Opinion | Hong Kong’s Basic Law enshrines legal representation for all, even separatists

Grenville Cross writes that the Justice Department should protect the integrity of the legal system by making clear that lawyers representing the Hong Kong National Party’s founders won’t face prosecution

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Convenor of the Hong Kong National Party Andy Chan Ho-tin (left) and spokesperson Chow Ho-fai have filed separate legal challenges to the secretary for security’s ban on their party. Photo: Edward Wong

Published: 10:00am, 30 Oct 2018Updated: 10:09am, 30 Oct 2018

In September, Secretary for Security John Lee Ka-chiu made history by banning the Hong Kong National Party. He explained that the party had “a very clear agenda to achieve its goal of Hong Kong being made an independent republic”. He feared it might use force to achieve its goal, and was “building up ties with anti-China and pro-independence activists overseas”, as well as spreading “hatred and discrimination” against Chinese visitors to Hong Kong.

Once he reached his conclusions, Lee was undoubtedly within his rights in proscribing the party. The Societies Ordinance enables him to ban a society if he considers this necessary “in the interests of national security or public safety, public order or the protection of the rights and freedoms of others”. The banning order, moreover, takes effect upon the gazetting, and there is no grace period if those affected seek to challenge the ruling on appeal.

Once banned, the party became an unlawful society, which has significant ramifications. The ordinance stipulates that any person who “gives any aid” to an unlawful society is liable, on a first conviction, to a fine of HK$20,000 and imprisonment of 12 months. On a second, or subsequent, conviction, these rise to HK$50,000 and two-years’ imprisonment.

However, the ordinance allows the society, an office bearer or a member, to appeal to the chief executive in council within 30 days of the ban, and this has now happened. Two founding members of the party, Andy Chan Ho-tin and Chow Ho-fai, have separately challenged Lee’s decision. Having considered the appeals, the chief executive in council is empowered to “confirm, vary or reverse the decision”.

Not surprisingly, given that this is the first case of its type, Chan and Chow, neither of whom are legally trained, wish to retain lawyers to assist them with their appeals. The lawyers, presumably out of an abundance of caution, have apparently sought assurances from the Department of Justice that they will not, by providing legal services, fall foul of the prohibition on “aiding” an unlawful society. The department, however, has reportedly refused to confirm that they will not face prosecution, saying it has “no view” on the legality of their actions. This is extraordinary, given the Basic Law’s endorsement of legal representation.

Watch: What is the Basic Law of Hong Kong?