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
PUBLISHED : Tuesday, 30 October, 2018, 10:05am
UPDATED : Tuesday, 30 October, 2018, 10:09am

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?

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Article 35 stipulates that Hong Kong residents have the “right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies”. Although nothing could be clearer, the department has chosen to equivocate, thereby creating the most unfortunate impression that it has an interest in dissuading lawyers from accepting instructions in this particular case, which is hopefully untrue.

Even if, technically, the lawyers might contravene the ordinance by providing Chan and Chow with help on their appeals (which is by no means a given), there could be no question of prosecuting them in consequence. This would not only contravene the Basic Law, it would also be an abuse of process, and would represent a wholly illegitimate use of the prosecutorial discretion.

After all, the Criminal Procedure Ordinance provides that the secretary for justice may decline to prosecute if “of opinion that the interests of public justice do not require his interference”. Quite clearly, the public interest does not require that the prospective lawyers of Chan and Chow be prosecuted for doing no more than helping them on their appeals. It beggars belief that they have not already been given the assurances they sought.

Freedom and national security can coexist in Hong Kong

Although we cannot know for certain what advice Secretary for Justice Teresa Cheng Yeuk-wah has received from her prosecutors, it appears to have been flawed. She must herself put things right, and assure the lawyers they have nothing to fear from simply accepting instructions to act. As her department’s own Prosecution Code explains, the secretary for justice is responsible for “applying the criminal law, (and) formulating prosecution policy”, and she must now take matters into her own hands.

Far from having “no view”, Cheng should take this opportunity to proclaim that citizens who are pursuing legitimate appeals are fully entitled to legal representation, and that their lawyers will not face any unpleasant consequences as a result of acting for them.

After all, if Chan and Chow lose their appeals to the chief executive in council, they may wish to judicially review the decision, and the case may proceed right up to the Court of Final Appeal. If so, they will almost certainly need legal help every step of the way. The sooner, therefore, the lawyers are told that they will not face prosecution for simply doing their job, the better it will be for them, for their prospective clients and for the integrity of the legal system.

Grenville Cross SC is a criminal justice analyst