On Nov 25, 2022, the Appeal Committee of the Hong Kong Court of Final Appeal assembled to hear the Secretary for Justice’s application for leave to appeal against a decision of the Court of First Instance to admit UK-based barrister Timothy Owen, a London-based King’s Counsel (KC), to represent the media magnate, Jimmy Lai Chee-ying, who is charged with endangering national security and publishing seditious content.
As they took their seats, the judges were confronted by three high-powered legal teams, albeit of different sizes. Whereas the Secretary for Justice was represented by Rimsky Yuen Kwok-keung Senior Counsel (SC) and Martin C.H. Ho, the Hong Kong Bar Association retained Jat Sew-tong SC and Jonathan Fung. As for Lai, he was represented by a galaxy of talent, comprising Robert Pang SC, three junior barristers, Steve Kwan, Ernie Tung and Colman Li, and Robertsons, a solicitors firm.
Although it is not known why Lai fielded four barristers on a leave application, it could well have been five, if the current team leader, Owen, had also been present. Barristers, of course, do not come cheaply, but a decision had clearly been taken to spare no expense. In any event, the Appeal Committee dismissed the Secretary for Justice’s application without much ado, pointing out that fresh arguments were being advanced by Yuen that should have been raised earlier, and Lai’s team had little to do.
Although Lai’s fate is in the hands of his Hong Kong lawyers, another legal team has mysteriously sprung up in the UK. While they call themselves Lai’s “international legal team”, they are not actually involved in his legal proceedings. They are led by Caoilfhionn Gallagher KC, and include three junior barristers, Jonathan Price, Jennifer Robinson and Tatyana Eatwell, and they all come from the Doughty Street Chambers, in London, which is revelatory.
One of its leading lights is Baroness (Helena) Kennedy KC, a bastion of the anti-China movement who was sanctioned by Beijing in 2021. When the Hong Kong Watch patron, Sir Geoffrey Nice Queen’s Counsel (now KC), chaired his now infamous “Uyghur Tribunal” in 2021, he signed Kennedy up as its “External Advisor”, and, as always with a kangaroo court, it duly “convicted” China of “genocide” in its Xinjiang region.
Doughty Street Chambers is also home to none other than Paul Harris SC, who, within hours of being interviewed by the police force’s national security division, fled Hong Kong in early 2022. He is best remembered for his short-lived chairmanship of the Hong Kong Bar Association in 2021-22, which was marred by his ill-judged criticisms of the National Security Law for Hong Kong and the Hong Kong Police Force.
Although it is not known how much contact, if any, Gallagher has had with Timothy Owen, whose chambers are nearby, there is likely to have been some. Over the years, Owen has conducted several cases in Hong Kong, and he will hopefully have warned Gallagher that she is on a hiding to nothing. Owen will know that the Judiciary in Hong Kong, which includes British judges, is fiercely independent, and utterly impervious to outside pressures of the sort that Gallagher is trying to galvanize.
When, on Feb 7, 2022, Gallagher, in a blaze of publicity, announced that she would act as Lai’s “international counsel”, she did not reveal who was briefing her. Although people naturally assumed that it must be Robertsons, Lai’s Hong Kong solicitors, this was not the case. On Jan 13, 2023, in an extraordinary twist, Robertsons announced that none of Lai’s legal advisers in Hong Kong was “in any way professionally associated with the ‘international legal team’ in relation to Mr Lai’s legal proceedings”, and they acted “exclusively” for him in his criminal proceedings. In other words, Robertsons wanted to avoid any possibility of guilt by association, and it is not hard to see why.
When Gallagher announced her appointment, she said, “I and my team will pursue all available legal remedies to vindicate Mr Lai’s rights, and to defend press freedom and the rule of law in Hong Kong.” Although this was simply hot air, she obviously realized that those instructing her expected action. She has, therefore, staged various publicity stunts, rubbing shoulders in the process with some of the most unsavory elements in the global anti-China movement, including Hong Kong Watch, the propaganda outfit founded by Benedict Rogers, the serial fantasist.
If Gallagher and her team have sought from afar to interfere with ongoing judicial proceedings in Hong Kong, this could amount to an attempt to pervert the course of public justice, and the police force may want to examine the evidence. If, moreover, they have tried to besmirch judges and prosecutors and to tarnish the rule of law in Hong Kong, this could amount to disreputable conduct, and the Hong Kong Bar Association may wish to lodge a formal complaint with the Bar Association of England and Wales
On April 8, 2022, Gallagher’s team, having tipped off the media, filed an “urgent appeal” on Lai’s behalf with the United Nations. It addressed what it called “the legal harassment against him and his imprisonment in Hong Kong” (for involvement in unauthorized assemblies), in violation of his “internationally protected rights to freedom of expression, freedom of assembly, and the right to peaceful protest”. Gallagher called on the UN’s “experts” (meaning its special rapporteurs), to “consider all the cases against him”, claiming they constituted “prosecutorial, judicial and legal harassment”. She alleged Lai was facing “a barrage of spurious cases”, and that the “Hong Kong and Chinese authorities are weaponizing the law against him.”
Although the UN realized what was afoot and buried Gallagher’s “urgent appeal”, what was remarkable about it was not so much the allegations it contained as its failure to disclose relevant matters (“material non-disclosure” in legalese).
The UN was not advised, for example, that, under Hong Kong’s Basic Law, the International Covenant on Civil and Political Rights (ICCPR) applies in Hong Kong (Article 39), and that the Court of Final Appeal has upheld the constitutionality of the law which criminalizes unauthorized assemblies and creates a notification scheme (FACC 1/2005). Although Gallagher sought to sensationalize Lai’s convictions for participating in an unauthorized assembly, she, as a member of Doughty Street Chambers (which calls its breadth of practice “unique”), should have known that, under the ICCPR, reasonable restrictions prescribed by law are permissible on the right of peaceful assembly, as where, for example, they are necessary in the interests of public safety, public order or public health, and it was Lai’s blatant disregard of these factors that created his predicament.
Having got nowhere with the UN, Gallagher, in desperation, then switched her focus to the United States (and its allies). On Sept 14, 2022, she said it was “a key time for the US to ensure that this case is raised as a very high priority bilaterally in engagement with Hong Kong and China”. Her team’s objective, she explained, was to get foreign governments to convince the Chinese authorities to drop the charges against Lai.
In other words, Gallagher wanted foreign powers to interfere directly with the independent decisions Hong Kong’s professional prosecutors have taken in good faith concerning Lai, thereby sabotaging the criminal justice system. This, coming from a King’s Counsel, beggared belief, not least because people like her should be defending, not undermining, the rule of law in a major common law jurisdiction like Hong Kong. Indeed, in 2021, Hong Kong, given its “strong adherence to the rule of law”, was ranked 19th by the World Justice Project’s Rule of Law Index out of the 139 countries and jurisdictions surveyed, and this was well ahead of, for example, the US, which came in at 27th.
On Oct 26, 2022, after Lai had been convicted of two fraud offenses in the District Court, Gallagher moved into top gear. At an event hosted by her chamber mate, Helena Kennedy KC, in the House of Lords, the upper house of Britain’s Parliament, she claimed Lai had been convicted on “trumped-up charges”, which was music to the ears of the assembled Sinophobes. They included the parliamentarian, Sir Iain Duncan Smith, who, like Kennedy, was sanctioned by China in 2021, and Hong Kong Watch’s senior patron (and former governor), Lord (Chris) Patten, who was in his element, declaring “I hope we make a fuss about (Lai), and continue to do so”. When a message from Lai’s son, Sebastian, was read out, in which he condemned the Communist Party of China and called on “the UK government to protect him and secure his freedom”, Gallagher, Kennedy, Duncan Smith and Patten were reportedly ecstatic, not that any of this, given Hong Kong’s independent Judiciary, would be any benefit to Lai (as Gallagher well knew).
On Dec 12, 2022, when Lai was sentenced for his fraud offenses by a highly experienced judge, Stanley Chan Kwong-chi, Gallagher’s team said it “condemns today’s sentence and calls for the UK government to take immediate robust action to secure his release ahead of his upcoming National Security Law trial”. It did not, however, indicate what “robust action” it envisaged, although it may have had in mind the dispatching of a gunboat. In the event, the British government avoided any precipitate gestures, presumably realizing that, if Lai was as aggrieved over his convictions as Gallagher, he could challenge them in the Court of Appeal. The US State Department, however, was less restrained, fatuously complaining about “spurious fraud charges”.
Although Gallagher has twice requested meetings with two consecutive UK foreign secretaries, the first was rejected while the second was ignored. She has now asked the prime minister, Rishi Sunak, for a meeting, saying she wants to discuss “potential ways to secure Mr Lai’s release”. Although nothing came of this, she was fobbed off with a meeting, on Jan 10, with a junior foreign office minister, Anne-Marie Trevelyan. Although Trevelyan made some sympathetic noises, pointing out that the UK had provided Lai with support “for some time” (a reference to the consular services which are always provided to British passport holders detained in foreign places), she refused to let Gallagher lead her up the garden path, and certainly did not try to intimidate the Hong Kong Judiciary.
Given Gallagher’s tactics, it is little wonder that Robertsons, a reputable law firm of global standing, has distanced itself from her, and confirmed that Lai had not instructed her. This, however, begs the question of who, if not Lai, is calling the shots. Is it Hong Kong Watch? Or Stand with Hong Kong? Or the Hong Kong Democracy Council? Or the Committee for Freedom in Hong Kong Foundation? Or the National Endowment for Democracy? If, as seems likely, Gallagher will not spill the beans, an investigative journalist will hopefully get to work.
If Gallagher and her team have sought from afar to interfere with ongoing judicial proceedings in Hong Kong, this could amount to an attempt to pervert the course of public justice, and the police force may want to examine the evidence. If, moreover, they have tried to besmirch judges and prosecutors and to tarnish the rule of law in Hong Kong, this could amount to disreputable conduct, and the Hong Kong Bar Association may wish to lodge a formal complaint with the Bar Association of England and Wales.
Instead of acting like an “independent legal team”, Gallagher and her chamber mates have behaved throughout like a gaggle of noisy prima donnas. They have fired off ill-judged salvos in all directions, and shared platforms with notorious ideologues. They cannot seriously have imagined this would benefit Lai, and it is little wonder that Robertsons wants nothing to do with them.
Once his national security trial starts, Lai will enjoy the protections traditionally available to suspects at trials in common law jurisdictions, including the presumption of innocence and the right of defense. He will be entitled to the fair trial guarantees contained in the ICCPR, which has been incorporated into the National Security Law for Hong Kong, and which states “human rights shall be respected and protected in safeguarding national security in the Hong Kong SAR” (Article 4). He will, moreover, only be convicted if, as in the UK, his guilt is proved beyond a reasonable doubt, and no amount of grandstanding by the likes of Gallagher can prevent the wheels of justice from turning in the time-honored way.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS