Media mogul Jimmy Lai, founder of Next Digital, had his application for judicial review dismissed by Chief Justice Andrew Chan in the High Court. Lai’s request was based on allegations that the Immigration Department had denied a visa to Tim Owen on the advice of the National Security Commission, exceeding its powers under the National Security Law. On the 16th, Lai’s appeal for permission to appeal was also rejected by the High Court.
Lai was represented by senior counsel Martin Lee in the appeal, while the respondents included the National Security Commission, the Director of Immigration, and the Secretary for Justice, designated as an interested party with former Secretary for Justice and senior counsel Rimsky Yuen as their representative. The case was presided over by Deputy Chief Judge Kimberley Kwok, Justice Chu Fan Ling, and Judge Au Hing Cheung.
During the hearing, Lee argued that although Article 14 of the National Security Law states that decisions of the National Security Commission are not subject to judicial review, this provision is considered a “deprivation of jurisdiction” clause. Hong Kong exercises common law and is protected under the Basic Law. The court still retains jurisdiction through judicial review to address issues of exceeding authority. Lee also suggested that legal experts from the mainland should interpret the law.
Lee pointed out that while statutory provisions can limit the right to seek judicial review, citizens still have the right to challenge in court. This is not only common law but also a right guaranteed under the Basic Law; moreover, the National Security Law itself emphasizes the rule of law.
Lee further argued that according to Article 47 of the National Security Law, the power to issue certificates belongs to the Chief Executive, not the National Security Commission. Therefore, the Commission’s recommendation to deny Tim Owen’s visa falls outside its jurisdiction.
During the proceedings, Judge Kimberley Kwok repeatedly interrupted Lee, focusing on the interpretation of Article 14 of the National Security Law and questioning his understanding of it. She believed that the wording of the relevant provisions and the interpretations by the National People’s Congress Standing Committee were clear, requiring no further assistance from mainland experts or alternative interpretations by the court.
When Yuen spoke, he emphasized that the National Security Law aims to address the loopholes in the Basic Law concerning national security. Article 14 of the National Security Law explicitly states that decisions of the National Security Commission are not subject to judicial review.
After deliberation, the three judges concluded that Article 14 and its interpretations were clear, leaving the court with “no other choice” but to reject Lai’s application for permission to appeal. The court also granted the government’s request for a costs assessment, with a ruling expected within three months.
Case Number: CACV166/2023