Why David Perry?

Neville Sarony February 01, 2021 08:50

Why choose an English QC to prosecute a case of alleged unlawful assembly?

Unless accompanied by a breach of the peace, unlawful assembly is a relatively minor offence in the criminal calendar, usually the trial will be in a Magistrates Court or the District Court.

Amongst the accused are a number of prominent supporters of democracy, including Martin Lee QC and the previous Legco representative for the Legal profession, Margaret Ng.

On the more flamboyant side, there is also ‘Long Hair’ Leung and Jimmy Lai.

The decision not to treat these accused people as ordinary defendants points very strongly to an intention to make it a “show trial”.

This, in itself, is anathema to the fundamental principle that everyone is equal before the law.

Turning any trial into a spectacle that smacks of Orwell’s Napoleon pig who held that “all animals are equal, but some are more equal than others.”

Hong Kong’s Basic Law does not provide that some categories of accused are more deserving of a sledgehammer to break a nut.

The Department of Justice really ought to employ someone who can read.

For those unfamiliar with the business of importing an English silk to appear in a Hong Kong court, let me explain: application for ad hoc admission to the Hong Kong Bar has to be made to the Chief Judge of the High Court.

It is not rocket science to understand that the rationale for bringing in a silk from overseas has to be justified, after all, Hong Kong has its own body of highly experienced and capable silks.

Broadly speaking, the guiding principles for admission are where a legal issue of great specialization is involved, one in which the Hong Kong Bar has no comparable expertise. In such a case it is in the public interest that such specialist knowledge is made available to the Hong Kong courts.

Ordinarily, unlawful assembly is not a great speciality but the Defence proposes to question the constitutionality of the use of various expedients to ban the basic right to freedom of association.

At the heart of the defence will be a challenge to the virtually unfettered discretion of the Commissioner of Police to grant or refuse a licence for a public meeting, questioning whether this is inconsistent with the provisions of the Basic Law.

These issues are of critical importance to Hong Kong.

Despite its relatively small size, Hong Kong has almost certainly generated more legal challenges to the constitutionality of a whole range of government actions.

As a result, Hong Kong’s barristers, both silks and juniors have a depth and breadth of experience of constitutional matters second to none.

Despite which, the Director of Public Prosecutions argued, successfully, that in order to have the best team available to combat the defence arguments, it is essential to brief David Perry QC.

Unquestionably, Perry QC has a wealth of experience but there are Hong Kong silks at the private Bar of comparable experience and ability, a number of whom, previously, were distinguished prosecutors, yet none of them were even approached by the Department of Justice.

A study of the High Court judgment admitting Perry QC is rather less than convincing about the merits of the application. I do not for one second suggest that the Court favoured the prosecution but the justification is very thin gruel.

One of the reasons advanced is that what it describes as “cross-fertilization” is beneficial for the Hong Kong Bar. I suspect that this is intended to mean that Hong Kong’s barristers can learn from sitting at Perry QC’s feet. If so, it is an undeserved calumny.

Leaders at the Hong Kong Bar are systemically exposed to the finest juridical minds in the common law world through the medium of the presentation and arguing of cases in the Court of Final Appeal. That is a constant source of incalculable wisdom and learning.

The Perry QC judgment suggests that the court was readily persuaded that the projected prosecution would be extremely complex and would be citing cases from other common law jurisdictions as well as Human Rights decisions.

But the fact is that precedents from other common law jurisdictions and Human Rights decisions are regularly cited and relied upon in Hong Kong’s courts.

The Department of Justice’s arguments are so much absolute bosh. The sadness is that they appear to have pulled the wool over the court’s eyes.

Nor is this just a question of legal propriety. We are talking about taxpayer’s money here.

Undoubtedly, the Department reposes great confidence in Perry QC, one might even describe him as their first port of call, virtually to the exclusion of all other English silks.

Yet the last time he was instructed was the Donald Tsang case. The single conviction he secured was overturned by the Court of Final Appeal.

The jury having failed to agree on the second charge against Donald Tsang, and despite having obtained a conviction on the first charge, he was tried a second time, with the same result.

What was plainly a very thin case from the outset was placed before two juries in succession, only to fail to convince either of them.

Which futile exercise of prosecutorial skills landed the Hong Kong taxpayer with a bill for HK$9.2 million dollars in legal fees.

Another bizarre feature of the Perry QC application was that the Secretary for Justice, the government’s chief legal advisor, adopted a neutral stance. The only possible reason one could imagine for that would be to give an appearance of not really caring. Really? Why on earth not?

Or could it just be that the government thinks that by importing an English silk it will make the prosecution more palatable to an international audience?

In my opinion, the English press and government criticism of David Perry QC for accepting the instructions to prosecute in this case is misplaced. Under the ‘cab rank rule’ a barrister is not permitted to refuse instructions if it is in his field of expertise and at an appropriate fee.

This rule is of critical importance to an independent Bar. If we, as barristers only accept instructions consonant with our political sentiment, the Bar’s independence would be vitiated.

Just as one may be instructed to defend someone accused of a terrible crime, so must we accept instructions to prosecute someone with whose alleged actions one may sympathise. As counsel, we are not permitted to select or sit in judgment on our clients.

Professionalism demands clinical detachment, uninfluenced by emotion or politics and according to the law.

That notwithstanding, there must be moral limits even to the cab rank rule and though each one of us must be guided by our own conscience, prosecuting for unlawful assembly simpliciter does not readily engage a sense of moral opprobrium.

Consequently, criticism is not of the individual silk but of the fundamentally flawed decision-making process in the Department of Justice that is intent on turning what, in essence, is a lower scale criminal prosecution into a political circus whilst giving a spurious appearance of adopting objectivity.

It does not take a brain surgeon to remove an ingrowing toenail.

It is a matter of profound regret that the High Court was beguiled into becoming an instrument by which normal criminal procedure was hijacked by the Department of Justice.

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Neville Sarony

King's Counsel