The Hong Kong Court of Appeal (CA) refused on Friday to grant 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 amenable to judicial review. The court further expressed its disapproval of the applicant’s “unreasonable litigation conduct” as it found none of the challenges “reasonably arguable.”
The court reiterated that Article 14 of the 2020 National Security Law (NSL 14) is “most clear” that the Standing Committee of the Chinese National People’s Congress (NPCSC) does not intend to confer jurisdiction on the Hong Kong courts to review any decision of the NSC. Not only does NSL 14 provide for NSC’s three duties and powers, but it also provides that:
No institutions, organisation or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review.
In dismissing the application, the court also awarded indemnity costs in the view that the application for leave to appeal is “wholly unmeritorious” and should not have been brought. The court reasoned that it had already dealt with the applicant’s arguments in its previous ruling and this application thus amounted to unreasonable litigation conduct.
The legal dispute arose from the well-established Anisminic principle in English common law. The legal position is that the statute requires “the most clear and explicit words” to constitute an ouster clause and override the presumption of legislative intention that executive decisions are justiciable by way of judicial review.
In 2003, the UK Supreme Court reaffirmed the English position that the jurisdiction to subject a decision to judicial review could impossibly be removed by statutory implication. On the other hand, the Hong Kong CA rejected the applicant’s submission that “no ouster clause, however clear and explicit, may exclude jurisdictional review” over NSC’s decisions because the contention is contrary to Lord Wilberforce’s judgment.
In October 2021, Jimmy Lai was charged with conspiracy to sedition under the Crimes Ordinance and conspiracies to “collude with a foreign country or external elements to endanger national security” under NSL 29(4). Lai applied for ad hoc admission of Tim Owen KC to represent Lai in the trial. Chief Judge Jeremy Poon allowed the admission, and the decision was reaffirmed by the CA and the Court of Final Appeal.
Subsequently, the Chief Executive John Lee reported to the Chinese government and the NPCSC issued an interpretation, providing that Hong Kong courts “shall request and obtain a certificate from the Chief Executive to certify whether an act involves national security” and that the certificate shall be binding on the courts. Despite Lai’s attempt to challenge that the interpretation has no retrospective effect, the Director of Immigration, as a member of the NSC, declared that the proposed representation by Tim Owen “is contrary to the interests of national security.”
On April 11, 2023, Lai attempted to argue that the NSC Decision and the Director of Immigration’s refusal of Tim Owen’s application for ad hoc admission were ultra vires NSL 14, by way of judicial review. In rejecting Lai’s application, the court held that NPCSC’s interpretation has the effect of clarifying or supplementing the laws and that the courts are therefore bound to follow it under the principle of “one country, two systems.” The court was not persuaded that the duties and powers within NSL 14 are exhaustive and therefore ruled that the court has no jurisdiction to review the NSC’s decisions.
