wonder "is the Secretary for Justice subject to political interference?" He asked why he didn't perform his duties with clear requirements in a strong and resolute manner, and started the trial as scheduled at the beginning of this month.

The Department of Justice of the Hong Kong Special Administrative Region is in charge of criminal prosecution work and is free from any interference.

Article 63 of the Basic Law

Li Zhiying was arrested on August 10 last year on suspicion of violating the "Hong Kong National Security Law" and conspiracy to commit fraud.

(File photo/photo by Luo Junhao)

The article pointed out that the court is only doing a good job of "case management" in accordance with the "Legal Practitioners Regulations", the principles of common law, and the "Basic Law" in order to arrange criminal trials. It does not see how the Standing Committee of the National People's Congress will intervene; It is believed that the "Hong Kong National Security Law" overrides the "Legal Practitioners Regulations", and the court was not qualified to confirm Tim Owen's qualifications at the beginning.

The article refers to the simple case management, causing a lot of trouble in the city, which will have a substantial impact on the development of the judicial process of the National Security Law.

In the life of a nation and a community, a small mistake, a carelessness, or carelessness can lead to disastrous consequences.

The Li Zhiying case does not explain the law?

Tan Yaozong is not sure that the National People's Congress will not deal with it at the end of the month: Li Zhiying's case needs to be studied|Tang Jiahua agrees with the National People's Congress's interpretation: but "how to kill a chicken with a bull's knife" can the interpretation of the Li Zhiying case be variable?

Asked whether the National People's Congress has replied to Li Jiachao: I believe the court will deal with it

Source: hk1

All news articles on 2022-12-20

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