Complainant:  Chi-Sang Poon, PhD, Founder and Editor-in-Chief, Hong Kong Rule of Law Initiative (HKROLIN)

Against: The Honourable Chief Justice Andrew Cheung, The Honourable Mr Justice Ribeiro, The Honourable Mr Justice Fok, The Honourable Mr Justice Lam

Date: 12 August 2025

Joinder: Complaint #2 (Ref. No.: (8) in LM (5) to JUD SCJC 1-70/3 Pt.97, filed 15 April 2024) and Annex 2 (filed 03 September 2024)

I. Cause for Complaint

1. This Complaint joins and supplements Complaint #2 (filed 15 April 2024) and Annex 2 (filed 03 September 2024), which together allege that the Court of Final Appeal (CFA) Appeal Committee failed to uphold judicial independence in the face of political overreach by the Standing Committee of the National People’s Congress (NPCSC) and the Committee for Safeguarding National Security of the HKSAR (NSC).

2. The interference originated in Secretary for Justice v. Timothy Wynn Owen KC [2022] HKCFA 23 (“Owen case”), and culminated in Lai Chee-Ying v. Secretary for Justice [2023] HKCFI 1382. In the latter, the NSC’s denial of a visa for Mr Owen—citing an NPCSC interpretation issued after the Owen case—effectively nullified the CFA’s prior approval and compromised Mr Lai’s right to a fair trial.

3. Procedural Background

• 15 March 2024 – Open letter submitted to the Chief Executive (copied to the CFA), challenging the constitutionality of the then-proposed section 112(3) of the Safeguarding National Security Ordinance (SNSO) under Basic Law (BL) articles 4, 19, and 22(1).
• 15 April 2024 – Complaint #2 filed, with the 15 March letter as Annex 1. It detailed the ambiguous and non-binding nature of the NPCSC’s 2022 interpretation of the Hong Kong National Security Law (HKNSL), the NSC’s ultra vires conduct, and the CFA Appeal Committee’s failure to defend judicial independence.
• 27 May 2024 – Open letter addressed to CFA’s overseas non-permanent judges (NPJs), urging en banc review of Complaint #2 and related Complaint #1. Justices Sumption, Collins, and McLachlin resigned shortly thereafter (6–10 June 2024).
• 10 June 2024 – Lord Sumption published a Financial Times article warning of grave threats to the rule of law from sedition misuse and NPCSC overreach, echoing the concerns raised in Complaints #1 and #2.
• 11 June 2024 – HKSAR Government issued a press release defending the NPCSC’s interpretive authority.
• 03 September 2024 – Annex 2 filed, rebutting the Government’s position. It argued that the 2022 NPCSC interpretation was non-binding under HKNSL article 65, unconstitutional under BL article 22(1), and incompatible with Annex I of the Sino–British Joint Declaration as implemented by BL article 35 and related ordinances.
• 17 March 2025 – In FAMV103/2024 (Lai Chee-Ying v. NSC, Director of Immigration & Secretary for Justice), the CFA Appeal Committee (Ribeiro PJ, Fok PJ, Lam PJ) dismissed a leave application raising three constitutional questions arising from the Owen case. The Committee offered no reasoning beyond the formulaic assertion that the application “discloses no reasonable grounds for leave to appeal.”

4. Despite being formally notified of all prior filings and fully aware of the NPJs’ resignations and public warnings, the CFA remained unmoved and nonresponsive. The Committee’s unexplained dismissal perpetuates the misconduct identified in Complaint #2 and Annex 2, and constitutes a wilful abdication of constitutional duty.

II.  Appeal Committee’s Positive Obligation to Safeguard Rights and Uphold Judicial Independence

5. As the apex court of the HKSAR, the Court of Final Appeal (CFA) bears ultimate responsibility for safeguarding the Basic Law and protecting rights guaranteed under BL article 4, HKNSL article 4, and article 11 of the Hong Kong Bill of Rights (BOR)—which incorporates ICCPR article 14 via BL article 39.

6. In Ng Ka Ling v. HKSAR (1999) 2 HKCFAR 4, paras 59–80, the CFA affirmed its positive obligation to “give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.”

7. Rule 7(2) of the Court of Final Appeal Rules (Cap. 484A) permits summary dismissal of leave applications “as the justice of the case may require.” This discretion, however, is constrained by BL article 11(2) and must not be exercised where live constitutional or rights issues are in play.

8. In such cases, the Committee’s gatekeeping obligations require:

• Automatic satisfaction of leave criteria under Cap. 484 where explicit constitutional questions are raised, unless clearly resolved by binding precedent.
• Proactive identification of constitutional issues apparent on the record, with sua sponte referral for full CFA review even absent express leave grounds.
• Reasoned engagement with challenges to precedent, enabling reconsideration by the full court where warranted.
• Active defence of judicial independence, including response to conduct amounting to contempt of court or institutional compromise.

9.  By failing to apply these principles in FAMV103/2024, the Appeal Committee abdicated its constitutional mandate, undermined judicial independence, and denied residents the rights and protections to which they are entitled.

III. Outstanding Constitutional and Rights Issues

10.  The unresolved issues raised in Complaint #2 and Annex 2—directly engaged in FAMV103/2024—include:

• Unconstitutionality of SNSO section 112(3): Entrenchment of NSC supremacy violates BL articles 4, 19, and 22(1).
• Ultra vires conduct by the Chief Executive, NSC, and Director of Immigration: As a Central People’s Government (CPG) organ, the NSC is prohibited from interfering in HKSAR affairs under BL article 22(1).
• Non-binding nature of the 2022 NPCSC interpretation: HKNSL article 65 does not confer binding effect under BL article 158(3). The interpretation cannot retroactively override [2022] HKCFA 23.
• Contempt of court: The visa denial for Mr Owen defied the CFA’s final adjudication in [2022] HKCFA 23, breaching BL article 158(3).
• Breach of the Sino–British Joint Declaration Annex I: Denial of foreign counsel infringes BL article 35 and BOR article 11(2)(d).
• Violation of Jimmy Lai’s fair trial rights: The denial of counsel of choice under BL article 35 and BOR article 11(2)(d)—despite prior CFA approval—renders HCCC 51/2022 fundamentally unfair.

IV.  Prayer for Relief

11.  The Complainant respectfully requests that the Court of Final Appeal:

      A.  Declare that SNSO section 112(3) is unconstitutional under BL articles 4, 19, and 22(1).

      B.  Declare that the Chief Executive, NSC, and Director of Immigration acted ultra vires and in contempt of court by overriding the CFA’s final decision in the Owen case.

      C.  Declare that Jimmy Lai’s trial in HCCC 51/2022 is unfair under BL article 35, BOR article 11(2)(d), and Annex I of the Sino–British Joint Declaration, due to unconstitutional NSC interference preventing representation by approved foreign counsel of his choice, and order a permanent stay of proceedings.