Jailed pro-democracy media magnate Jimmy Lai, who is awaiting trial under a strict national security law, has launched a legal challenge against the Hong Kong government over its refusal of a work visa to his British barrister.
Lai, whose Next Digital media empire and its flagship Apple Daily newspaper were forced to close amid a national security investigation, will be tried on charges of "collusion with a foreign power" and others linked to "seditious publications."
His legal team filed a writ calling on the city's High Court to overturn a decision by the Committee for Safeguarding National Security not to grant barrister Timothy Owen the necessary visa to represent
In a separate writ, his legal team argued that if the committee is empowered to decide whether any judicial procedure is related to national security, the entire judicial system will collapse given the fact that the committee is not itself subject to any judicial review processes.
Last month, Lai's lawyers testified to the United Nations Human Rights Council in Geneva over ongoing criticisms and concerns about the Hong Kong and Chinese authorities' treatment of Lai.
China's National People's Congress ruled in December that top officials in the Hong Kong government have the power to bar foreign lawyers from representing clients in "national security" cases, after three failed bids in the city's courts to get Owen disqualified.
The Court of Final Appeal had ruled in favor of Lai’s application to engage Owen, but Chief Executive John Lee subsequently asked the National People’s Congress Standing Committee for an interpretation of the national security law regarding overseas lawyers’ participation in such cases.
Trial postponed
Lai's trial on several charges of "collusion with a foreign power" -- under a national security law imposed by the ruling Communist Party in the wake of the 2019 protest movement -- has been postponed until September 2023. He is currently serving a separate five-year, nine-month jail term for fraud over the subletting of office space at his Next Digital headquarters.
The dispute over Lai's hiring of British Kings Counsel barrister Tim Owen to lead his defense team, has highlighted concerns that Hong Kong's promised judicial independence is already rapidly eroding in favor of top-down control by an executive that takes orders from Beijing.
Much of the prosecution's evidence -- in a trial that will take place before a panel of government-appointment judges and no jury -- centers on opinion articles published in Lai's now-defunct Apple Daily newspaper.
The legal challenges came as the government introduced a bill in the city's legislature that would allow the chief executive to rule on whether foreign lawyers can be engaged in national security trials, Radio Television Hong Kong reported.
Power controlled by Communist Party
Current affairs commentator Sang Pu, who is a lawyer by training, said Lai is unlikely to win either legal challenge, but that the case could force the government to be more transparent about who decides what.
He called for an explanation of how the Committee for Safeguarding National Security was able to put pressure on the Immigration Department to deny Owen a work visa.
"Even if this challenge is successful ... the [authorities] could just call for the chief executive to issue a decision, and that would be the end of it anyway," Sang said.
"All the power is in the hands of the Hong Kong government, which is controlled by the Chinese Communist Party, so there is a limit to what Jimmy Lai can do about it," he said.
Justice Minister Paul Lam told lawmakers that it was legitimate, logical and reasonable to make Hong Kong's chief executive the gatekeeper on matters involving national security.
"We have to emphasize again that the bill has no adverse impact on the rule of law, the courts' independent judicial powers as guaranteed under the Basic Law, and the parties' right to choose their legal representation and the right to a fair trial," Lam claimed in comments reported by Radio Television Hong Kong.
Lam denied the changes would amount to a blanket ban on foreign lawyers taking cases under the national security law.
Freedom under attack
The move came as an overseas journalists' association described a recent exodus of Hong Kong journalists from the city amid a "severe crackdown on freedom of expression" under the national security law, which was imposed by Beijing in the wake of the 2019 pro-democracy movement.
The Association of Overseas Hong Kong Media Professionals estimated in a recent report that hundreds of former Hong Kong journalists are now living overseas, and that the number is growing.
The majority of exiled journalists interviewed for the report worked as reporters in Hong Kong, while more than one-third of them had more than 21 years’ experience in the industry.
"The overwhelming majority do not plan to return to Hong Kong in the near future, despite facing problems in their new homes," the group said in a press release attached to the report.
It said more than half of respondents are no longer working as journalists, although most would like to.
"Many have found a wide range of alternative employment in occupations ranging from car mechanic work, to floristry and employment as a barista," the report said, citing language barriers and other barriers to media jobs overseas.
It said many reported suffering from "burnout and in other cases trauma as a result of their experience in Hong Kong."
“Overall, this survey paints a picture of an exiled media community facing multiple challenges combined with a motivation to maintain the tradition of a free Hong Kong media, albeit in exile," group Chairman Joseph Ngan said.
Translated by Luisetta Mudie. Edited by Malcolm Foster.