Published: 01:31, February 2, 2021 | Updated: 02:53, June 5, 2023
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Hong Kong Law Society: Upholding criminal justice and setting an example
By Grenville Cross

In January, after it emerged that a British barrister, David Perry QC, had been briefed by the Department of Justice to prosecute a public order case in Hong Kong, he was subjected to an unprecedented campaign of political intimidation in his own country. This was designed to secure his withdrawal from the case, and it made a mockery of traditional British notions of fair play. What compounded the abuse was its orchestration by legal professionals, who, despite also being politicians, should still have known right from wrong.

The case involves nine defendants, including Jimmy Lai Chee-ying, Martin Lee Chu-ming, and Margaret Ng Ngoi-yee, who are accused of engaging in an unauthorized assembly on August 18, 2019. At the trial, which starts on February 16 in the District Court, the prosecution will argue that, following an approved meeting in Victoria Park, on August 18, 2019, the defendants, in defiance of police objections, embarked upon an unauthorized march from Causeway Bay to Central. They have been jointly charged with two offenses contrary to the Public Order Ordinance, one of organizing an unauthorized assembly, and the other of participating in it.

As the case is expected to involve complex constitutional and human rights issues, Perry was retained, given his expertise in these areas. The defendants themselves have hired some highly experienced barristers to represent them, including Paul Harris SC, the new chairman of the Hong Kong Bar Association. Although, therefore, Perry’s retention was eminently sensible, there was an immediate reaction against him, led by prominent politicians.

On January 16, when interviewed by Sky News’ Sophy Ridge, the UK Foreign Secretary, Dominic Raab, a lawyer himself, chose to malign Perry, in a scurrilous fashion. He accused the distinguished barrister of behaving in “a pretty mercenary way”, and providing the Chinese government with “a public relations coup”. As to the basis of his ugly slur, Raab claimed he could not understand “how anyone of good conscience, from the world-leading legal profession that we have, would take a case where they will have to apply the national security legislation at the behest of the authorities in Beijing, which is directly violating, undermining the freedom of the people of Hong Kong”.

The Law Society pointed out that, under the Basic Law, the Department of Justice is vested with the control of criminal prosecutions, free from any interference (Art.63), and that this must be respected. By declaring that it “strongly condemns any attempt to assert pressure to inhibit the proper functioning of lawyers”, the Society has said what needed to be said, and barristers and solicitors alike will welcome this strident affirmation of lawyers’ independence at a critical time

Although this tirade undoubtedly played well in some circles, there was one major problem with it. The case that Perry was to prosecute has nothing whatsoever to do with the National Security Law, as even the most elementary fact-checking would have revealed. Quite clearly, Raab should have exercised due diligence before maligning Perry, but he put the boot in regardless. To have used the authority of his office to harm Perry’s reputation like this was deplorable, and, if he has any decency, he must now issue a full retraction, and apologize to Perry.

One of Raab’s predecessors, Malcolm Rifkind, another lawyer, also rushed up to kick Perry, imagining, like all bullies, that there is safety in numbers. On January 14, in The Daily Telegraph, he declared that the trial was “the result of a political decision taken by the Chinese and Hong Kong authorities”, for which, of course, he produced no evidence, and accused Perry of displaying “naivete and insensitivity of a high order”. Unlike Raab, however, he at least knew what the case was about, although he suggested that, instead of prosecuting it, Perry “should offer his services for the defense”.

Although Rifkind signed himself off as a “former Foreign Secretary”, there was, intriguingly, a crucial omission, which sheds light on his mindset. Such is his standing in anti-China circles that the serial fantasist, Benedict Rogers, has recently appointed him a patron of Hong Kong Watch, the propaganda outfit which specializes in maligning the Hong Kong authorities and churning out fallacies about China. Rifkind, however, presumably deemed it prudent not to disclose his role to the readers, particularly after one of Hong Kong Watch’s functionaries, Luke Pulford, went completely over the top, describing Perry’s involvement as “an utter disgrace and humiliation for the United Kingdom”, which even Rifkind must have realized was a grotesque misrepresentation.

Hard on Rifkind’s heels, nonetheless, came the parliamentarian Bob Seely, who, in a particularly vile contribution, announced that “no lawyer who has any sense of moral value or moral worth should take this case on”. These, however, were not the objective comments of a concerned politician, but the rantings of an obsessive China basher. This is the same Bob Seely who, from August 30 to September 1, 2019, went on an all-expenses paid trip, or “freebie”, to Hong Kong, financed by “Stand with Hong Kong”, the virulently anti-police, pro-protester grouping which acts as the alter ego of Hong Kong Watch. This, moreover, is the very same Bob Seely who is the vice chairman of the All-Party Parliamentary Group on Hong Kong, which conducted the now-notorious inquiry last year into alleged misconduct by the Hong Kong Police Force during the social disorder. What purported to be an objective inquiry was exposed as a fraud once investigators discovered that it was being covertly financed by “Stand with Hong Kong”, the very group which had complained about the police in the first place. One day, hopefully, somebody will explain to Seely that, in English law, there is a maxim that “no man should be a judge in his own cause”, which people like him should not trample underfoot.    

A little digging, moreover, yields yet more nuggets. Whereas Baroness (Helena) Kennedy QC declared that Perry’s decision to prosecute the case “will become a source of shame”, she is also the chair of the International Bar Association’s Human Rights Institute, which lends apparent credibility to her assessment. However, it has now come to light that, on September 26, 2019, at the height of the violent protests in Hong Kong, and in an apparent gesture of solidarity, the IBA honored two of the defendants, Martin Lee Chu-ming and Margaret Ng Ngoi-yee, with its human rights award. It should, therefore, surprise nobody if the IBA is now trying to protect its own, even if it means traducing Perry. Indeed, the Hong Kong Bar Association itself has long-standing connections with the IBA, and this may explain its failure to condemn Kennedy’s outburst. 

After Perry withdrew from the case on January 20, it became clear that a good man had been victimized and that criminal justice was under threat. Although the Secretary for Justice, Teresa Cheng Yeuk-wah, was quick to denounce this affront to the rule of law, the Hong Kong Bar Association, which has about 1,500 members, held back, which surprised many. After all, as Perry had been politically intimidated after having been admitted by the High Court to prosecute a case in Hong Kong, the association should have been screaming from the rooftops, and its silence was deafening. If the association is unwilling to support Perry, the question inevitably arises of whether it will lift a finger to protect the overseas judges who sit on the Hong Kong Court of Final Appeal, given that Raab also has them in his sights.

On January 20, moreover, when the outgoing Bar chairman, Philip Dykes SC, met the media, he disclosed that the Bar Association had released nearly 50 statements during his 3-year tenure, with 20 having come in the past year alone. Such prodigality, quite clearly, made it all the more surprising that the association could not find it in itself to denounce the political intimidation of a fellow barrister, particularly as he is well known to the local Bar, and was due to appear shortly in the city’s courts.

Instead, however, of leaping to Perry’s support, Dykes chose to wax lyrical about judicial independence, claiming that it was threatened by the National Security Law. He should, however, have been concentrating on the immediate threat to prosecutorial independence, and which has now resulted in a distinguished barrister being hounded off a case in which he had accepted instructions. When, moreover, Dykes’ successor, Paul Harris SC, met the media on the following day, by which time Perry’s withdrawal had been confirmed, he gleefully slagged off the National Security Law and the police force, while ignoring Perry’s persecution, the elephant in the room. Even now, despite the assault on criminal justice, nothing has been heard from the Bar Association, although not all is yet lost.

On January 27, the Law Society, under the indomitable leadership of Melissa Pang Wan-hei, stepped into the breach, and provided the clear direction for which the private sector yearned. In its “Statement in relation to upholding the independence of the legal profession and the criminal justice system”, the Society flagged up the United Nations Basic Principles on the Role of Lawyers (1990). These principles require governments to ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”, that they are able to travel in the discharge of their professional duties, and that they are not subject to threats intended to impair their work.

This, quite clearly, was the clarion call that the legal profession expected. Although the Bar Association has kept silent, people of goodwill will hope that its English counterpart, at least, will have the guts to call out Raab and his outriders for their shameful treatment of a barrister who practices in both jurisdictions. The Law Society, moreover, pointed out that, under the Basic Law, the Department of Justice is vested with the control of criminal prosecutions, free from any interference (Art.63), and that this must be respected. By declaring that it “strongly condemns any attempt to assert pressure to inhibit the proper functioning of lawyers”, the Society has said what needed to be said, and barristers and solicitors alike will welcome this strident affirmation of lawyers’ independence at a critical time.      

Not for the first time, therefore, the Law Society, which has approximately 12,000 members, has provided the legal profession with the leadership it needs. In so doing, it has set a fine example, which others will hopefully follow. By eschewing political posturing and looking after the interests of lawyers, it has shown that it has got its priorities right, and this undoubtedly augurs well for the future of criminal justice.

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.