September 22, 2017 16:20
Junius Ho's subsequent comments since calling for the killing without mercy of pro-independence advocates prove his homicidal intent. Photo: HKEJ

“First let’s kill all the lawyers.” Shakespeare puts these words into the mouth of Dick, a thoroughly disreputable character in Henry VI, as part of his recipe for Utopia.

As a lawyer reading the garbage uttered by novice legislator Junius Ho, I began to empathise with Dick. But for a past president of Hong Kong’s Law Society to endorse a Yuen Long District councilor’s declaration “if he advocates independence, he’s not Chinese, he’s an outsider and must be killed” chanting “No mercy” brings the legal profession into utter disrepute.

Ho subsequently claimed that the media had misinterpreted his words but that did not prevent him from saying that if independence advocates were subverting the fate of a country “why not kill them?” And to underscore his meaning, he added, "To kill them without mercy means we deplore wrongdoers like our enemies.” All of which clarifies his homicidal intent.

Let me be clear, I do not subscribe to the proposition that Hong Kong become independent of China. That is an entirely impracticable notion, beyond any sensible prospect of realization.

But I do stand behind Hong Kong’s unique status, as part of but separate from the PRC, a semi-autonomous liberal and quasi-democratic region, governed by its own common law legal system.

A cardinal principle of this status is the right to freedom of expression. But, as the great jurist Oliver Wendell Holmes put it so succinctly, “your right to swing your fist ends where my nose begins.” In other words, in a civilized society, the limits to individual freedom are constrained by the freedoms to which other people are entitled.

Hence, we are not at liberty to incite others to kill people. Incitement to kill is a crime indictable at common law. One would have expected an ex-president of the Law Society to be sufficiently versed in the law to know this but if his practice did not include criminal law perhaps he might plead ignorance. Quite apart from the maxim ignorantia lex non excusat, whether any right-minded judge or juror would accept such a level of ignorance requires a flight of the utmost fancy.

The Secretary for Justice chose to flaunt his own ignorance of the law, announcing that incitement to murder is not a crime. However, we are now inured to the DOJ’s paucity of legal knowledge in the light of its assertion that a "selfie" is not a photograph, the definition of which is “a picture made using a camera, in which an image is focused on to light-sensitive material and then made visible and permanent by chemical treatment, or stored digitally”.

Where I find the Secretary for Justice’s ignorance particularly striking is when it is compared with his perception of criminality in relation to words or phrases that offend against the Communist Party of China’s interpretations. Is it that one may kill but wounding with words is impermissible? In Orwell’s “1984” the Ministry of Justice was a synonym for duplicitous injustice.

A cynic might conclude that a perception of criminal incitement depends upon the individual who is doing the inciting, but that would be a gross calumny.

As anyone who has ever listened to lawyers arguing a hopeless case knows, there are no limits to ingenuity or, sad to say, stupidity. Yet on the whole, most lawyers endeavour to be objective and apply their trained minds to a balanced analysis of facts and situations. In court, their arguments can be torn to shreds by an acute judge or opponent. In the world of politics, however, all too often no such self-discipline or intellectual restraint is exercised.

Society expects its legal fraternity to exhibit a sense of balance and respect for the proprieties. The Bar Association’s disciplinary code of conduct contains a portfolio offence of "bringing the profession of barrister into disrepute" and the Law Society’s Guide to professional conduct demands that they do nothing "which compromises or impairs the reputation of the profession". These principles govern barristers and solicitors in both their professional and private lives.

Regardless of the criminality of inciting others to kill, such conduct is wholly out of place in a civilized society and we are entitled to expect those in authority, especially someone charged with oversight of justice within the community, to condemn it unreservedly. Failure to do so not only brings the legal profession into disrepute but is a social cancer with appalling potential.

A society comfortable in its own skin, as Hong Kong ought to be, should be mature enough to ignore fringe characters seeking independence. It ain’t going to happen but it does afford students with an excess of zeal over practicality to let off steam. In the UK we have the "Monster Raving Loony Party" which fields candidates at every general election. No one takes them seriously but they often garner one hundred or so votes.

The irony is that behavior such as pro-Beijing Ho’s actually lends dignity to the independence advocates that they would not enjoy were it not for his stupidity, reinforced by the Secretary for Justice’s nonsensical pennyworth.

Most of Hong Kong’s politicians should grow up and lawyers seeking to ride on their presumed legal knowledge should first learn the law and abide by it. Heaven forfend that he should become our next Secretary for Justice but in a world of Trump and Brexit it appears that the improbable can never be ruled out.

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Queen's Counsel