On February 16, nine defendants, some high-profile, and including Jimmy Lai Chee-ying, Martin Lee Chu-ming, and Leung Kwok-hung, will appear for their 10-day trial in the District Court (DCCC 536/2020). They are jointly charged with two offenses, one of organizing an unauthorized assembly, and the other of participating in an unauthorized assembly. Under the Public Order Ordinance (Cap.245), the maximum sentence for these offenses is 5 years’ imprisonment (Sect.17A).
The offenses allegedly occurred on August 18, 2019, following an authorized assembly in Victoria Park. The prosecution is expected to assert that the defendants defied a police objection, and embarked upon an unauthorized march from Causeway Bay to Central. Although the case seems factually simple, it is likely that major constitutional issues will be raised by the defense at trial, not least because several of the defendants are legally qualified.
The Department of Justice, having regard to the significance of the case and its sensitivity, has decided to put its best foot forward. On January 12, it invited the Court of First Instance to approve the admission of an eminent British Queen’s Counsel (QC), David Perry, so he could lead the prosecution team. Overseas barristers are sometimes admitted on an ad hoc basis to conduct particular cases, invariably in situations where the local courts will benefit from their expertise.
In recent times, Perry has established a formidable reputation, with an international profile. Apart from his London practice, which includes appearing before the Supreme Court and the Judicial Committee of the Privy Council, he has also represented the British government in the European Court of Human Rights, and conducted cases in the Bahamas, the Cayman Islands, Gibraltar and Northern Ireland. In Hong Kong, moreover, he has prosecuted the former chief executive, Donald Tsang Yam-kuen, for misconduct in public office, the former chief secretary, Rafael Hui Si-yan, for bribery, the feng shui master, Peter Chan Chun-chuen, for forgery, and the “milkshake murderer”, Nancy Kissel, and he has also appeared in the Court of Final Appeal. So, as a man who knows the city, and understands its legal system, he is an inspired choice.
In deciding to admit Perry, the Chief Judge of the High Court, Jeremy Poon Shiu-chor, said the case involved the issues of, on the one hand, protecting the fundamental freedom of assembly, and, on the other, regulating the manner and exercise of that freedom under the statutory control regime. These constitutional issues, he said, would “have a real and significant impact on the exercise of the freedom of assembly in the future”, and were of “great and general importance to the development of local jurisprudence”. In these circumstances, he concluded, the public interest was best served by ensuring the prosecution had the best team possible, provided it did not jeopardize the development of the local legal profession, which was not the case.
Although, therefore, criminal justice will clearly benefit from Perry’s admission, this was not how Hong Kong’s detractors saw it. A squalid campaign was immediately launched by anti-China forces, designed to pressurize Perry into withdrawing from the case. The chairman of the UK House of Commons Foreign Affairs Committee, Tom Tugendhat, said “we all need to ask when the law stops being an instrument of justice and becomes the tool of tyrants”, which should surprise nobody. He also chairs the China Research Group, which campaigned for an end to Huawei’s involvement in the UK’s 5G network, and he has called for the arrangement whereby British judges sit in the Hong Kong Court of Final Appeal to be reviewed.
Tugendhat’s fellow parliamentarian, the former transport minister, Lord (Andrew) Adonis, sought to shame Perry by inquiring “where are the ethics of the English legal profession going?” Meanwhile, from Hong Kong Watch, the propaganda outfit of which the former governor, Chris Patten, is patron, Luke Pulford, a functionary, described Perry’s decision as “an utter disgrace”, and, for good measure, a “humiliation for the UK”. This gibberish was then compounded by the journalist, Charles Moore, who, writing in The Daily Telegraph (January 16), sarcastically remarked that the Hong Kong government was “honored” to be represented “by a British QC to prosecute the businessman Jimmy Lai under its new anti-subversion law”. Unfortunately for his readers, Moore was even mistaken over the actual charge, which involves an unauthorized assembly, contrary to the long-standing public order law, and has nothing to do with subversion.
Although it is unclear if the UK’s former justice secretary, Lord (Charles) Falconer, shares Moore’s ignorance of the charges, he nonetheless said Perry “must withdraw”, as he would be prosecuting “well-known democracy campaigners”, and he needed to “remain consistent with the values of the UK”. Eager not to be left out, the chairwoman of the International Bar Association’s human rights institute, Baroness (Helena) Kennedy, went further, claiming that Perry’s decision to prosecute the case “will become a source of shame”. This, of course, was absurd, and, if Kennedy had any real concerns over the case, these should have been laid to rest once the prosecution was placed in the hands of a renowned British QC. In the best traditions of the English Bar, Perry will be scrupulously fair at trial, and objective observers will welcome his involvement.
Unlike Tugendhat and Adonis, however, Falconer and Kennedy are not simply political hacks, but prominent lawyers, which makes their remarks all the more unfortunate. As they should know, the International Covenant on Civil and Political Rights applies in Hong Kong, through the Basic Law (Art.39), and this protects the fundamental rights of criminal suspects, although they are not absolute. Thus, the right to free assembly is protected, although lawful restrictions are permissible, if necessary, in the interests of “public order”, or the “protection of the rights and freedom of others” (Art.21). Like many other places, Hong Kong, while respecting peaceful protests, imposes restrictions when the police anticipate, on reasonable grounds, that, for example, traffic will be disrupted or conflict will erupt.
When, therefore, as allegedly happened on August 18, 2019, protesters, having attended an authorized assembly in a park, chose unilaterally to embark upon an unauthorized assembly on a public road, they were asking for trouble, and must face the consequences. This, however, has nothing to do with persecuting what Falconer calls “pro-democracy campaigners”, and is about prosecuting people suspected of deliberately flouting the law. After all, in Hong Kong, as in the UK, nobody is above the law, and suspected lawbreakers will be prosecuted, evidence permitting, even if they have big-name allies elsewhere. Quite clearly, as Falconer and Kennedy should appreciate, the rule of law demands no less.
As for Perry, he is no shrinking violet, and he will undoubtedly stand up for himself. He will, nonetheless, be disturbed to have read, in The Times (January 14), that “senior sources in the foreign office indicated that there was deep unease at Mr Perry’s decision, which is being examined closely by the department”. Although the foreign office, under Dominic Raab’s leadership, has lurched into a confrontational China policy, even suspending the UK-Hong Kong fugitive offender surrender agreement, it will, hopefully, still have the good sense not to beat up on a distinguished British QC, who is simply upholding criminal justice.
But let nobody be under any illusions, for the city’s legal system is under existential threat from hostile forces. Just last summer, for example, there was orchestrated political pressure on overseas judges to resign from the Hong Kong Court of Final Appeal, but, to their credit, none of them buckled. In particular, the former chief justice of Canada, Beverley McLachlin, who probably faced the greatest pressure, bravely stood her ground, declaring “it’s a wonderful court”. Perry is undoubtedly cut from the same cloth, and everybody who cherishes the city’s rule of law will wish him well.
The author is a senior counsel, law professor, and criminal justice analyst, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
