The Hong Kong government has done a good job so far of keeping Jimmy Lai, the founder of defunct pro-democracy tabloid Apple Daily, in prison for one reason or another. No doubt it will continue to discharge this important function. This does, though, require some logical and legal gymnastics.
Remember the row about British judges making guest appearances at the Court of Final Appeal? This arrangement was, in the official view, a gratifying endorsement of the Hong Kong legal system.
Nobody was bothered by the undoubted fact that the CFA will, from time to time, have to rule on cases involving the national security law, or that the overseas judges did not speak Cantonese. Nor indeed that they were likely to rule on laws which they had not previously encountered in their various home jurisdictions.
They were a great asset; the withdrawal of those who withdrew was lamented, and the announcement that others would not withdraw was hailed as an endorsement of our legal system.
Yet the question of local knowledge and language skills were the things which bothered the Department of Justice when Lai wished to be represented by a British King’s Counsel, Tim Owen. Note: a KC is a QC whose Queen has died and been replaced by her son.
If you want to employ an imported barrister you have to get the permission of a High Court judge. Such applications are routinely opposed by the local Bar Association on the grounds that suitably qualified locals are available.
Actually I suspect the suitably qualified locals were rather pleased that the routine opposition did not succeed; many of our comrades north of the border do not understand that barristers are expected and indeed required to represent people they do not approve of or agree with.
A defence, particularly a successful defence, of Lai would not go down well with the large group of commentators who call for judicial reform every time a court makes a decision they disagree with.
The DoJ also opposed Lai’s application, and persisted in this opposition by appealing against the original judge’s ruling. This is harder to explain. Did the department not wish to import David Perry QC – the Queen then still being alive – to prosecute Lai in another case, just last year?
I do not remember the point coming up at the time but I rather fancy Perry does not speak Cantonese either. His decision to withdraw from the case may have been due to a storm in British political circles, or to some belated research into Hong Kong’s quarantine rules at the time for arriving travellers.
His withdrawal was roundly condemned by the usual chorus as a lost opportunity, an affront to the rule of law, and a demonstration of ignorance of Hong Kong’s many merits in British government circles.
The DoJ’s approach appears to be that it may usefully employ Perry to prosecute Lai in one case, but Lai may not employ Owen to defend him in another. Years of training allow lawyers to float undisturbed past such paradoxes. To the layman it looks unfair.
Similarly we shall no doubt soon be told that having one foreign judge at a time on the CFA is a useful protection of human rights, legality and other platitudes, but having a foreign barrister defending a local accused is an affront to the legal system and an insult to the legal profession.
Indeed Leung Chun-ying, a reliable source of oratorical overkill, has already jumped into action. The three appeal judges who approved Owen’s visit were “inviting British people to ‘develop’ national security law in Hong Kong China.”
This is the same Leung who said that when two British judges withdrew from the Court of Final Appeal roster it was “a stain on the independence of the British judiciary” which had made Britain “a laughing stock.” The CFA has already ruled on national security cases.
He had no complaints about the invitation to Perry. Now he complains that the judges who decided to admit Owen have “humiliated” the local legal sector. Why a total of four judges should have agreed to do such a thing he did not say. Anyway Leung, a serial offender against the building regulations, is an unlikely authority on the rule of law.
Indeed we seem to have a serious surplus of people in Hong Kong for whom the rule of law is a mere slogan, to be deployed when expedient and discarded whenever a judge produces a decision which they do not like. With defenders like this, who needs enemies?
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