Hong Kong Questions

David Perry QC’s decision to act in the Hong Kong prosecution of nine defendants on two charges of unauthorized assembly has come in for a great deal of criticism. This includes the current (Conservative) Foreign Secretary, a former (Labour) Lord Chancellor, and other legal luminaries, politicians and lawyers. The press reports, and comments garnered from various critics (who I sympathise with), do not give me a great deal of confidence that those commenting understand the facts or professional rules applicable, so I have naturally been looking into the issue. Is there a moral or professional ground for querying Mr Perry’s taking of the case? I think there might be but would go no further than that.

I should begin by saying that I am not as familiar as I ought to be with the troubles in Hong Kong, the background to this prosecution, or indeed the Hong Kong bar rules. So I offer some thoughts based on my preliminary research. I would welcome any comments, even more than usual.

On the moral argument, there are clearly concerns about China’s influence on the rule of law in Hong Kong, the challenges to democracy and, in particular, democratic opposition and the introduction of wide-ranging security law (see this published by the Bar Council which argues that the laws are contrary to the Rule of Law). There seem to be grounds enough for calling into question any decision to work with the Hong Kong authorities on prosecuting a case, one might be inclined to think, even before one puts into the mix China’s treatment of the Uighurs, with allegations of genocide being made with increasing force. The moral arguments also play into a professional obligation: the need to protect the rule of law and the administration of justice. For professional lawyers, this obligation trumps all others in situations of doubt.

It is worth underlining here some of the contrary arguments: this does not appear to be a prosecution under the new security law (see here, it seems to be 1995 public order legislation); Perry might argue the propriety of any prosecution and the rule of law is better protected by his engagement (his opponents that this is legitimising oppression not protecting the law); and it might be difficult to criticise him for working with a system which UK judges still participate in at the end of appeal stages. Interestingly, that ongoing participation seems to be in question, see here and this very interesting statement from Lord Reed in July (although I think there may have been cases since then where former SCJs sat, they were not as far as I am aware cases of this sensitivity).

One prophylactic against such criticism, the Cab Rank Rule, probably does not apply in this case. The Bar’s rules of conduct disapply the Cab Rank rule for foreign work. Mr Perry is not a member of the HK Bar but he is reported to be registered in some way. I do not know the impact of such registration, it is possible this does apply the HK Bar’s Cab Rank Rule, but this seems unlikely to me. The HK’s code applies to those admitted to their Bar, and then to those not so appointed but admitted on a particular cases. David Perry had to apply and the judge give permission for him to hear the case: at that point he would be bound by the rules of the Code not before that, unless registration also required adherence to the rule (para 3.2 here).

As prosecutor he is subject, I assume, to the HK Prosecutor’s Code which requires him to prosecute independently, and so on. David Perry has to be satisfied that he can and will, that the charges are one’s properly brought on the evidence and so on. The Code makes plain a prosecutor also needs to consider particularly carefully that it is a protest being prosecuted (para. 19.3) and also the risk of political discrimination (para 13a. of the UN guidelines, included with the Code at p. 53). Failure to do that would be professional misconduct. An interesting question is whether Mr Perry is actually the prosecutor taking these decisions, as opposed to their advocate, but whether he is or not, I think he needs to be satisfied of these things to participate independently.

The final argument is whether Mr Perry’s conduct, “is likely to diminish the trust and confidence which the public places in you or in the profession [CD5]” and in particular, under rC8, he is prohibited from doing, “anything which could reasonably be seen by the public to undermine your [his] honesty, integrity (CD3) and independence (CD4).” The concerns here centre, I believe, on independence, although there is a strain of criticism being made of Mr Perry which suggests his prosecuting is so palpably wrong as to connote a lack of integrity. A case based on integrity would have to grapple with the debate about what integrity means, which to paraphrase tends to centre on quasi-dishonesty or serious disregard for professional standards (here perhaps the case would be that there had been a flagrant disregard for an obligation to protect the rule of law).

The Guidance emphasises the need to be able to “maintain your independence from external pressures”. It is not whether Mr Perry’s independence is actually compromised but what, “the public may reasonably perceive as undermining your honesty, integrity or independence [which] is likely to diminish the trust and confidence which the public places in you or in the profession,” that is determinative.

The examples the Code gives on independence deal with fee arrangements and gifts including, “The giving or receiving of entertainment at a disproportionate level”. Media comment is mentioned (implicitly warning against a Barrister compromising their independence in speaking up for a client inappropriately, an analogue here might be the risk of his external reputation being used to legitimise the prosecution, but one would need to link that to a perceived compromising of independence or integrity). The guidance makes plain that the examples are not exhaustive, so the unusual nature of this case, which has no analogue in the examples, is not a bar to it falling under the rule.

An interesting question to pose is which public do the rules refer to: is it Hong Kong (China even?), the UK or both? As the rule aims to protect the profession’s reputation I assume it is both. The tenor of the cases that I have been able to find (see here and cases referred in it) is that the matter does not need to have or be likely to attract public interest, nor that one actually needs to find out what the public thinks, but that the disciplinary tribunal will decide for itself whether a reasonable, objective member of the public was likely to be perceive Mr Perry’s integrity or independence as being undermined [such that it] is likely to diminish the trust and confidence which the public places in him or in the profession. This seems to me to be arguable, in the broad context and moreover for a case brought against pro-democracy protestors, but I would want to understand the Hong Kong situation and the case much better before I engaged further with that argument.

That said, I can well imagine a regulator contemplating investigation or a tribunal adjudicating them being wary of such arguments. The reason for that is whilst the rule aims to protect the profession’s reputation the rule is there to bring cases against those who’s conduct is considered to pose a risk through their fitness to practice. An argument for Perry might say, this is a professional judgment in highly difficult circumstances, where he felt he could support the rule of law through his participation, and that whilst there are arguments on both sides, those who come down against him are arguing a its highest a political call rather than a professional misjudgement, a bad or really bad call rather than misconduct. I don’t really buy the argument that the decision is merely political, professional obligations are patently in play both in relation to this particular case (can it be prosecuted fairly, is it political discrimination) and the general situation (is this part of a broader strategy of undermining  the rule of law, should I lend my own and my profession’s reputation to this). The test in disciplinary terms is whether the decision to take (or continue with it) the cases involves, “sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise.” Is the decision to take the case sufficiently serious? Again this might turn on the particulars of the case and the situation in Hong Kong. To an outsider, with limited understanding, the situation in Hong Kong looks very bad, and calls the judgment into question, but whilst it might amount to misconduct I would need to know significantly more before saying I thought it did.

7 thoughts on “Hong Kong Questions

  1. Thanks for a really thoughtful blog. A few thoughts from my days of advising barristers on these sorts of duties. Like you, I’m not an expert on HK law or the Code applying to barristers there, but I’m not sure that this matters.

    1. I agree that the cab rank rule is barely relevant. The rule only applies to work where you’re instructed by a solicitor and there are are plenty of get-out clause. As you say, it doesn’t apply to foreign work. However there are other rules in the Bar Code which, I think, would have made it difficult for him to refuse the case.

    2. Rule C28 probably applies most. It’s the non-discrimination rule and requires you not to refuse instructions on the grounds that the nature of the case is objectionable to you or any member of the public or that the conduct, opinion or beliefs of the client are unacceptable to you or any member of the public. I think that it’s quite difficult to see how Mr Perry could have properly refused the case on the grounds that he or anyone else disapproves of the conduct of the Government of Hong Kong or doesn’t want to prosecute a case against protestors. This rule appears to apply whenever a barrister is supplying legal services including, as I read the Code, foreign work.

    3. Rule C21 prohibits you from accepting instructions in certain circumstances: where (paraphrasing) you are too busy (presumably Mr Perry wasn’t), the instructions limit your ordinary authority or discretion in conducting proceedings (I was never able to establish the limits of that, but have always understood it, in particular, to be around the way in which you put your arguments, called witnesses, asked questions etc), or there is a real prospect you will not be able to maintain your independence. It seems to me unlikely that this will apply: without knowing the substance of the instructions, it seems perfectly possible for them to be drafted so that there is no greater threat to his independence than in any other circumstances. So it seems unlikely that he was prohibited from appearing.

    4. I think that Mr Perry could have refused this work because he was busy or for some other reason – holiday, doesn’t travel to Hong Kong at that time of year (probably unlikely), inadequate fees, excessive costs (none likely to apply here) but not for the very reason that people are saying that he should have refused them. The presumption at the Bar is, generally, that you should do the work if asked.

    5. C13 requires you to follow the HK Code unless it contradicts the core duties. I would be surprised if there was anything in that Code which did run counter to those. in any case, if there were, Mr Perry would be required to ignore them or (more likely) withdraw from the case. There is nothing about working in a jurisdiction with objectionable laws or draconian prosecution polices.

    5. The only Core Duty remotely relevant is the one you identify. However, if the Code specifically requires you to ignore what the public might think about you accepting such instructions, I don’t see how that can possibly run as a complaint, let alone a disciplinary matter.

    6.There are also ongoing obligations while he’s there. If he found himself under inappropriate pressure, or his independence compromised or required to do things which conflict with the core values, then he’d have to withdraw. There’s no reason to believe that he won’t be alert to this.

    7. I therefore think that it would have been extremely difficult, under the Code, for Mr Perry to have refused these instructions unless he had some reason which wasn’t linked to the nature of the case or the person instructing him. He could, I suppose, have withdrawn his membership of the HK Bar and, while that might be a principled thing to do, I can’t think of anything in the Code to require this.

    8. This reflects the Bar’s view that it does not exist to pass moral judgements on their clients and the law: they exist to represent and everyone is entitled to representation, however objectionable and the need for this may be even greater if laws are harsh. This hasn’t caused major problems because the common law regimes abroad where most barristers do their overseas court work, on the whole, haven’t raised the human rights and civil liberties questions that events in HK have.

    9. The BSB could think about whether barristers should be required to act for unpopular/repressive regimes outside England and Wales or even prohibited from doing so. I suspect that the question may become more important, but I wonder if it would really want to start making value judgements on who its regulated community can represent. That sounds pretty undesirable to me.

    1. Thanks Mark. It’s an interesting argument, setting up something like a cab rank rule but on the basis of non-discrimination. The key question would seem to be would be whether the case was being rejected because it was objectionable or for some other reason (the argument I think being made is that it is contrary to the rule of law to assist, not that the case is merely objectionable – I doubt you’d say if Pol Pot was seeking to instruct that his regime was merely objectionable and the barrister was obliged to take it, so the question is whether the nature of the objection here is mere objection ability?). That the judges are speculating publicly about this point being reached or near, if that’s the fair characterisation, suggests there might well be something in that. You are right though, this is a significant hurdle to be jumped to making the argument successfully I think.

      I agree about the importance of independence in the handling of the case and DP likely being very alive to that.

      Thanks again for the comment!

      1. Thanks, Richard. The ‘non-discrimination’ argument was actually originally suggested by Lord Mackay of Clashfern when the Bar was trying to include a requirement for a “cab rank” rule for all advocates in the 1989 Courts and Legal Services Act. The Bar adopted it to address the concerns that barristers might have inappropriate reasons for declining non-cab rank cases.

        I agree absolutely that colluding with a prosecutor or any other regime to breach the rule of law (presumably by suppressing evidence, arguing that the court should not hear a defence or by untenable legal arguments) must be a breach of the core duty (and a good number of others). But what is the position if a barrister is participating appropriately (i.e. acting fully in accordance with his duties as a prosecutor) but within a system that was inherently contrary to the rule of law – the judge had reached the decision in advance, or there was no prospect of an acquittal being honoured? Or in a judicial system which fully complies with the concepts of the rule of law, but where the sort of behaviour criminalised or the consequences of particular criminality would, say, breach our understanding of the ECHR? I don’t know the answers. Perhaps the BSB should grapple with them.

        From Lord Reed’s statement it doesn’t appear to me that there’s conclusive evidence that the rule of law (as opposed some very concerning legislation) is yet compromised in Hong Kong – just that it needs to be watched. It’s at least arguable that a senior and respected QC in these cases might assist the rule of law. The danger is that he might be used to give respectability to an unconscionable process. I don’t know enough to judge.

  2. Well done for this thoughtful piece and for looking at the HK regulations. It’s a moot question as to which profession is said to be being brought into disrepute – any one that Perry is a member of , or affiliated to? The Hong Kong prosecutor code refers to an international body of prosecutors suggesting that profession is international or global. I doubt if for discipline purposes that can be right. The emphasis that you put on the perception of the hypothetical member of the public presumably has to be the hypothetical, fully informed and fair minded ( i.e objective ) member of the public ( that’s the test for bias – Porter v Magill ). This means that they would be expected to know that David Perry QC is a top flight and ( until this case) a very respected criminal barrister, a former Treasury Counsel and one who for a decade or more appeared more often in the House of Lords and Supreme Court in criminal cases than anyone else practically ( often for the Crown, with a particular expertise in legal history ). He also has frequently acted on behalf of the UK government in cases before the ECHR. If in recent years he has appeared less often in the UK Supreme Court it is probably because he has been doing a lot of work abroad including the criminal courts in Hong Kong. Indeed in 2017 he represented the Hong Kong Department of Justice in prosecuting a very high profile case against former Chief Executive Donald Tsang over allegations of misconduct in public office.

    The point being that the hypothetical, fully informed bystander is deemed to know all of that when assessing whether Mr Perry is a latter day carpetbagger or an outsider with no knowledge of Hong Kong and the situation there, and whether he is an appropriate person to prosecute ( or defend ) in Hong Kong. If senior UK judges are trying to safeguard the rule of law by remaining members of the HK Court of Final Appeal, doubtless Mr Perry might argue that he is seeking to uphold the best traditions of advocacy and neutral prosecution by appearing in this case. Mr Perry is not afraid to be unpopular if he feels that is what is required, look at his 2011 review of the UK’s extradition treaties for the Home Secretary ( he concluded that the extradition treaty with the USA was not unbalanced ). My surmise, not based on any personal information, is that Mr Perry believes in the spirit of the cab rank rule and was asked to do a job by a government department that knew him and his work pretty well. I would be very surprised if he was motivated by the fee ( I’m sure he was aware that in taking the case he might be jeopardising future instructions from the UK Government ) and that if he felt that his independence as counsel was being threatened he would take action accordingly.

  3. As former members of the UK senior judiciary can be invited to sit on the Hong Kong Court of Final Appeal ,I suggest that criticism of Mr Perry is not well founded.

    In Justice Matters:Essays from the Pandemic, Dr Frederick Wilmot Smith,a Fellow of All Souls and a distinguished commentator on Contract law observes that “The nadir is the judiciary’s celebration of of the justice system’s wealth making potential…”(at page 7).Perhaps this applies to membership of the HK CFA. I do not know.

    There is a robust defence of Mr Perry from Crown Court Chambers in today’s on-line edition of the Financial Times.

  4. Catherine McGregor of the City of London Corporation is as I understand the reports in the midday edition of City AM as largely washing her hands of Chinese abuses in pursuit of a good trade relationship with China. I suggest that we accept that we are a nation of mercanaries. And stop throwing stones at Mr Perry.

  5. So Mr Perry has withdrawn. Not a good precedent that he had pressure put on him. Surely,we should respect advocates taking on very unpopular briefs. Once putting frightners on advocates becomes the norm,out goes the rule of law. To every case there are two sides.
    Uncomfortable Fact for Perry’s critics remains that English judges continue to be available to sit on the HK CFA and so we continue to buttress the Hong Kong judicial system.We cannot have our cake and eat it.

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