Are we drifting apart?

December 09, 2022 09:55
Photo: Hong Kong Bar Association

When I heard that the government had not extended Timothy Owen KC’s visa, Elvis Presley’s version of “Are you lonesome tonight?” began to course through my brain.

The saga of the English silk’s application for ad hoc admission to represent Jimmy Lai took on a very xenophobic colouring when a local Senior Counsel – patently arguing for their own interests – pointed up that the Chinese version is authoritative and the English is only for reference.

On the back of which argument, the Secretary for Justice advanced the extraordinary proposition that admission of any overseas counsel would tend to defeat the aim of countering “interference in the HKSAR’s affairs by foreign or external forces”.

The National Security Law is so unique that save in exceptional cases – which were never defined - overseas counsel should not be permitted to appear in such cases.

Not unnaturally, the judges demanded to know why there should be effectively a blanket ban on ad hoc admissions of all overseas counsel in relation to all NSL cases without differentiation?

To my eyes, this would only be one remove from arguing that all Hong Kong’s non-ethnically Chinese barristers would also be barred from all NSL cases.

At first blush – would that any of those counsel instructed by the Department of Justice had had the decency to blush – the notion that interpreting a law drafted in Chinese should only be handled by Chinese, has a momentary attraction, but only very momentarily.

Hong Kong is an international city, purporting to be Asia’s foremost financial hub, so why would part of its laws be beyond interpretation in English in its bi-lingual courts?

One of the factors that contributes to Hong Kong’s unique status is the multi-national composition of its Bar, including Australian, British, Canadian, Chinese, Indian, Irish, Malay, New Zealand, Portuguese, Vietnamese.

A stranger looking at the Hong Kong judiciary and its Bar sees independence, integrity and professionalism, powerful reasons for referring international litigation to the courts of the Hong Kong S.A.R.

In this respect, Hong Kong bestows a unique and incalculable benefit on mainland China.

The appeal history of Timothy Owen KC’s application for ad hoc admission is a striking illustration of the operation of an independent judiciary, considering the application on its legal merits and rejecting spurious, I would add ludicrous, arguments advanced on behalf of the Secretary for Justice.

Let us be absolutely clear, I am not advocating on behalf of Jimmy Lai: he has been charged with a catalogue of offences for which he must answer and if convicted he will be sentenced accordingly.

But there is a fundamental principle of natural justice involved, namely that justice must not only be done but seen to be done.

If Hong Kong’s international phalanx of critics – of whom there are far too many sitting in distant armchairs, remote from the consequences of their barbs – are made a gift of a trial process that bears the hallmarks of a stitch-up, Hong Kong’s entire legal fraternity will be accused of complicity.

Hong Kong’s administration are not only entitled but obliged to maintain the security of both the S.A.R., and the country at large, but it should be done within an internationally recognised legal framework that lends credence to the system in which it operates.

There is no requirement to weight the scales of justice in favour of the prosecution, any such step has the tendency to invalidate the integrity of the system.

The images of Themis, the goddess of justice, is always portrayed as blindfolded, signifying that justice is blind to any perception of advantage to either side. This is an absolute concept, not open to national interpretations.

Critics of Hong Kong and China promptly seized upon the administration’s refusal to extend Owen KC’s visa but these same critics cavalierly ignored the fact that at all levels, on all occasions, in irrefutably complete decisions, Hong Kong’s judiciary unanimously determined that Mr. Owen should be granted admission for this limited purpose.

As an Anglo-Irish member of the Hong Kong Bar of 37 years standing…no wonder I’m lonesome tonight.

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