Although the US Consul General in Hong Kong, Gregory May, assumed office on Sept 17, 2022, he appears to have done little to acquaint himself with its constitutional arrangements, let alone its legal system.
While on a duty visit to the US, he spoke about Hong Kong, on Jan 25, 2023, at a forum organized by the Center for Strategic and International Studies, a Washington-based think tank. Instead, however, of explaining how well Hong Kong’s legal arrangements operate, he chose to misrepresent them, which was deeply disappointing for someone who might have been expected to show some loyalty to the city in which he now lives.
Although governments throughout the common law world traditionally respect judicial and prosecutorial independence, May called on the “mainland and Hong Kong authorities to release immediately and drop all charges against individuals unjustly detained in Hong Kong”. As this, presumably, includes not only people who have been convicted by the courts, but also those who are awaiting trial for grave offenses, May is obviously living in cloud cuckoo land.
As the authorities in the Chinese mainland have nothing to do with criminal prosecutions in Hong Kong, let alone with the situation of convicted felons, May’s call for them to interfere is irresponsible in the extreme, and a violation of the “one country, two systems” principle. His call for the authorities in both places to involve themselves in ongoing public prosecutions is not only deeply offensive, but could amount to the offense of attempting to pervert the course of public justice (conduct incompatible with his diplomatic status, as the Chinese foreign ministry has hopefully noted).
What this means, therefore, is that May’s call for the authorities in both the Chinese mainland and Hong Kong to interfere with the independent decisions of the Department of Justice’s prosecutors is not only contemptuous of the Basic Law, but also an affront to the international guarantees to which his own country, through its IAP membership, also subscribes
In Hong Kong, as in the US, the government does not interfere with prosecutorial decisions or the conduct of public prosecutions, yet May wanted the authorities to do exactly that. If he had bothered to study the Basic Law, he would have known that prosecutorial independence is constitutionally guaranteed, and it stipulates that the department of justice “shall control criminal prosecutions, free from any interference” (Article 63).
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Although, moreover, the departments of justice of both the US and Hong Kong belong to the International Association of Prosecutors (IAP), May has sought to trample underfoot the protections that are guaranteed to prosecutors everywhere by the international protocols. Whereas the United Nations, in 1990, adopted its “Guidelines on the Role of Prosecutors”, which requires states to ensure that prosecutors can perform their professional functions “without intimidation, hindrance, harassment, (or) improper interference”, the IAP’s “Statement of the Essential Duties and Rights of Prosecutors” (1999) stipulates that the exercise of the prosecutorial discretion shall “be free from political interference’’.
What this means, therefore, is that May’s call for the authorities in both the Chinese mainland and Hong Kong to interfere with the independent decisions of the Department of Justice’s prosecutors is not only contemptuous of the Basic Law, but also an affront to the international guarantees to which his own country, through its IAP membership, also subscribes.
When he returns, therefore, May will hopefully study the Basic Law, and also try to understand how prosecutors operate in Hong Kong. The secretary for justice will undoubtedly be happy to provide him with a copy of the Prosecution Code, which explains how prosecution decisions are taken. If he takes the time to read this, he may be none the wiser, but he will at least be better informed (as also will his political masters).
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He will, for example, learn that prosecutors only institute prosecutions if the evidence affords a reasonable prospect of conviction, and if it is in the public interest. Once a suspect is charged, he will only be convicted at court if, as in other common law jurisdictions, prosecutors can prove guilt beyond a reasonable doubt. If, to coin May’s phrase, a suspect is “unjustly detained”, a conviction will be impossible, and independent judges or jurors will acquit the suspect.
It is, unfortunately, not only the Basic Law, the UN Guidelines, the IAP Statement and the Prosecution Code that May, in his eagerness to tarnish Hong Kong, has chosen to disregard.
If he had studied the latest World Justice Project’s Rule of Law Index (the world’s leading source of independent data on the rule of law), published on Oct 26, 2022, he would have known that Hong Kong was very highly ranked among the 140 countries and jurisdictions surveyed. Instead of trumpeting this achievement in Washington DC, as any true friend of Hong Kong would have done, he concealed it altogether, just as he did the actual rankings. Whereas Hong Kong was ranked 22nd, the US was well behind, in 26th place, and this information would clearly have fascinated May’s audience, although it would have exposed his myth-making.
As if this was not bad enough, May also waded into other areas with which he was clearly unfamiliar. He complained that the National People’s Congress Standing Committee’s interpretation of the National Security Law for Hong Kong (NSL), insofar as it decided that it was for the Hong Kong authorities to determine if overseas lawyers should be allowed to conduct national security cases, “could further undermine the independence of Hong Kong’s judicial system”. Although this undoubtedly played well with those who like to think badly about Hong Kong, there must have been at least some in his audience who would have valued an accurate portrayal of the situation.
What May conspicuously failed to tell his listeners was that the US, like Australia, Canada, the UK and New Zealand, does not allow overseas lawyers to fly in to participate in its criminal cases, let alone those involving national security. He also made no attempt to explain that any limitations on overseas lawyers appearing in Hong Kong courts will be confined to national security cases, which are of a particular sensitivity everywhere, and will not extend to other types of cases. In the US, criminal suspects choose their lawyers from the pool of those who are professionally qualified stateside, and there can be no possible objection to Hong Kong having the same arrangement in national security cases, although nobody listening to May would have appreciated this.
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Instead, therefore, of explaining Hong Kong’s unique positioning under the “one country, two systems” principle, May chose to put the boot into the city, presumably imagining this is what his employers in the US State Department expected of him.
Although, moreover, the World Trade Organization ruled last December that the US policy of banning the “Made in Hong Kong” label on goods produced in the city and exported to America was in violation of the trade body’s rules, May did not call upon the US authorities, given their supposed adherence to the “international rules-based order”, to honor the ruling, instead of which they have, to Hong Kong’s detriment, ignored it.
Although May had a golden opportunity to stand up for Hong Kong and promote its interests, he behaved instead like a callow careerist, pandering mindlessly to the anti-China lobby.
When May’s predecessor, Hanscom “Candle Lighter” Smith left Hong Kong in mid-2022, many people clapped their hands. A grandstander of the worst sort, he achieved nothing during his 3-year tenure, stoked tensions at every opportunity, and, as a State Department apparatchik, was incapable of exercising independent judgment on any issue.
With the arrival of May, who previously served in the US missions in Beijing and Guangzhou, there were hopes that integrity would return, and that Hong Kong would have a friend (if not a bosom buddy) in Garden Road. Those hopes, however, have been shaken by his fatuous performance in Washington DC, but it is still early days.
If May can get on top of his portfolio and broaden his horizons, there may still be hope. After all, even the most fanatical careerists are not always incorrigible, and can sometimes locate their inner decencies. If, indeed, he can pull himself together, there is no reason to suppose that his legacy will be as reviled as that of Hanscom Smith.
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