The Legal Practitioners (Amendment) Bill 2023, passed in May, establishes that overseas lawyers wishing to represent clients in national security cases should obtain a certificate from the Hong Kong chief executive in advance. However, the incident that provoked the amendment raises another important issue: the helpfulness of citing overseas case law in the application of the National Security Law for Hong Kong (NSL).

     The courts have, from time to time, referred to precedents of other common law jurisdictions when adjudicating cases, but if the courts recognize that foreign case law provides negligible contributions to the application of laws that were formulated by the National People’s Congress (NPC), the incident could have been avoided. To prevent future controversies, it’s fundamental to explore the issue thereof.

     The incident that led up to the amendment was the application of a British lawyer, Timothy Wynn Owen KC, for ad hoc admission to represent Jimmy Lai Chee-ying in cases concerning national security. In deciding whether to admit the applicant, the Court of First Instance of the High Court applied the principles developed by the courts over the years, including, among other things, “whether the overseas counsel would add a significant dimension to the case”. In the judgment that granted Owen’s admission, the court anticipated that when the case proceeds, “the court will most likely need to consult the developments in other common law jurisdictions”, and “given Mr Owen’s undisputed expertise and experience as a specialist in criminal and human rights law, he will undoubtedly add a significant dimension to the case”. The Department of Justice (DoJ) appealed, and submitted that there is a “vast difference” between Hong Kong law and UK law, and that foreign legislative acts are “hardly relevant”. But the Court of Appeal (CA) disagreed. The DoJ appealed to the Court of Final Appeal (CFA) but was also dismissed, although on different grounds.

     If the courts recognize that foreign case law provides negligible contributions to the development of local jurisprudence on the application of the NSL, then the applicant would have failed the third test in the first place, which assesses “whether the overseas counsel would add a significant dimension to the case”, and therefore will not be admitted.

     According to Article 8 of the Basic Law, the common law system in Hong Kong shall be maintained, and Article 84 provides Hong Kong courts “may refer to precedents of other common law jurisdictions” when adjudicating cases. In addition, the CFA may as required invite judges from other common law jurisdictions to participate in the judicial processes under Article 82 of the Basic Law. 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”, as articulated by the renowned Australian jurist Sir Anthony Mason. This practice, to a certain extent, can produce jurisprudence of positive value to the development of local law — including among other things, patent cases, tax codes and labor laws — which is crucial for Hong Kong in maintaining its international financial-center status.

     Some people in the Hong Kong judiciary may in good faith believe that overseas jurisprudence enhances the development of certain elements in the Basic Law and the NSL. In the judgment granted by the CA discussed above, the court disagreed overseas jurisprudence could only be of limited assistance by asserting that “human rights have an international law dimension”, then stated that Article 4 of the NSL “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”. The judgment proceeded with concurring with the article of Sir Anthony Mason in that “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”, and then cited Article 5 of the NSL which “affirms the adherence to the principle of the rule of law while enforcing the law against offences endangering national security”. When the courts apply the Basic Law or the NSL to uphold human rights, fundamental freedoms or the rule of law, some would turn to “international standards”, hence overseas jurisprudence.

     It’s indeed essential that human rights, freedoms and the rule of law be safeguarded by law. Foreign courts adjudicate their cases based primarily on, among other things, their jurisdiction’s legal text, purpose, history and tradition, precedent, and related implications. When Hong Kong courts decide cases concerning the Basic Law or the NSL by giving a certain degree of weight to foreign judgments, the natural and reasonable effect is bounding the Basic Law or the NSL by foreign norms and values to that extent.

     The question then follows is whether constraining the Basic Law or the NSL, which was enacted by the NPC, by foreign norms and values, is a constructive practice. The chief justice of the US Supreme Court, John Roberts, responded to a similar question previously: “If we’re relying on a decision from a German judge about what our constitution means, no president accountable to the people would appoint that judge and no Senate accountable to the people would confirm that judge.” His observation is no less valid in present-day Hong Kong.

     Furthermore, the power of interpretation of the two laws is vested in the Standing Committee of the National People’s Congress (NPCSC). It’s self-evident that the NPCSC interprets the laws from its comprehension. If the courts were to read otherwise, it may trigger the mechanism for interpretation of the laws by the NPCSC for corrective measures. Therefore, to enhance the effectiveness of the judiciary, so far as it is possible to do so, the Basic Law and the NSL, which were enacted by the NPC and to be interpreted by its Standing Committee, should be read and given effect in a way that is compatible with the comprehension of the NPC, not foreign courts’ interpretation. This can be achieved through measures such as admitting expert mainland law evidence during court proceedings.

     Article 84 of the Basic Law provides that the courts of the HKSAR may refer to the precedents of other common law jurisdictions when adjudicating cases. The matter of when and how rests within the jurisdiction of the courts. It’s indisputable that comparative law offers obvious attractions for Hong Kong as it generates jurisprudence of great value to the development of local law, including, among other things, commercial law, which is fundamental for Hong Kong in maintaining its international financial center status. Thus it may be constructive for the courts to refer to overseas case law in this regard when necessary. However, when it comes to the Basic Law or the NSL, which was enacted by the NPC, it’s unhelpful to invite foreign norms and values to influence the application and enforcement of the two laws. Therefore when Hong Kong courts adjudicate cases concerning the Basic Law, the NSL, or other laws that were formulated by the NPC and listed in Annex III to the Basic Law, the power of referring to precedents of other common law jurisdictions should only be exercised in exceptional circumstances and with the utmost discretion.