tim's experiment

Considering the events which came later in the year it is rather surprising to see the Department of Justice pulling all the stops out to prosecute nine people for “participating in and organising” an illegal assembly on August 18 last year.

This was a completely non-violent affair in which political objectives took a back seat: the main focus was to protest at police brutality.

The only legal oddity was that the police had supplied a “no objection” letter for a static rally in Victoria Park, but had not approved a mobile march. When the park overflowed – organisers later claimed that more than a million people had shown up – the people who could not get in started to walk to Central, and it all picked up from there.

Among the defendants are “Father of Democracy” Martin Lee Chu-ming, the Tiananmen Square vigil organiser Lee Cheuk-yan, and the veteran activist “Long Hair” Leung Kwok-hung. And Jimmy Lai, of course. They’ll get him for something sooner or later.

But the trial, which is still a month away, hit the headlines because the Department of Justice obtained permission from a High Court judge to import a British barrister, David Perry QC, to prosecute.

I am indebted to a commentator on the Big Lychee blog for the first interesting point about this, which is that COVIDwise the application is already a bit late. People who wish to come to Hong Kong from the UK at the moment are required first to spend three weeks outside their virus-infested home country, and then to spend three weeks in a quarantine hotel in Hong Kong.

Unless the court hearing is going to be held in the hotel, or Mr Perry is going to appear by Zoom, there won’t be time for this. It also appears rather unlikely that Mr Perry, whose time is expensive, is prepared to waste six weeks qualifying to visit Hong Kong so he can appear in a District Court.

This leads to the suspicion that special arrangements are being made for Mr Perry. Is this going to be our Dominic Cummings moment, in which health precautions are discredited by the discovery that they can be waived for a famous few?

Then you have to wonder what Mr Perry is going to do for us. Chief Judge of the High Court Jeremy Poon Shiu-chor (whose permission is required for foreign imports) apparently foresaw a legal slugfest: “At the core of the parties’ contentions, the court will be asked to resolve the extremely important, difficult and delicate question of how to address and, if necessary, balance the competing interests involved in protecting the fundamental freedom of assembly on the one hand and regulating the manner and exercise of that freedom under the statutory regime, including the appeal mechanism on the other,” he said.

“The constitutional issues will have a real and significant impact on the exercise of the freedom of assembly in the future,” he added, saying it was “of great and general importance to the development of local jurisprudence”.

Well it may go that way. No doubt the prospect of prosecuting against a legal team which has Martin Lee as a sort of back-seat driver is intimidating. But Poon J seems to be assuming that the prosecution’s account of the facts will pass unchallenged.

What if the police evidence is contradicted by that of other witnesses, or – as seems to happen rather often these days – by some amateur video? The prosecution has to prove participation and organisation before the human rights aspect comes up.

Mr Perry has prosecuted in Hong Kong before, but the previous targets were in rather different contexts: Nancy Kissel, Rafael Hui and Donald Tsang were among them. The mysteries of the Public Order Ordinance are unique to Hong Kong. Is there no qualified local person?

It appears that if Mr Poon’s expectations are justified and matters of great constitutional import are raised and decided then whichever party loses will appeal. It might, you would think, have been a good idea to reserve Mr Perry’s expensive services for the Court of Appeal stage.

What is wrong with our Department of Justice, that nobody can be found who takes a profound interest in human rights matters? Well, anyone who has bathed in the river of verbiage which flows from the fertile pen of Mr Grenville Cross these days will perhaps suspect that human rights have not been a hot topic in the department for a long time.

Mr Perry has already come in from some stick back in his home country, where travelling to a distant despotism to prosecute pro-democracy agitators is not admired. 

Baroness Kennedy, also a QC, the chairwoman of the International Bar Association’s human rights institute, was quoted by the Times as saying “I cannot fathom why any reputable British barrister would provide a veneer of respectability to actions which are contrary to democracy and the rule of law. This decision will become a source of shame.”

Mr Perry, who perhaps does not take much interest in Hong Kong politics, seems to have overlooked recent developments. On previous visits he was working for an autonomous region’s government. This is no longer the case because Beijing has taken control. This time he will be working for Xi Jinping. You have to wonder who else Mr Perry would be prepared to work for: Victor Orban, Recep Erdogan, Vladimir Putin, or Kim Jong-un?

In his defence we have already been offered the Taxicab Rule. This states, rather implausibly, that barristers merely wait meekly for whatever brief drops into their letterbox, and are not allowed to pick or choose.

This is a useful argument in response to the “how can you defend people you know are guilty” complaint. Defendants are entitled to ask and I am not allowed to refuse.

In practice, though, it is not how things work. Barristers who are in demand can always be “too busy” for an unwanted client, or achieve much the same effect by asking for an outrageous fee.

They also, on occasions, break the rule for political reasons. In 1945 the British Bar decided that none of its members would be available to defend accused war criminals. This meant that those accused had to rely on German lawyers who were not familiar with the legislation or procedure, and had had few recent opportunities to practise their English. This was so obviously unsatisfactory that one barrister eventually broke ranks and appeared for Erich von Manstein.

In Hong Kong there was a case in 1985, usually known as the Braemar Hill murders, in which two British teenagers were murdered by a group of Chinese youngsters.

In order to reduce the racial undertones of the case the Hong Kong Bar agreed that all the defendants should be represented by expat barristers. They were not given a choice.

Mr Perry has a choice. Perhaps in view of the rather strong reactions in the UK he will reconsider it. After all Hong Kong public order cases don’t mean much these days. If the law does not go the way our imperial masters wish then it can always be “interpreted”.