The diminishing freedom in Hong Kong over the past few years has been characterized as “death by a thousand cuts”. Critics have been jailed, elections have turned into “patriots only” events, journalists have faced harassment, and hundreds of thousands of individuals have left.

This week, a subtle legal development has, according to some legal experts, inflicted another blow on the city’s once esteemed legal system.

On 17 March, Hong Kong’s Court of Final Appeal (CFA), the city’s highest court, dismissed an application from Jimmy Lai. The 77-year-old pro-democracy activist is now on trial for alleged national security offences – charges that could potentially result in a lifetime in prison. Despite the trial being underway, Lai’s legal team attempted to contest the decision that barred his preferred counsel, Tim Owen QC, from representing him.

The narrative behind this dispute goes back to 2022, when Owen was initially approved to defend Lai. The Hong Kong government contested Owen’s entrance, but their efforts to block him were unsuccessful in court. Consequently, Chief Executive John Lee sought assistance from Beijing. In December 2022, the Chinese government issued an interpretation of the national security law, which had been enforced in Hong Kong in June 2020 to quell pro-democracy protests. This interpretation mandated court approval from the Chief Executive for foreign lawyers representing defendants in national security cases.

Although Owen had already been permitted to represent Lai prior to the interpretation, Hong Kong’s national security committee nonetheless directed the immigration department to withhold his work permit.

“It’s almost unheard of for a lawyer entitled to represent a client to be refused a work permit,” comments Jonathan Sumption, a former supreme court judge who resigned from the CFA last year, indicating concern over the rule of law being “severely compromised” in Hong Kong. “I believe this reflects the executive’s viewpoint on the rule of law”. Sumption asserted that the visa denial for Owen was a “cover-up” by the government.

However, the core of Lai’s appeal wasn’t about the visa but that decisions made by the national security committee are beyond legal challenge, a principle causing concern within legal spheres.

Paul Harris SC, the former chair of the Hong Kong Bar Association who fled the city in 2022, suggested that this principle essentially grants the committee “authority akin to a police state”.

While the CFA did not provide a reason for rejecting Lai’s appeal this week, they did so under a rule typically reserved for applications deemed to have “no reasonable grounds” or considered “frivolous”.

“This is yet another blow to the rule of law,” said Michael C Davis, a former law professor at the University of Hong Kong. “The CFA missed an opportunity to rein in excessive national security claims and to clarify the limits, if any, of the committee’s immunity from review.”

Samuel Townend KC, until this year the chair of the Bar Council of England and Wales, stated that the CFA’s refusal to hear the appeal amounted to the court “washing its hands of any judicial oversight” of the national security committee.

Simon NM Young, a law professor at the University of Hong Kong, cautioned against overinterpreting the CFA’s decision. He pointed to an earlier ruling stating that the national security law explicitly aimed to shield certain decisions from legal challenges. He argued that by refusing to permit an appeal, the CFA may simply have determined that Lai’s specific claim lacked merit. “The question of whether decisions by the national security committee are subject to judicial review remains open,” Young remarked.

For Lai, this is the end of this legal battle. He will be unable to instruct his chosen lawyer in future proceedings. With his national security trial expected to run until autumn and further appeals expected if he is found guilty, there may be more to come.

Hong Kong’s judiciary did not respond to a request for comment.