Re Mr Timothy Wynn Owen Kc

CACV 425/2022

[2022] HKCA 1689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 425 OF 2022

(ON APPEAL FROM HCMP NO 1402 OF 2022)

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Before: Hon Kwan VP, Chu VP and Au JA in Court

Dates of Written Submissions: 28 and 31 October 2022, 2 and 3 November 2022

Date of Judgment: 9 November 2022

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J U D G M E N T

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This Court:

Introduction

1.On 19 October 2022, the Chief Judge of the High Court handed down his judgment (“Judgment”)^[1] granting the ad hoc admission of Mr Timothy Owen, KC to represent Mr Lai Chee Ying in his trial in HCCC 51/2022.  Mr Lai founded Next Digital Limited and the newspaper “Apple Daily”, which was widely circulated in Hong Kong until it ceased publication as from 24 June 2021.  The trading of the shares of Next Digital Limited on the Hong Kong Stock Exchange has been suspended since 16 June 2021.

2.Mr Lai, Apple Daily Limited, Apple Daily Printing Limited and AD Internet Limited are the four defendants in the trial^[2]. All four defendants are charged with one count of conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200 (“CO”).  The other three charges concern conspiracies to collude with a foreign country or external elements to endanger national security, contrary to article 29(4) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”).  One of the three charges is brought against all four defendants, the other two are brought against Mr Lai solely.  In gist, the prosecution alleges that:

(1)  Mr Lai, either in his own personal capacity or through Apple Daily, has published or reproduced seditious publications and conspired with or requested a foreign country or external elements to endanger national security by imposing sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China; and

(2)  Mr Lai was involved in directing and/or financing a group called “Fight for Freedom Stand with Hong Kong” in its activities of advocating and soliciting foreign countries, bodies or individuals to endanger national security.

3.This is the first prosecution brought under NSL 29(4) to be tried by the Court of First Instance before a panel of three designated judges.  It is provided in NSL 29 that a person who commits an offence of a grave nature under this article shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years.  The prosecution has attracted substantial publicity and extensive media coverage, locally and internationally. The trial will commence on 1 December 2022 and is scheduled to last till late January 2023 with a one week break for the public holidays.  Mr Lai is represented by a team of three counsel led by Mr Robert Pang, SC. 

4.In early August 2022, before the trial dates were fixed without accommodating counsel’s diaries^[3], Mr Lai with his solicitors had decided to engage Mr Owen to lead the local team of counsel. Mr Owen is a renowned specialist in criminal, public and human rights law, with substantial experience in cases concerning national security and freedom of speech.  He has a wealth of experience in different jurisdictions and has appeared before the courts of Hong Kong in quite a few important cases. 

5.Mr Lai’s solicitors sought consent for Mr Owen’s admission to the Hong Kong Bar from the Secretary for Justice and the Bar Council.  Both refused to give consent and opposed the application for admission, which was dealt with by the Chief Judge on the basis of written submissions. 

The Judgment

6.According to the Junior Counsel’s Certificate filed in support of the application, the trial would involve these novel legal aspects concerning the offence under NSL 29(4):

(1)  what is the actus reus and mens rea of such an offence;

(2)  whether Mr Lai’s acts can amount to acts involving a “request” under NSL 29(4), and in particular, to what extent an article of commentary or interview with public figures which addresses matters of national security or recites certain comments from other persons constitutes a “request”;

(3)  the potential over-breadth of NSL 29(4), particularly in light of the matters stated above; and

(4)  the proper approach to construing the reach of NSL 29(4) in light of the inter-relationship between NSL 62 (stating that the NSL shall prevail where provisions of local laws are inconsistent with the NSL) and (a) NSL 4 which requires that human rights (as guaranteed by the Basic Law (“BL”) and the International Covenant on Civil and Political Rights (“ICCPR”)) including the freedom of expression, shall be protected in safeguarding national security; and (b) NSL 5 which states that the principle of the rule of law shall be adhered to in preventing, suppressing and imposing punishment for offences endangering national security.

7.Another issue of importance identified in the Junior Counsel’s Certificate involves the constitutionality of sections 9 and 10 of the CO, namely, whether those provisions are (a) in accordance with the law; and (b) a proportionate restriction to the freedom of expression guaranteed by BL 27 and article 16 of the Hong Kong Bill of Rights (“BOR”).

8.The application for admission was made on five main grounds.  For present purpose, it is necessary to mention only three of them:

(1)  the present case is of unusual difficulty and complexity in respect of the legal issues and principles involved;

(2)  it involves the resolution of legal issues of great and general importance that would impact substantially on the development of local laws; and

(3)  Mr Owen would add a significant dimension and contribute significantly to the case by reason of his experience and expertise.

9.The Secretary for Justice and the Bar Council accepted that the issues that would arise at the trial are of great general and public importance and that Mr Owen is of high standing but disputed that the issues involved are of unusual difficulty or complexity or that Mr Owen would add a significant dimension to the trial.  The Chief Judge took the view that the above three grounds are all established.  His reasoning is as follows.

10.The critical question that would arise is how to delineate the scope of an offence under NSL 29(4) against the specific context of the freedom of expression.  Although there is general guidance from the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 that the construction exercise is to be guided by the purposive and contextual approach and the legislative intention of the NSL, the trial “will most probably involve an in-depth and rigorous analysis of the intricate interplay between national security and the constitutional right to the freedom of expression, to ensure that a proportionate balance is drawn for safeguarding national security on the one hand and protecting the freedom of expression on the other”.  In the event that novel points should arise (this being the first prosecution under NSL 29(4) heard by the Court of First Instance), it may entail “a thorough study and consideration of comparable international jurisprudence such as cases decided by the European Court of Human Rights”.  The Chief Judge regards the construction exercise to be of unusual difficulty – in terms of legal analysis, how to balance the competing public interests of safeguarding national security and protecting the freedom of expression is “extremely difficult and delicate”; in terms of fact, it requires a very close scrutiny of the voluminous evidence to see if any of the NSL 29(4) charges against Mr Lai is made out^[4].

11.As for the constitutionality of sections 9 and 10 of the CO, that issue has yet to be determined by the Court of First Instance or above.  Although the principle of legality and the proportionality test are well established, the analysis and determination involved is “by no means simple or straightforward”, and the court will most likely need to consult the developments in other common law jurisdictions where nearly identical offence of sedition had been trimmed or even repealed in deciding if, within our legal framework, the two sections are constitutional in light of the rights provisions in BL 27, BL 39 and BOR 16.  The Chief Judge thinks this exercise is of unusual difficulty and will certainly produce great jurisprudential value to the development of local laws on the subject^[5].

12.The Chief Judge also noted that the issues arising from the construction of NSL 29(4) and the constitutionality of sections 9 and 10 of the CO will most likely go further to the Court of Appeal and even the Court of Final Appeal, and this is also a powerful factor in favour of admission^[6].

13.He concluded it is “clearly in the public interest” to admit an overseas specialist as eminent as Mr Owen so that the court will have the best assistance to tackle the formidable task at hand in the trial.  He rejected the contention that Mr Owen would not add a significant dimension to the trial.

This appeal

14.This appeal is brought by the Secretary for Justice and is dealt with on paper on an expedited basis in view of the imminent trial.

15.The Secretary for Justice wears two hats in this instance.  He is the prosecuting authority in the trial.  However, the papers in this application were not served on him in this capacity, nor does he take part in this application in this capacity.  The other role of the Secretary is to act as the protector of public interest in an application for admission.  It is in this other capacity that he makes representation in the application before the Chief Judge and in bringing this appeal.  Perception-wise, it may be difficult to disentangle the two roles in the present situation, where it may not be readily perceived that impartial submissions on where the public interest lies could genuinely be made on behalf of the Secretary if the outcome of what he advocates would clearly be a setback to the defence in the trial.  Mr Pang^[7] complained about the “highly partisan stance” of the Secretary in pursuing this appeal and the attempt “to litigate many of the very issues which are to be decided in the trial (and any appeal) process” “in a way which is plainly intended to assist the [Department of Justice] which controls criminal proceedings under BL 63”.

16.For the resolution of this appeal, it is not necessary to be drawn into Mr Pang’s complaint.  We shall put aside his complaints of abuse of process and matters of public perception in considering the submissions made by Mr Benjamin Yu, SC^[8] on behalf of the Secretary.

17.Under section 27(4) of the Legal Practitioners Ordinance, Cap 159, the court has an unfettered discretion on the ad hoc admission of overseas counsel, to be exercised in a judicial manner and assisted by relevant principles and guidelines established in the earlier authorities^[9]. Public interest has always been the paramount if not the sole consideration in the exercise of the discretion.  As there are many and sometimes conflicting aspects of the public interest, the exercise of discretion would often involve a balancing exercise.  New aspects of public interest may emerge or one aspect may become more important than others in a particular situation.  The court’s task is to identify the relevant aspects of the public interest engaged, carefully balance them in a flexible and sensible manner in order to arrive at a decision that best suits the public interest in the application^[10].

18.Mr Yu acknowledged this is an appeal against the exercise of judicial discretion and the established principles apply to the approach of the appeal court in an appeal of this nature^[11].  The appeal court must defer to the judge’s exercise of discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently.  The function of the appeal court is initially one of review.  It can only interfere in three instances: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong.  It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or more of these reasons that it becomes entitled to exercise an original discretion of its own.

19.Mr Yu does not contend that the Chief Judge has misdirected himself with regard to the relevant principles or that his decision is plainly wrong.  His contention is premised on (2), namely, that the judge has erred in the exercise of his discretion in “failing to take into account highly material considerations and has erred in taking into account irrelevant considerations”, and what are known colloquially as ‘Wednesbury’ grounds^[12].

20.It is a heavy burden on an appellant to demonstrate to the appeal court that the judge’s exercise of discretion can be attacked on the ‘Wednesbury’ grounds^[13].

21.The Bar Council recognises that decisions on applications for ad hoc admission are matters of the court’s unfettered discretion and that the Court of Appeal will not lightly interfere with such exercise of discretion.  Mr Bernard Man, SC^[14] has put in a short submission to assist the court.  Whilst he maintains the contentions below that the issues involved in the trial are not of unusual difficulty or complexity and it is doubtful whether Mr Owen would add a significant dimension to the trial, the Bar will leave it to the Secretary to persuade this court that there are sufficiently cogent reasons to justify appellate intervention in the Chief Judge’s exercise of discretion.

The grounds of appeal

22.Three grounds of appeal are advanced in the notice of appeal.

23.The first ground states that the Chief Judge erred in law in “failing to take into consideration”: (a) the NSL is a national law applicable to the Hong Kong Special Administrative Region and was enacted to address “a highly specific national concern that is tailored to Hong Kong’s unique constitutional framework”, and offences endangering national security under the local laws are to be enforced against the above background in complement with the NSL; and (b) Mr Owen does not have or profess to have expertise or experience in issues concerning the construction or application of the NSL and offences endangering national security under the local laws including sedition offence and hence is not able to add a significant dimension to the case, particularly in light of the fact that local senior counsel with relevant experience had already been engaged.

24.The second ground relates to the issue of the constitutionality of sections 9 and 10 of the CO and states that the Chief Judge should have taken into account the law on the constitutional challenge of a statutory provision is well established in Hong Kong and there is substantial experience in the local Bar in conducting such challenge.

25.The third ground states that the Chief Judge took into account an irrelevant consideration.  The mere possibility that issues arising from the construction of NSL 29(4) and the constitutionality of sections 9 and 10 of the CO may be the subject of an appeal to the Court of Appeal or the Court of Final Appeal should not be relevant when it is not known whether there will be reasonably arguable issues.

26.Unlike the submissions made to the Chief Judge when the Secretary was represented by different counsel^[15], the focus of Mr Yu’s arguments is on the unique context of the NSL^[16], that it is a national law applicable to Hong Kong and was enacted to address a highly specific national concern that is tailored to Hong Kong’s unique constitutional framework^[17], and contending that “by its nature, the concept of ‘national security’ is inevitably intertwined with the social, political and constitutional context of the State (ie PRC, and with a specific focus on the HKSAR insofar as the NSL and the sedition offence are concerned)”^[18] and that offences endangering national security under the local laws such as sedition are to be enforced against the above background in complement with the NSL^[19].

27.As mentioned earlier, it is stated in the first ground of the notice of appeal that the Chief Judge erred in law in “failing to take into consideration” the above matters.  Mr Yu made the point that the judge “failed to grapple the fact that the upcoming criminal trial concerns the construction and application of the NSL and local laws in complement with NSL” and “This is unique to the present context”^[20]. His contention was apparently made with an eye of seeking to challenge the Chief Judge’s exercise of discretion on ‘Wednesbury’ grounds, namely, that the judge has failed to take into account highly material considerations and has taken into account irrelevant considerations.

28.It is extremely unlikely that the Chief Judge, who has given several judgments concerning various provisions of the NSL^[21], would have failed to appreciate the unique context of the NSL and the circumstances of its enactment, or have failed to take note of the two judgments of the Court of Final Appeal in HKSAR v Lai Chee Ying (which he specifically referred to in §14 of the Judgment and at some length in other judgments he gave in relation to the NSL) and HKSAR v Ng Hau Yi Sidney. Besides, these matters were dealt with in the submissions of Mr Man placed before him.  Mr Yu accepted in his reply submission that the Chief Judge was of course conversant with the purposive and contextual approach in construing the NSL.  We do not agree with Mr Yu there is any misreading of his first ground of appeal and reject his contention that the Chief Judge had failed to take into consideration or failed to grapple the matters as stated above.

29.It seems to us the real complaint of Mr Yu is that the unique context of the NSL, which would require “understanding of the unique social, political and constitutional context of the PRC and the HKSAR, should take precedence”^[22], and that “new aspects of public interest may emerge or one aspect may become more important than others”^[23]. Mr Pang describes it as deploying “national security” as a “trump card” which “uniquely tilts the balance of the public interest” against the admission of overseas counsel.  We think this essentially goes to the weighing exercise of the judge of the relevant aspects of the public interest engaged in striking a proper balance in the exercise of his discretion.  We do not regard this as a challenge of the exercise of discretion on the ‘Wednesbury’ grounds invoked by Mr Yu.

30.In Mr Yu’s submissions in reply, he sought to backtrack from the position in his first submission and contended that the Chief Judge had failed “to recognize that such balancing exercise must be carried out against the unique constitutional and socio-legal context of the HKSAR and the PRC”^[24]. This is a tacit recognition that his complaint is about the balancing exercise conducted by the judge, and that particular aspects of the public interest should be regarded as more important than others.

31.Having sorted out the proper perspective of the arguments raised by the Secretary on appeal, we turn to consider the three grounds of appeal.

1^st ground of appeal – unique and specific context of the NSL

32.Mr Yu placed heavy emphasis on the unique context of the NSL, with the objective of showing that in view of the unique socio-legal and constitutional context of the HKSAR and the PRC in construing issues concerning national security, Mr Owen, who does not have or profess to have expertise or experience in issues concerning the construction or application of the NSL and offences endangering national security under the local laws including sedition offence, would not be able to add a significant dimension to the case or provide significant contribution to the trial court.

33.In summary, he highlighted these unique aspects of the NSL: (1) its enactment history in response to notable national security risks in the HKSAR in the recent years and its special constitutional status; (2) the concept of national security intertwined with the social and political context of the State, ie the PRC, with special focus on the HKSAR; (3) the drafting of the NSL as guided by, inter alia, the ideologies of the Central Authorities; (4) the ultimate vesting of the power of interpretation of the NSL with the Standing Committee of the National People’s Congress, pursuant to NSL 65; (5) the Chinese text of the NSL being the only authentic text, the English language version was published “for information only”; (6) construing the scope of NSL 29(4), which criminalised the making of requests to a foreign country, institution, organisation or individual outside the PRC to impose sanctions or blockage or engage in other hostile activities against the HKSAR or the PRC, against its unique purpose and context.

34.Mr Yu submitted that overseas counsel who may not have thorough understanding of the unique local context of the PRC and particularly that of the HKSAR and who does not have experience in the conduct of NSL-related cases is unlikely to offer significant contribution to the case, especially given that local counsel with relevant experience has already been instructed.  He cited an extract from the article of Sir Anthony Mason entitled “The Place of Comparative Law in Developing the Jurisprudence on the Rule of Law and Human Rights in Hong Kong” (2007) HKLJ 299 at 303 to 306 in which four differences – political differentiations; doctrinal differences; historical, social and cultural differences; and policy factor – are analysed as “countervailing considerations” which would need to be taken into account in the use of comparative law despite the apparent attractions of particular comparative law solutions.  Mr Yu argued that in the context of the NSL, overseas jurisprudence “must be treated with caution” and is of “limited assistance”. Besides, there is no comparable collusion offence under NSL 29(4) in the UK, and the law on sedition in the UK and Hong Kong is “vastly different” in that the former was based on common law whereas the sedition offence is codified in Hong Kong.  Foreign legislative acts on sedition offence are “hardly relevant”.

35.In contrast to his predecessor, Mr Yu devoted only one short paragraph in his two submissions on the complexity of construing NSL 29(4) ^[25], contending that while NSL 29 may be relatively new, it does not follow that the issues must be complex and it has been held that the NSL is to be construed in accordance with common law principles bearing in mind its context, purpose and constitutional basis^[26], and that questions of statutory interpretation do not usually justify the admission of overseas counsel especially where local jurisprudence and experience of the local Bar assume “primary importance”.

36.The unique context of the NSL is of course a significant factor relevant to the exercise of discretion.  However, we do not agree with Mr Yu that the unique context of the NSL should take precedence over other aspects of public interest or be of primary importance in the ad hoc admission of overseas counsel.  If this approach is to be taken to its logical conclusion, it would follow that overseas counsel should generally not be admitted in NSL cases.  We do not think those unique features of the NSL as urged upon us by Mr Yu are sufficient to demonstrate that such an approach would best suit the public interest in the present situation, such that other aspects of the public interest should pale into insignificance.  There are clearly other aspects of the public interest which the Chief Judge had weighed and balanced, among them the novelty and the great general public importance of the legal issues involved, the unusual difficulty and complexity of the issues, the substantial impact the determination of the issues may have on the development of Hong Kong law and the likelihood of appeal.  There is no proper basis to differ from the assessment of the Chief Judge, who has much experience in the field of public law and has handled several NSL related cases, that the issues involved are of unusual difficulty or complexity, the determination of which will produce jurisprudence of great value to the development of local law.

37.As for the contention that overseas jurisprudence could only be of limited assistance in delineating the scope of an offence under NSL 29(4) against the context of the freedom of expression, it seems to us there may be respectable arguments to the contrary that overseas jurisprudence may not be of such limited assistance as argued by Mr Yu. Human rights have an international law dimension and NSL 4 makes it plain that human rights and fundamental freedoms under the laws of the HKSAR are to be respected and protected while safeguarding national security in the HKSAR.  As the Chief Judge has stated, how to balance the competing public interests of safeguarding national security and protecting the freedom of expression is “extremely difficult and delicate”^[27].

38.The article of Sir Anthony Mason has much to say about the relevance and value of comparative law in the development of the constitutional jurisprudence of Hong Kong, quite apart from the four countervailing considerations highlighted by Mr Yu.  He also stated that despite the countervailing considerations he identified, there are obvious attractions in comparative law, as no jurisdiction has a monopoly on judicial wisdom and in many situations it will be instructive to ascertain how a similar or related question of law has been dealt with by the court of another jurisdiction^[28]. He stressed that for a newly established court of final appeal, it is important that the decisions of the Court of Final Appeal “should be seen to conform to internationally accepted judicial standards”, as Hong Kong’s reputation as an international financial centre depends upon the integrity and standing of its courts, and “it is important that the decisions of the Hong Kong courts reflect adherence to the rule of law in accordance with internationally adopted judicial standards” ^[29]. NSL 5 affirms adherence to the principle of the rule of law while enforcing the law against offences endangering national security.  We think these observations of Sir Anthony Mason are no less valid in the present times and they apply to the courts of Hong Kong not just the Court of Final Appeal.

39.It is not necessary to express a view on the observations of the District Judge on the relevance of overseas jurisprudence in HKSAR v Lai Man Ling [2022] HKDC 981 at §103.  We are inclined to think that Mr Yu has over-stated the “vast difference” between Hong Kong law and UK law on the sedition offence and that foreign legislative acts are “hardly relevant”.  As pointed out by Mr Pang, the Sedition Ordinance which was first enacted in Hong Kong in 1938 codified the common law offence.  The offence of sedition was enacted in many common law jurisdictions and the offence existed in the UK until 2009.

40.Mr Pang made a valid point that like the NSL, the BL is also a piece of legislation with a special constitutional status unique to Hong Kong.  The BL, like the NSL, differs in drafting style and structure from local ordinances and legislation in other common law jurisdictions. Although for the BL the official English text shall be equally authentic as the Chinese text, the Chinese text shall prevail in case of any discrepancy in the meaning of wording between the English text and the Chinese text^[30]. And yet overseas counsel have been admitted in numerous cases concerning the interpretation and construction of the BL^[31]. Further, non-Chinese literate judges have been made designated judges by the Chief Executive under NSL 44 to adjudicate cases concerning the NSL.

41.In reply, Mr Yu submitted that the NSL situation is very different from the BL in that overseas counsel had been admitted to conduct cases involving concept in the BL that are taken from the ICCPR, that the BL has been in force for 25 years and the local Bar has built up expertise in the field and the Hong Kong courts have developed its jurisprudence on human rights cases.  There are “ample examples” where the Hong Kong courts have the assistance of local counsel in undertaking the balancing of national security against fundamental human rights or freedom^[32]. As for non-Chinese literate designated judges hearing NSL cases, there is no legal requirement that a judge must have expertise in the relevant area of the law to preside over a case. 

42.Mr Man clarified it is not the Bar’s position that non-Chinese speaking counsel are incapable of providing assistance to the court on NSL related matters because the NSL is drafted in Chinese.  The Bar’s contention is that any arguments based on the language of the NSL would “best be advanced” by Chinese-speaking counsel.

43.We do not accept the submissions of Mr Yu and Mr Man.  We are not persuaded that Mr Owen would not be able to add a significant dimension to the case, for the reasons already mentioned.

44.Despite the many cases cited to this court, we have not been referred to any instance in which an admission of overseas counsel was refused in a case concerning the interpretation of the BL where the court had considered that non-Chinese literate counsel might not be able to make a significant contribution in light of arguments that could be based on the Chinese text of the BL.  We see no reason to think that the NSL would be very different from the BL in terms of drafting technique and language usage.  What has worked in overseas admissions for the BL should work equally in an overseas admission for the NSL.  And of all the NSL judgments in English and Chinese cited to this court, our attention has not been drawn to any case in which arguments based on the language of the NSL were made in such a way that one can justifiably say that such arguments would “best be advanced” by Chinese-speaking counsel.  Nor has it been suggested by the Secretary or the Bar Council that they anticipate arguments based on the Chinese text of the NSL would be made at this trial.  It seems to us the linguistic aspect of the NSL is played up out of proportion.

45.Unlike the BL which has been in force for 25 years and expertise has accumulated in the local Bar and our courts have developed its jurisprudence in this area, the NSL was only promulgated on 30 June 2020.  The NSL and seditious publication cases that have reached the Court of Final Appeal so far concerned the question of bail, although general guidance on the interpretation of NSL provisions has been given by the highest court.  It is of vital importance in the early days of the NSL that our jurisprudence should be developed on solid foundations to reflect adherence to the rule of law in accordance with internationally adopted judicial standards. It would clearly be in the public interest to have the contribution of eminent jurists in developing our jurisprudence in the NSL.

2^nd ground of appeal – constitutionality of sections 9 and 10 of the CO

46.This ground of appeal may be dealt with succinctly.

47.The complaint here is that insofar as the Chief Judge took into account the constitutionality of sections 9 and 10 of the CO would be in issue, he should have regard to the fact that the law on the approach to a constitutional challenge of a statutory provision is well established in Hong Kong and there is substantial experience in the local Bar in conducting such challenge. HKSAR v Lai Man Ling was cited again as showing that the constitutionality of sections 9 and 10 of the CO was in issue and the case was argued by Mr Pang.

48.The above submissions were made by the Bar Council and the Secretary to the Chief Judge, who did not agree with them.  He has taken into account the matters urged upon him and repeated on appeal by Mr Yu, but came to a different view that the analysis and determination of the constitutionality issue is “by no means simple or straightforward” and the court “will most likely need to consult the developments in other common law jurisdictions”^[33]. This is not a challenge on ‘Wednesbury’ grounds as invoked by Mr Yu.  There is no challenge that his view is plainly wrong.

3^rd ground of appeal – possibility of appeals

49.We do not think the third ground is a ground of substance.  The court may have regard to the possibility of the issues in the case (as opposed to the case itself) going up to the Court of Appeal and the Court of Final Appeal, and this is a facet of the question whether the determination of issues in the case might impact substantially on the development of Hong Kong law^[34].  The Chief Judge is entitled to take this factor into consideration having formed the view that the legal issues he identified as would arise at the trial are of great general public importance, that novel points may arise as this is the first prosecution brought under NSL 29(4) to be heard by the Court of First Instance, and that the constitutionality issue of sections 9 and 10 of the CO has yet to be determined by the Court of First Instance or above^[35].  In the present situation, we are inclined to think it would be better that all relevant legal issues are crystallised and presented to the best effect before the trial court rather than delayed till appeal.

50.Although this facet of public interest (that the determination of issues in the case is one involving important legal principles likely to end up in the Court of Final Appeal and might impact substantially on the development of the law) is a powerful factor in favour of admission, the difficulty or complexity of the arguments involved is still a material consideration.  The more complex or difficult the arguments, the more reason there is for granting the admission as a matter of public interest.  On the contrary, if the arguments are relatively straightforward despite the importance of the issues raised, it may not be in the public interest to grant the admission.  In short, the court’s discretion is exercised on the basis of the entire circumstances^[36]. As discussed earlier, we see no basis to differ from the Chief Judge on his assessment that the issues involved are of unusual difficulty and complexity. 

Conclusion and costs

51.The Chief Judge formed the view that this is a clear case for granting the ad hoc admission of Mr Owen in the trial of Mr Lai.  None of the grounds of appeal are made out.  There is no valid basis to interfere with the exercise of the judge’s discretion.  If we were to exercise the discretion afresh, we would have reached the same conclusion.  We would add this.  The forthcoming criminal trial is a high profile case attracting substantial publicity locally and abroad.  It involves the resolution of legal issues of great general public importance that would impact substantially on the development of NSL jurisprudence and sedition offences.  Public perception of fairness in the trial is of vital importance to the administration of justice.  The court must adopt a flexible and sensible approach to arrive at a decision that would best suit the public interest in this application.  It is clearly in the public interest to grant the application for admission on grounds of public perception as well as the other grounds that have been canvassed. 

52.For the reasons above, we dismiss the appeal.

53.We see no reason why the Secretary for Justice should not pay the costs of the applicant in this unsuccessful appeal.  We make an order nisi to this effect.  The assessment of costs will be conducted on paper on a gross sum basis.  The applicant is to submit a statement of costs within 14 days, with leave to the Secretary to serve a response within 7 days thereafter.

Mr Robert Pang SC, Mr Steven Kwan and Mr Ernie Tung, instructed by Robertsons, for the applicant (Respondent)

Mr Benjamin Yu SC and Mr Jenkin Suen SC, instructed by the Department of Justice, for the Secretary for Justice (Appellant)

Mr Bernard Man SC and Mr Jonathan Fung, instructed by Anthony Chiang & Partners, for the Bar Council of the Hong Kong Bar Association