We hear little of what goes on behind the scenes in the national security part of the police force. So small snippets of evidence are interesting. A couple of recent offerings suggest that an important right is being eroded.
The right to unfettered access to a lawyer is not disputable. It is mentioned in the Bill of Rights Ordinance which states in Article 11 (2) (b) that everyone charged with a criminal offence has the right to “adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.”
The Basic Law has Article 35: “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.”
These rights are explicitly confirmed in the national security law, which states in Article 5 that “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.”
There is nothing in the national security law’s Article 43, which deals with police powers, to suggest that any new right is being conferred to deprive defendants and others involved in legal proceedings of their right to counsel.
This is something of a global consensus. At the risk of provoking local defenders of the law and industry who dislike international comparisons, the position of the European Court of Human Rights has been summarised as: “Restrictions on access to legal advice are permitted: (i) only in exceptional circumstances; (ii) must be of a temporary nature; (iii) must be based on an individual assessment of the particular circumstances of the case; and (iv) must have a basis in domestic law, which must regulate the scope and content of any restrictions.”
The UN’s declaration on the Basic Principles of the Role of Lawyers (you find all sorts of odd things on the internet) opens with: “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.”
In more homely terms, as Vanessa Place puts it in a book about her work as a lawyer for nasty people: “Fellow cons will be the first to volunteer to crack a rapist’s skull, but will never question the scumbag’s right to a defence.”
And the government’s official advice, offered on its webpage, is that “You have the right to free legal advice (legal aid) if you’re questioned at a police station. You can change your mind later if you turn it down. You must be told about your right to free legal advice after you’re arrested and before you’re questioned at a police station.”
This is the legal situation. It seems to me to be rather at variance with details which have emerged about two conspicuous cases. The first concerns Agnes Chow, a former political figure of some consequence who was on police bail, though not charged with anything, until she made a curious deal with the national security police.
She would attend a day trip to Shenzhen, featuring educational visits and a lot of photography, and sign a letter of regret and contrition. In return for this she could have her passport back, and sign up for a degree course in Canada.
In due course she arrived in Canada and then announced that she was not coming back. Multiple media interviews followed, naturally, and the one with AFP included this background detail: “I was told by the police not to tell any people… not my lawyer, not my family, not any of my friends,”
I take it from this that throughout the negotiation and implementation of the arrangement, Chow had no access to a lawyer whatsoever. It may be that there are some circumstances in which national security requires suspects to be discouraged from reporting the details of their cases to friends who may also be suspects, but “not my lawyer?”
It is particularly disturbing that this absence of legal advice continued through the signing of the letter. I was politely chided by the HKFP’s meticulous sub-editing department for describing this as a “confession” in an earlier piece, but the fact is that it was drafted by a policeman and not vetted by a lawyer, so it was at best a dangerous document. Presumably the expressions of regret included some description of what was regretted, and this may well have involved admissions which could have landed Chow in further trouble.
I now turn to another recently famous interviewee, Tony Chung. Chung was in a slightly different situation. He had served his time for a national security offence, was released early as well-behaved prisoners usually are, and as usual in these circumstances was still under “supervision.”
This is done in other places by a probation officer, but in Hong Kong is apparently a matter for the Correctional Services Department (CSD). Chung obtained permission to visit Japan for a holiday, and fled to the UK, where he intended to apply for political asylum.
The CSD people are understandably a bit aggrieved that their sincere efforts to ease Chung back into society have been spurned. But it seems he was also under the supervision of the national security police, who periodically interviewed him with a view to gathering information about his friends.
Once again, it seems clear that there was no lawyer present at these interesting interactions, which Chung found rather stressful. Again we have a background snippet, this time from the BBC: “A confidential declaration he signed before his release from prison restricted him from disclosing the interactions with the national security police to any third parties, including lawyers, he said.”
This will not do, in my opinion. I realise that police people tend to regard lawyers as an irritating obstruction to the pursuit of public peace. But the law is the law. People involved in involuntary interactions with the police are entitled to have a lawyer present. Requiring them not only to engage in such interactions without counsel, but also not to consult a lawyer afterwards, is oppressive. Quis custodiet?
Type of Story: Opinion
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