Pearls and Irritations

There can be no question of the National Security Law being repealed. Likewise, I imagine there is no question of your government repealing its National Security Act (2023).

Dear Prime Minister,

In re: Letter to Lord Patten of Barnes

Greetings, from Hong Kong.

I refer to your letter to Lord Patten of Barnes, dated January 3, 2024, in response to his letter, dated December 8, 2023.

In his letter, Lord Patten (a Hong Kong Watch patron) wrote: “We request that you recognise the case of Jimmy Lai and publicly call for his immediate and unconditional release.” The letter, which was co-signed by six other Hong Kong Watch patrons, was referring to the trial, on charges involving national security, of Mr Jimmy Lai Chee-ying, in the Court of First Instance of the High Court of Hong Kong, that started on January 2, 2024 (when pleas were entered).

Lord Patten’s letter was short, and lacked context, which was unfortunate. Its brevity undoubtedly contributed to the errors your reply contained (and which your officials did not rectify). If not corrected, there is a danger they will be repeated. To avoid that, please allow me to explain the situation.

I propose to address your points chronologically, and they fall into four discrete areas.

1.    “He is a champion of free speech.”

If by this you meant Mr Lai was a media magnate who used his publications to promote causes close to his heart, then that is certainly true. He is not, however, being prosecuted because he championed free speech, but because he allegedly overstepped the mark. It is, of course, one thing to report the news and express opinions, but quite another to engage in seditious activity or endanger national security, such being the crux of the prosecution’s case.

It would appear you have not been informed that free speech is constitutionally guaranteed in Hong Kong, in various ways. It is protected by the Basic Law (Art.27), by the Hong Kong Bill of Rights (Art.16), and by the International Covenant on Civil and Political Rights (Art.19) (ICCPR). Since 1997, the ICCPR has continued to apply in Hong Kong, by virtue of the Basic Law (Art.39), and freedom of speech is protected by its legal system.

Elsewhere in your letter, you criticised the National Security Law for Hong Kong (NSL), but before addressing that I must highlight a striking feature of it, concerning free speech. The NSL (Art.4) stipulates that the ICCPR, together with the “freedoms of speech, of the press, of publication … shall be protected in accordance with the law,” and this is reassuring for Hong Kong people. Lord Patten did not advise you of this, and, as you know, the UK’s National Security Act (2023) contains no such guarantees.

One other important point requires emphasising. As in the UK, the right of free speech in Hong Kong is not absolute. As the ICCPR (which applies in both places) recognises, restrictions provided by law are sometimes necessary (in the UK, for example, there are controls on hate speech and racial abuse). Such restrictions may, for example, be imposed, for “the protection of national security or of public order” (Art.19.3). Hong Kong is by no means alone in countering the threats to national security posed by those who abuse their right of free speech for malign purposes.

2.    “He chose to stand by his values and remain in Hong Kong despite the changing political landscape.”

If by that you meant Mr Lai was unable to leave Hong Kong after he was charged with offences contrary to the NSL, you are quite correct. However, although soundbites of this type are beloved of Hong Kong Watch (and its patrons), they are misleading. In June, 2020, when Mr Lai was on bail for public order offences and the NSL was imminent, he attempted to leave Hong Kong.

This was shortly before Mr Lai was arrested on suspicion of colluding with foreign powers to endanger national security, and he may well have seen the writing on the wall. Although he sought a variation of his bail terms to enable him to visit Canada, where he had business and other interests, this was refused. As you may recall, this was at a time when other suspects were fleeing abroad, with some, including convicted felons, seeking sanctuary in the UK.

Although it will never be known for sure if Mr Lai, had he been allowed to depart for Canada, would have returned, the judiciary was not prepared to take any chances. It is important, therefore, for people like Lord Patten to avoid trying to gild the lily. In December, 2020, when Mr Lai, having been charged under the NSL, sought bail, he offered a cash surety of HK$10,000,000 (a million pounds), but this was also unsuccessful.

In consequence, Mr Lai has remained in Hong Kong, and the wheels of justice are now turning in their time-honoured way.

3.    “Jimmy Lai’s prosecution is politically motivated. He has faced multiple prosecutions in an attempt to silence and discredit him. That is why, on 17 December, the Foreign Secretary called on the Hong Kong authorities to end their prosecution and release him.”

In one capacity or another, I have been closely involved with Hong Kong’s legal system for over 45 years, and the picture your letter paints is, frankly, unrecognisable.

When the British left Hong Kong in 1997, they bequeathed a sophisticated legal system. Since then, it has not only continued to function successfully, but has also been strengthened. By virtue of the Basic Law, the independence of the judiciary is now, for the first time, constitutionally protected (Art.85), as also is the independence of the prosecutors (Art.63), again for the first time (before 1997, judicial and prosecutorial independence were only based on convention). The legal system is trusted by residents, who regularly avail themselves of it, and it produces just outcomes for them. As it has always done, Hong Kong treasures its rule of law, and remains wholly committed to the traditions of the common law world.

Were it otherwise, eminent jurists from elsewhere (including two former presidents of the UK Supreme Court, Lords Phillips and Neuberger), would not be sitting, as overseas judges, on the Hong Kong Court of Final Appeal (HKCFA). If you truly wish to understand how Hong Kong’s legal arrangements operate, I would suggest you consult the HKCFA’s British judges (who also include Lords Hoffmann, Collins and Sumption), rather than rely on the likes of Lord Patten and Hong Kong Watch, who have agendas of their own. As, for example, Lord Sumption has explained, “the permanent judiciary of Hong Kong is committed to judicial independence and the rule of law,” and he and his colleagues are clearly best placed to address any concerns you may have.

As objective observers acknowledge, the rule of law in Hong Kong is as vibrant as ever. On October 26, 2023, for example, when the World Justice Project issued its Rule of Law Index 2023, Hong Kong was ranked 23rd out of the 142 countries and jurisdictions surveyed, which was no mean feat. The Index is the world’s leading source for original, independent data on the rule of law, and has more than established its credentials over the years. Although the UK, at 15th, was ahead of it, Hong Kong outshone other places which also pride themselves on the rule of law, including the US (26), Italy (32), Poland (36) and Greece (47). In the East Asia and Pacific Region, Hong Kong was ranked 6th out of the 15 places surveyed.

Although you claimed the prosecution is “politically motivated,” this was less than fair to the dedicated prosecutors in the Department of Justice (DoJ), who decided to prosecute Mr Lai (and who, as explained, enjoy constitutional independence in making such decisions). Although I was the Director of Public Prosecutions (DPP) of Hong Kong for over 12 years after 1997, I was never told by the government (or any politicians) to prosecute (or not to prosecute) particular individuals (nor, for the record, did I receive any such instructions, as the Deputy Crown Prosecutor of Hong Kong, before 1997). This situation continues, and the authorities, as always, respect the constitutionally guaranteed independence of our prosecutors.

In deciding whether to initiate a prosecution, the DoJ’s prosecutors, like their counterparts in the Crown Prosecution Service of England and Wales (CPS), apply the traditional common law criteria. They must be satisfied, firstly, that the evidence affords a reasonable prospect of conviction, and, secondly, that it is in the public interest to prosecute. Quite clearly, if prosecutors were to bring prosecutions which lacked a proper evidential foundation, they would collapse at court, and this is why potential prosecutions are always vetted so carefully.

If, moreover, you, or your officials, have any evidence that the prosecution is, as you alleged, “politically motivated,” or that Mr Lai is being prosecuted “in an attempt to silence and discredit him,” this should be handed over as soon as possible to Robertsons, Mr Lai’s solicitors. If such evidence exists, it would be invaluable to his defence team, and must be disclosed. It would enable the team to apply to the judges to stay the proceedings against him, on the basis of abuse of process. If, however, you have no such evidence, the allegations should be retracted, and the sooner the better.

Although, as you noted, the foreign secretary, Lord Cameron, on December 17, 2023, called on the Hong Kong authorities to “end their prosecution and release him,” this violated prosecutorial norms. It amounted to political interference with the independently taken decisions of the DoJ’s prosecutors, which, as in any other common law jurisdiction, was unacceptable. Just as it would (hopefully) never be tolerated in England and Wales in relation to the CPS, so also is it anathema in Hong Kong.

Moreover, both the DoJ and the CPS are organisational members of the International Association of Prosecutors (IAP), which, inter alia, upholds the rights of prosecutors. The IAP’s “Standards” (1999) stipulate that prosecutors must be enabled “to perform their professional responsibilities without intimidation, hindrance, harassment (or) improper interference” (Art.6), and it is this Lord Cameron disregarded. If Lord Cameron was proposing that the Hong Kong government should interfere with the constitutionally protected decision of our prosecutors to prosecute Mr Lai, this was no less repugnant: the IAP’s Standards are clear on this point, and they require that prosecutors “should be protected against arbitrary action by governments” (Art.6).

Although Lord Cameron was under the impression that, if the prosecution of Mr Lai were to be ended, he would be released, this was also incorrect. As he was sentenced to 5 years 9 months’ imprisonment for fraud in December 2022, there would be no question of his release.

4.    “The Foreign Secretary further urged the Chinese authorities to repeal the National Security Law and end the prosecution of all individuals charged under it. We are clear that this law has damaged Hong Kong; it constitutes a breach of the Sino-British Joint Declaration and has had a chilling effect on the city’s unique way of life.”

These comments engage several issues, one being the myth that the NSL contravened the Sino-British Joint Declaration of 1984 (JD). As the JD recognised, Hong Kong, after 1997, would enjoy a “high degree of autonomy.” However, it said nothing about national security, which involved China’s own interests. The JD contained China’s commitment to upholding “national unity and territorial integrity,” and this was subsequently incorporated into the Basic Law in 1990.

The UK never proposed, and China never agreed, that, after 1997, Hong Kong would be denied the laws it needed to protect itself from subversive activities, secessionism, terrorism or foreign depredations. Under China’s Constitution, national security is a matter for the country as a whole, just as it is in the UK. In 2019-20, when Hong Kong faced an insurrection that caused death, injury and destruction, the “one country, two systems” policy was almost wrecked, but the NSL saved the day.

Although, under the Basic Law, Hong Kong was entrusted by Beijing to enact its own national security laws, it was unable to do so. In 2003, when it tried, opponents stoked fears in the community and enlisted foreign backing, and violence could have erupted. This resulted in a lacuna in the city’s defensive network, and, in 2019-20, this was ruthlessly exploited by those who wanted to harm Hong Kong as a means of undermining China. They launched an insurrection that caused death, injury and destruction, and almost wrecked the “one country, two systems” paradigm, but the NSL saved the day.

When the insurrection broke out, the Legislative Council was wrecked by so-called “protesters,” who caused damage of over HK$40 million (and made clear, in violation of the JD, they wanted to separate Hong Kong from China). Thereafter, the railway network was repeatedly vandalised by rioters, with damage approaching HK$1.6 billion. In several operations, the police seized significant quantities of triacetone triperoxide (TATP), the high explosive used, for example, in the London bombings in 2005, and Hong Kong had a very narrow escape. After our universities were occupied, some were turned into bomb making factories, and the repair bill for the Polytechnic University alone came to approximately HK$700 million.

Our courts, including the HKCFA and the Court of Appeal, were fire-bombed, while individual judges and their families were threatened. Many banks, businesses and restaurants were torched, with people losing their jobs. The police were incessantly attacked with Molotov cocktails, while their families were terrorised at the police married quarters. Chinese people from other parts of the country were victimised, causing many, including students, to leave Hong Kong out of fear for their safety.

Just as these activities would have been intolerable in the UK, so also were they unacceptable in Hong Kong. Although the rioters did everything possible to provoke Beijing into ordering the People’s Liberation Army to end the turmoil (including attacking its representative office), the authorities refused to rise to their bait. This was fortunate, as it ensured the survival of the “one country, two systems” policy envisaged by the JD. Far, therefore, from having “damaged” Hong Kong, the NSL saved it, and the only people to have experienced the “chilling effect” you talked about are those who tried to destroy it.

Once the NSL was enacted, the tide turned. The police finally had the tools they needed to hold offenders to account, to deter criminality, and to protect Hong Kong. It was only those who wished Hong Kong ill who had anything to fear from the NSL, and the broad mass of law-abiding people have been unaffected. As Hong Kong has always been a commercial city, the NSL was welcomed by its businesses, including HSBC, Standard Chartered, Jardine Matheson and the Marriott Group. After the NSL ended the era of lawlessness and restored normality, everybody who loved Hong Kong breathed a sigh of relief.

However, one remarkable feature of the NSL has been the restraint with which it has been applied, although Lord Patten did not mention this. As of December 31, 2023, only 290 people had been arrested for endangering national security since the NSL’s enactment on June 30, 2020, with 170 prosecuted. Whatever impression, therefore, you may have been given, the police have applied a minimalist approach in enforcing the NSL.

There can, therefore, be no question of the NSL being repealed. Likewise, I imagine there is no question of your government repealing its National Security Act (2023). Like other places, Hong Kong is entitled to have laws that protect national security, and it is a bonus that the NSL is human rights heavy. Although the “one country, two systems” policy was in real danger in 2019, its future is now secure, thanks to the NSL.

We must also be grateful that, in 2022, President Xi Jinping announced that the “one country, two systems” policy, which the JD envisaged lasting for only 50 years, would continue after 2047. This has put people’s minds at rest and boosted confidence for the future. At some point, you, or Lord Cameron, may wish to thank President Xi for having allowed our capitalist system and way of life (including the common law legal system) to endure beyond the timeframe originally contemplated.

As for Mr Lai’s criminal proceedings, you need have no concern. He enjoys all the fair trial guarantees contained in the ICCPR, and is defended by a team of six barristers, led by a Senior Counsel (Robert Pang SC) and including a King’s Counsel (Marc Corlett KC). As the NSL provides (Art.5), he enjoys the presumption of innocence, and his trial is being conducted in the same way as trials in other common law jurisdictions. As in the UK, he is entitled to contest the evidence of the prosecution witnesses, to give and call evidence of his own, and to put the prosecution to proof.

Mr Lai is being tried by three professional judges, who, in their judicial oath, undertook to administer justice “without fear or favor, self-interest or deceit.” He will only be convicted if his guilt has been proved beyond reasonable doubt, the test applied in other common law jurisdictions. If convicted, he has rights of appeal, all the way to the HKCFA, and any appeal will be fairly conducted, as he already knows.

In August, Mr Lai had a significant victory in the Court of Appeal, although it has been downplayed by Hong Kong Watch and its patrons (it does not sit comfortably with their analyses of our situation). Whereas he had been convicted of organising an unauthorised assembly by the District Court in 2021 (arising out of an unauthorised procession in 2019), the appellate judges quashed his conviction, as they concluded the trial judge had misconstrued the evidence ([2023] HKCA 971). This outcome spoke for itself, and was testament to the resilience of our judiciary.

As with anybody accused of criminal offences in Hong Kong, justice will be done in the proceedings involving Mr Lai. Although I fully appreciate how tedious it must be to have Lord Patten and his ilk endlessly banging on your door, flawed commentary must be avoided. As you have been inadequately briefed by your officials, I very much hope you will now have a clearer understanding not only of Mr Lai’s circumstances but also of the legal environment in Hong Kong.

If you consider it helpful, I am happy to brief you further (if necessary, through your Consul General in Hong Kong, Mr Brian Davidson). There are obviously people in the UK who want to keep you in the dark, but you deserve better than that. I believe it is in the British national interest that there be a full appreciation of the success story that is modern Hong Kong.

 

Yours sincerely,

I Grenville Cross,

Senior Counsel & Professor of Law,

University of Hong Kong,

Hong Kong SAR,

January 24, 2024.

 

First published in CHINA DAILY HK January 24, 2024