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Hong Kong has changed, but the UK legal community doesn’t seem to realize it – The Diplomat

There is a fictionalized version of Hong Kong that still exists in the minds of many of the most prominent members of the UK legal community. The mass arrests over the past two years of journalists, lawmakers, trade unionists and even lawyers do not figure in this picture of the city.

Nor do these individuals see the rule of law in Hong Kong under attack by Beijing’s draconian security law, which has been used as a tool to purge the Legislative Council of opposition figures, to dismantle the last vestiges of a free press, and to ensure that “national security” trials are conducted with judges hand-picked by Hong Kong’s Chief Executive and without a jury.

It was this fictional version of Hong Kong that was on display last week when Gray’s Inn and the Professional Negligence Bar Association hosted former Chief Justice of Hong Kong, Geoffrey Ma Tao-Li, to give a lecture on “Fearless Advocacy: More Relevant and Practical than Romantic”. (One of the authors of the article was present).

Ma used his remarks to stress the need for judges to be impartial, immune to political pressure and to consider only the facts under the law, referring to the need for fearless lawyers like Nelson’s defense attorneys. Mandela at the Rivonia trial and American civil rights lawyers such as Thurgood Marshall.

The ongoing human rights crackdown and Xi Jinping’s challenge to the rule of law in Hong Kong was the elephant in the room, an issue that Ma did not address. subject, Ma dismissed the idea of ​​judges being hand-picked by Beijing to oversee national security cases and said he believed Jimmy Lai and the 47 pro-democracy activists should be tried under the law. on national security over the next month. would get a fair trial.

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Similar sentiments were expressed by some of the senior British judges and lawyers present at the event, who felt it was inadmissible for Ma to be questioned about the state of the rule of law in Hong Kong. A lawyer went so far as to say it was “wrong to damage the honor of Judge Ma or the judges of Hong Kong, many of whom were his students”.

Perhaps therein lies much of the reasoning behind the fictional Hong Kong that continues to occupy the minds of far too many in the UK legal establishment. After all, how can anyone reasonably recognize the failure of an English common law system that he helped build? Or judges or lawyers whom they have personally trained?

Many Hong Kongers, however, do not share Judge Ma’s unbridled faith in Hong Kong’s justice system. After all, it was the Court of Final Appeals in 2021 that delivered the harshest interpretation of bail under the National Security Act. This decision effectively allowed the authorities to place the defendants immediately behind bars long before the trial.

In another notable case, a group of speech therapists in Hong Kong were recently found guilty and sentenced to 19 months in prison for “seditious” children’s books. All basic human rights defences, which would have been standard in all other modern common law jurisdictions, have been dismissed as “inapplicable” in Hong Kong.

Just over 48 hours after Ma had the red carpet rolled out by Gray’s Inn, Hong Kong’s Justice Secretary and the Hong Kong Bar Association have made the decision to prevent Jimmy Lai’s legal team from hiring a King’s Counsel (commonly referred to as “silks”) from the UK for Lai’s upcoming national security case.

This decision to deny national security suspects the right to be represented by foreign silks is not only contrary to the public interest and the right of defendants to choose counsel of their choice, but sets a dangerous precedent. In the past, many high-profile British criminals have come to Hong Kong to represent defendants in high-profile cases.

Lai’s national security case is the first to deal with the issue of “collusion with foreign forces”. There will be a litany of constitutional issues that will emerge from this case, which will require further consideration by the Hong Kong Court of Final Appeal and will have a substantial impact on Hong Kong’s legal system and society as a whole. It is therefore particularly damning that the Hong Kong Bar Association sides with the Justice Secretary and denies Lai the right to counsel of his own choosing.

British lawyers and judges who cling to this fictional version of Hong Kong should pay close attention to this latest development in Lai’s national security case. Not least because it sets a precedent that could impact the ability of foreign silks and foreign judges to work on other “sensitive” cases in Hong Kong’s legal system in the future. This, in turn, further challenges the role of foreign non-permanent judges on the Court of Final Appeal.

According the times newspaperlast year, the top 30 UK law firms by turnover had 304 partners in Hong Kong and at least 13 chambers were present in the city, which seems to suggest that the UK legal establishment believes that there is still considerable revenue to be made in Hong Kong. .

British law firms and chambers distracted by lucrative civil and commercial contracts in Hong Kong seem to ignore the growing risk that they too will be branded as ‘foreign forces’ and their presence in Hong Kong’s legal system deemed ‘subversive’ “under national security law or homeland security law in the not-too-distant future. Other national security laws targeting “foreign espionage” activities in Hong Kong are expected to be enacted later this year.

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The British legal community would do well to consider the serious restriction on foreign lawyers who exist in the People’s Republic of China and recognize that Chinese Communist Party rule is ultimately incompatible with the functioning of a functioning legal system based on English common law.

The real question is how long will it take for the fictionalized version of Hong Kong in the minds of the British legal establishment to come up against the cold hard realities of the regime in Beijing.