Jimmy Lai Chee-ying sought the help of British King’s Counsel Timothy Owen to represent him in court to lead a team of Hong Kong barristers in the case in which Lai has been charged with colluding with foreign forces to endanger national security under the National Security Law in Hong Kong.
The Special Administrative Region government and the Bar Association both objected to Owen’s application, but the Court of First Instance of the High Court approved it, and the SAR government successfully appealed to the Court of Appeal. Section 27(4) of the Legal Practitioners Ordinance authorizes the court to approve barristers practicing outside Hong Kong to appear in court in Hong Kong on an ad hoc (only for this case) basis. In practice, only King’s Counsels in the United Kingdom have been so admitted.
The public understand that a client hires a barrister to appear in court to fight to achieve the desired result, but what the public may not understand is that a barrister owes a higher duty to the court to help it resolve the current dispute, not just to blindly advance their client’s case. During the trial, a barrister is to submit to the court all relevant cases to advance strong arguments based on the facts and the applicable law, and that is how the trial judge reaches a correct decision. I believe that section 27(4) is premised on this basis.
Throughout all the former British colonies — Australia, New Zealand, India, Malaysia, Singapore and South Africa — no British barrister is allowed anymore to appear in their courts. Why not? Because these countries strive to achieve not just sovereign independence, but legal independence, and they have nurtured self-confidence in their own breed. They are nonetheless common law jurisdictions and had no hesitation in abolishing such a colonial privilege.
Cases and precedents of the UK and all common law countries can be accessed in Hong Kong (of course, some with a fee). Hong Kong barristers have been relying on these case law as authoritative when making submissions in courts. Not only are we familiar with English judgments, we no doubt thoroughly understand the reasons and arguments behind each relevant judgment.
Both the Court of First Instance and the Court of Appeal held that Lai’s case involved balancing the right of free speech guaranteed by the Basic Law’s Article 27 and the National Security Law’s Article 4, and the protection of national security under the National Security Law, Article 29. To decide where the line should be drawn, it is necessary to refer to the judgments of other jurisdictions such as the European Court of Human Rights (ECHR). This is a matter of course, but why are Hong Kong barristers not able to download judgments from HUDOC (a website that contains all ECHR judgments) to read and understand them to make submissions to assist the court?
What’s more, the cases cited are not necessarily handled by Owen, who himself has to read the cases from a third-party perspective. What advantages does he have over Hong Kong barristers?
In fact, for all ad hoc admission applications to be approved, one of the requirements is that the UK King’s Counsel must appear in court with local counsels to achieve the purpose of “education or training” of local legal talents. The team of barristers that Lai has retained now already has one senior counsel who specializes in criminal matters. Are senior counsels bred in Hong Kong not “senior” enough compared with those in the UK? Why does Hong Kong have to always be subservient to the UK, and why does our legal system have to condone some sort of “Britain’s dominance or monopoly”? Why can’t we develop our own set of common law suitable to our local situation? In this regard, our volition is second to other former British colony counterparts such as Australia and Singapore. After 25 years of reunification with the motherland, we should have the courage and wisdom to “turn a new page” for Hong Kong’s common law!
General Secretary Xi Jinping called on Hong Kong at the 20th National Congress of the Communist Party of China to “perfect our judicial and legal systems”. I think that one of the aspects of perfecting Hong Kong’s legal system is to consider abolishing the system of ad hoc admission of UK barristers, to achieve true legal independence for Hong Kong.
The author is chairman of the Hong Kong Legal Exchange Foundation, and an Election Committee Member (Legal Sector).
The views do not necessarily reflect those of China Daily.