Hong Kong Has Changed, But Britain’s Legal Community Doesn’t Seem to Realize It

There is a fictional version of Hong Kong that still exists in many of the minds of the most prominent members of the U.K. legal community. The mass arrests over the last two years of journalists, lawmakers, trade unionists, and even lawyers, do not feature in this image of the city.

Nor do these individuals consider the state of the rule of law in Hong Kong to be under assault by the draconian security law imposed by Beijing, 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 go ahead with judges handpicked by the Hong Kong 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 Hong Kong Chief Justice Geoffrey Ma Tao-Li to give a lecture on “Fearless Advocacy: More Relevant and Practical than Romantic.” (One of the article’s authors was present).

Ma used his remarks to outline the need for judges to be impartial, unmoved by political pressure, and only consider the facts under the law, referencing the need for fearless advocates like Nelson Mandela’s defense lawyers at the Rivonia Trial and U.S. civil rights lawyers such as Thurgood Marshall.

The ongoing crackdown on human rights and the challenge Xi Jinping has presented to the rule of law in Hong Kong was the elephant in the room, one that remained unaddressed by Ma. When challenged on this, Ma dismissed the idea of judges being handpicked by Beijing to oversee national security cases and stated that it was his belief that Jimmy Lai and the 47 pro-democracy activists due to stand trial under the National Security Law over the next month would get a fair trial.

Similar sentiments were expressed by some of the senior British judges and lawyers present at this event, who felt it unconscionable that Ma should face questioning regarding the state of the rule of law in Hong Kong. One lawyer went so far as to state that it was “wrong to impugn the honor of Justice Ma or the Hong Kong judges, many of whom were his pupils.”

Therein may lie much of the reasoning behind the fictional Hong Kong that continues to occupy the minds of far too many in the U.K. legal establishment. After all, how can someone reasonably recognize the failure of an English Common Law system they helped build? Or of individual judges or lawyers they personally trained?

Many Hong Kongers, however, do not share Justice Ma’s unbridled confidence in Hong Kong’s legal system. After all, it was the Court of Final Appeal in 2021 that handed down the harshest interpretation for bail under the National Security Law. This decision effectively allowed the authorities to place defendants immediately behind bars long before trial.

In another notable case, a group of speech therapists in Hong Kong were recently convicted and sentenced to 19 months in prison over “seditious” children’s books. All basic human rights defenses, which would have been the norm in any other modern common law jurisdictions, were thrown out as being “inapplicable” in Hong Kong.

Little more than 48 hours after Ma had the red carpet rolled out for him by Gray’s Inn, Hong Kong’s justice secretary and the Hong Kong Bar Association made the decision to block Jimmy Lai’s legal team from hiring a King’s Counsel (commonly known as “silks”) from the U.K. for Lai’s upcoming national security case.

This decision to refuse 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 select the legal counsel of their choice, but sets a dangerous precedent. In the past, many prominent U.K. criminal silks came to Hong Kong to represent defendants in high-profile cases.

Lai’s national security case is the first that deals with the question of “collusion with foreign forces.” There will be a litany of constitutional questions that come out of this case, which will require further consideration by Hong Kong’s Court of Final Appeal and have a substantial impact on Hong Kong’s legal system and society as whole. It is therefore particularly damning that Hong Kong’s Bar Association would side with the justice secretary and deny Lai the right to legal counsel of his choosing.

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

According to the Times newspaper, last year the top 30 U.K. law firms by revenue had 304 partners in Hong Kong and at least 13 chambers had a presence in the city, which appears to suggest that the U.K. legal establishment believes there is still considerable revenue to be made in Hong Kong.

U.K. law firms and chambers distracted by lucrative civil and commercial contracts in Hong Kong appear to be ignoring the growing risk that they may too be labelled as “foreign forces” and their presence in Hong Kong’s legal system deemed “subversive” under the National Security Law or domestic security legislation in the not-so-distant future. More national security legislation targeting “foreign espionage” activities in Hong Kong is due to be enacted later this year.

The U.K. legal community would do well to consider the severe restrictions on foreign lawyers that exist in the People’s Republic of China and recognize that Chinese Communist Party rule is ultimately incompatible with the running 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 U.K. legal establishment to hit the cold hard realities of Beijing’s rule.

This article was originally published in the Diplomat.