Tinkering with justice

Neville Sarony January 31, 2022 10:00

No doubt Siobhain McDonagh MP’s advocacy of withdrawing the British judges from Hong Kong is well intentioned but, with all due respect, it is misguided.

It is correct that pursuant to their concept of the dictates of National Security, the mainland Chinese government has imposed a parallel criminal justice system much of which is inimical to the liberal common law system which Hong Kong enjoys.

Those charged with offences under the National Security Law fall prey to a dystopian procedure that owes almost nothing to the due process which the liberal rule of law accords.

The right to be granted bail pending trial and to be judged by a jury of one’s fellow citizens have no place in this authoritarian pedagogy, indeed it reverses the fundamental precept that no-one is guilty until that has been proved.

Nevertheless, despite the notoriety attaching to the plastic gamut of offences under the NSL, they constitute a very slim slice of the justice system, the vast majority of which is unchanged.

In effect, NSL cases are confined within a criminal law vacuum.

Though it may have suffered a dent, contrary to Ms. McDonagh’s argument, the system is not broken and is not being propped up by the British judges. Hong Kong’s Judges, barristers and solicitors comprise several nationalities, all of whom pursue their professional obligations in a manner consonant with the same basic principles of the common law that their counterparts do in Britain.
The common lawyers may disagree with the workings of the NSL but they are bound to abide by it constitutionally and it does not impact on their work in the vast multiplicity of legal cases which have nothing to do with the NSL.

The judges to whom Ms. McDonagh MP refers are those Non-Permanent judges of Hong Kong’s Court of Final Appeal. The NPJs are the cream of the judiciary drawn from the major common law jurisdictions, Canada, Australia and New Zealand as well as the UK and bring massive breadth of vision to the decisions of the CFA.

To date, the CFA has only had one NSL case referred to it and this was decided in accordance with established common law principles.

One can readily envisage an NSL case coming before the CFA, at which moment in time the judges, not just the NPJs but the permanent judges, may, arguably, find themselves between the devil and the deep blue sea and be compelled to face the incompatibility of the two systems of criminal justice. But until that moment arrives, Hong Kong needs every reputable common lawyer to keep their shoulder to the wheel, adhering to the familiar legal principles that have evolved over centuries of practical decision making.

Those who wish Hong Kong well should bear in mind that, more often than not, politically inspired sanctions impact adversely on the common populace, whilst the governing authorities easily weather such storms.

Hong Kong’s people need its common lawyers at every level of the system of justice, especially at its apex. That need should not be diluted by empty gestures.

Followed to its logical extremity, Ms. McDonagh’s prescription would require that every common lawyer abdicate their practice in protest against the imposition of the NSL.

Does a minor leak justify the crew abandoning ship or does every member turn to and work to bring it safely to shore?

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Neville Sarony

King's Counsel