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Top London QC under fire for agreeing to prosecute Hong Kong pro-democracy campaigners

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Baroness Kennedy describes David Perry’s decision as ‘a source of shame’

A top London barrister has come under fire for agreeing to prosecute pro-democracy campaigners in Hong Kong.

David Perry QC of 6KBW College Hill has reportedly agreed to act for the Hong Kong government next month as part of a prosecution against media mogul Jimmy Lai and eight other pro-democracy activists accused of taking part in a 2019 anti-government protest.

Hong Kong’s court of first instance on Tuesday granted the justice department’s application to fly in Perry to handle the case, noting its complexity and “real and significant impact on the exercise of the freedom of assembly in the future”.

It is alleged protestors disregarded police orders by turning an approved assembly into a march, which was not permitted.

All nine defendants were charged jointly with two offences: organising an unauthorised assembly and knowingly taking part in an unauthorised assembly. The trial has been set for 16 February.

Perry’s decision to accept the brief has been challenged by senior legal figures.

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Speaking to The Times (£), Baroness Helena Kennedy QC of Doughty Street Chambers and director of the International Bar Association’s Human Rights Institute, said:

“I cannot fathom why any reputable British barrister would provide a veneer of respectability to actions which are contrary to democracy and the rule of law. This decision will become a source of shame.”

Lord Falconer of Thoroton, the shadow attorney-general and former lord chancellor, said: “He must withdraw as he cannot continue in that role and remain consistent with the values of the UK. He is prosecuting some of the most well-known democracy campaigners.”

China imposed a national security law on Hong Kong in June last year. Since then, several thousands of individuals, including prominent politicians and campaigners, have engaged in mass street protests, against the crackdowns.

Overseas barristers require special high court approval before they can practise in Hong Kong on an ad hoc basis, and are mainly used if external advice is needed for complex cases.

British barristers traditionally accept work under the ‘cab-rank rule’; that is, that they will accept instruction on cases within their knowledge and expertise provided they are able to do so. However, the bar regulator stipulates in its Code of Conduct a number of exceptions to the principle, including that it does not apply if accepting a brief would require a barrister to undertake foreign work.

Perry has already tackled high-profile cases in Hong Kong, including the bribery trial of the former chief executive Donald Tsang in 2017.

Perry has been contacted for comment.

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43 Comments

Anon

Private equity crunchers who facilitate the diversion of UK-generated income to Chinese capital owners better just stay quiet in this one.

(31)(6)

Anonymous

Why are their voices less valuable than your own? Even private equity crunchers who facilitate the diversion of UK-generated income to Chinese capital owners have a voice to be heard, let’s be clear, if they have time or care to comment.

It is too late to build a nation state for Britain. Britain wants export and business. Otherwise, why did we vote for f ing Brexit?

(1)(0)

Anonymous

As abhorrent as I find China’s actions in HK, if we start shunning advocates for taking up unpopular cases where does it stop? We cannot use such vague measures as compliance with “values of the U.K” (Whatever they are). If we are not careful we will see what is happening in the USA replicated here, where people are being cancelled, harassed, shunned and silenced for association with the wrong groups.

If we base whether or not a prosecution should be supported on how popular or authoritarian the prosecuting authority is, where do we draw the line? There are many who would oppose the actions of western nations in recent prosecutions, should we pester QCs who take part in these cases?

(41)(122)

FlourPour

And if anything making a good case for the indefensible is what earns barristers the big bucks. If this QC gets this case on his CV he’ll have work from Central Asian and Russian oligarchs for a lifetime!

Morally bankrupt but morals don’t pay school fees, do they?

(16)(40)

Anonymous

Should the HK government not be allowed representation, that would lead to the breakdown of the rule of law? Barristers are meant to present a case to the best of their ability on behalf of their client, regardless of who it is. They are not cheerleaders for whatever is popular or “moral” as you say. Or else why would advocates represent murderers, rapists or child molesters? How is a high profile criminal case much different?

(29)(105)

FlourPour

Never said any of that. You’re reading a cause for outrage into my comment.

I do, however, like the contention that refusing legal representation to the HK government would be what finally leads to a breakdown of the rule of law.

You realise that this barrister would be defending a law which China imposed on HK, bypassing the city’s own legislature? A law which (among other things) allows for trial without jury for crimes which are drafted as broadly as possible to capture those protesting for HK’s right to self-determination.

(52)(5)

Alex

The purpose of non-discrimination in the context of murderers and rapists is that they are individuals facing the full might and resources of the state. It is about balancing an unequal power dynamic. This is totally different to representing an oppressive government, particularly where the crime is political and features the issue of state power. As for barristers not being cheerleaders for what is popular or moral – why aren’t they? Shouldn’t they be? What is the point of the rule of law otherwise?

(48)(2)

Anonymous

Because morality changes, it is subjective. Why bother having advocates if they are to be hounded for representing the unpopular or ‘immoral’, why not trial by twitter poll? The law should not be open to popularity contests, nor should we support an environment where advocates might be discouraged from taking an unpopular client on the basis of peer pressure and subjective morality.

The nature of the state and the nature of the charge is irrelevant, because to make it relevant you would need to cast a personal moral judgement. If you are capable of saying “This person/group/state/company does not deserve the best representation they can acquire because I find them to be immoral/oppressive/against my political views, then you are not interested in justice. You are interested in forcing your views onto others, that is not the rule of law.

Alex

Laws, rules and professional obligations do not operate in a moral vacuum. Of course, David Perry QC had the right to go, but he did not have to. This is an occasion where this barrister has had to make a choice to travel to Hong Kong to represent the government in an inflamed and controversial political atmosphere. Both accepting and refusing the instructions would have political ramifications. Politics engages questions of morality. It is precisely the morality of his choice that is being criticised.

As for your second statement, it is precisely because I disagree with “forcing your views onto others” that I do not think a British barrister should be lending legitimacy to the HK/Chinese authorities in this instance.

Abraham C.

No one is saying they don’t deserve representation. They’re saying the QC should not have taken the case.

(36)(1)

Anon

But if everyone is pressured and influenced into not representing them.. what representation would be left? There is a distinction between judging the actions of another and saying they “must withdraw” and they will become a “source of shame” as the two quotes provided indicate.

Abraham C.

You’re wrong precisely because not “everyone” is or would have been pressured. If a Hong Kong silk was appointed or perhaps from another common law country, no one would have batted an eyelid. Here, it’s a Barrister from the very country that is most vocal against what’s going on in HK because it breaches an international agreement between them.

Furthermore, there is no difference between quietly judging someone and vocally criticizing them aside from speaking your mind.

BCL (Oxon)

You are wrongly focusing on -who- the defendant is rather than what -law- the barrister is helping to enforce. The principles such as cab rank rule (which, by the way, conceptually only relates to who the defendant is, and not whether the law is just) was developed in a legal system which has checks and balances to ensure the law is “good.” For example, people elect MPs to enact laws. (Democracy) They can go to court to strike down laws that are unconstitutional. (Judicial Review)

The National Security law in HK is subject to neither of these mechanisms. It’s a draconian law with constitutional status that was imposed by decree. Perry also is not bound to take up the case and is free to refuse as its foreign work. Before you start reciting these basic theoretical concepts such as the cab rank rule that you learned in Criminal law, please take a look at the wider context of the subject matter that you are applying them to.

(38)(2)

History (BA)

“They can go to court to strike down laws that are unconstitutional. (Judicial Review)”

Really?

Anon

No one above you in this chain of comments mentioned the cab rank rule…

BCL (Oxon)

@History (BA) Absolutely. Look up Ng Ka Ling v Director of Immigration for the seminal case on Constitutional Review in Hong Kong. I am surprised that people are surprised that Hong Kong’s legal system is sophisticated.

Anonymous

People with real BCLs don’t feel the need to put Oxon after it.

Anonymous

“Morally bankrupt but morals don’t pay school fees .”
Earning a good living at the bar does not mean leaving your personal code at the door of the court it may mean some don’t have anything to leave .

(6)(1)

Anonymous

I’ll leave the moral hand wringing to those that care. I’ll go wherever the brief is highest and argue what I’m told.

(6)(21)

Anonymous

Well said

(1)(0)

LLB'er

This would be a meritable argument if there was any kind of debate to be had on whether China’s actions are wrong or not. You ask where we draw the line: the answer is somewhere well below China’s actions in HongKong.

When the actions of a nation are so abhorrent that nobody with a modicum of moral decency would support it, you can be safe in the knowledge that any criticism they recieve is justified.

(32)(4)

Anonymous

Because morality isn’t subjective at all, nor does it change over time.

(25)(3)

Anonymous

What was the morality in Germany in 1943?

(0)(0)

Denis E

The “line” as you describe is right there in the article. The bar code of conduct states the cab rank does not apply if it requires foreign work. What are you yammering on about?

(16)(1)

Anonymous

The main issue was whether his decision to take the case was voluntary. The bar code excludes foreign work from the cab rank rule. His decision was therefore fully voluntary, and not required by any ethical obligation. Therefore people are entitled to judge him however they wish.

(28)(0)

Abraham C.

For those squealing about the cab rank rule, please note this is not a normal criminal case at all. There is a special mechanism in which he has to seek approval from the Hong Kong Court and fly all the way over there during a global pandemic to prosecute this particular case. The cab rank rule was designed to make it more palatable to represent defendants in the interests of justice because they are after all presumed innocent and someone needs to do it.

It does NOT justify a silk flying across the globe to enforce authoritarianism and crack down on democracy activists for millions. Furthermore, there’s no complexity of legal issues for him to weigh in on – the law is quite clear in how draconian it is. He’s basically there as a political prop for the Chinese government to whitewash the crackdown and make the UK look complicit in HK’s deterioration. We are well within our rights to “shun” this QC and the UK government should intervene however possible.

(45)(0)

Anon Mouse

Or he could just go there and, I don’t know, mysteriously lose? Even QCs can have a bad day in court 😉

(3)(13)

Without prejudice

I suspect some of the cases in which Baroness Kennedy will have represented clients on ECHR grounds would severely trouble the moral compass of large swathes of the law abiding population.

(7)(20)

With prejudice

Care to give an example of a comparable case?

(9)(1)

Anonymous

Although this quote is far removed in time (1821) “An advocate, in discharge of his duty, knows but one person in all the world, and that person is his client”, the advocate’s loyalty to client remains.

(6)(4)

Anonymous

Personally, I would not wish to and would not be a part of Chinese oppression in Hong Kong. It is fundamentally different from representing terrorists, rapists etc in this country because everyone, no matter how bad they may be, deserves the best representation. In Australian parlance, it makes Perry a “shit bloke”, but he is not the first and he will not be the last and as long as Hale, Neuberger and Sumption etc are out there in the pay of the Chinese, who can blame him. He has put money ahead of decency and morality but the world is full of people like him.

(39)(3)

Anonymous

There is no better, more selfless man than Lord Sumption, who can defend the British constitution.

(0)(0)

Anonymous

I’m no expert, but a 5-minute internet browse would reveal that the constitutional position is a tad more nuanced than suggested by BCL (Oxon). The power of the mainlaind Chinese government to make laws applying to Hong Kong by decree is provided for by Annex III of the Basic Law. The controversy here seems to be as to whether in using that power for this particular purpose, China has undermined the underlying ‘one country, two systems’ principle.

Also, you can’t ‘strike down’ laws that are ‘unconstitutional’ by way of judicial review.

(63)(16)

BCL (Oxon)

No one has ever said the imposition was not in accordance with the Basic Law, which, by the way isn’t all that great of a document either because it allows the NPCSC to enact laws through “promulgation”, bypassing the local legislature. That fundamentally contradicts with the two systems principle.

Furthermore, it’s most unfortunate that your 5 minute google search didn’t return Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 315.

(11)(32)

Anonymous

Oh bless. BCL (Oxon) thinks the HK laws matter in all this. Who is going to tell them how it works?

(25)(0)

BCL (Oxon)

You said there’s no Judicial review. There is. You were wrong, so i guess the person that tells you how it works is me.

(1)(19)

Abraham C

“HK law doesn’t matter in all of this” on an article about HK law. 😂😂

(1)(15)

Barrister et al

David Perry is a top man and has more integrity in the tip of his finger than the vast majority have in their entire bodies.

These are massive issues which I must admit I can’t completely my head round but I’m absolutely certain he wouldn’t have taken it if it wasn’t the right thing to do. Do we start refusing briefs because we object to the law? I don’t think so. Do we refuse to act for vile oppressive regimes? Maybe but on what basis do we judge them to be so? We do loads of trade with China and the arms sales we make to Saudi Arabia generates tax that pays for our police and NHS etc. Shall I die on the street rather than get treated by an NHS doctor because his salary is in part funded by arms sales to Saudi Arabia whose regime blatantly murdered a journalist etc etc? Can any of us really cast the first stone?

(102)(73)

You can call me Et Al.

I’m happy to be at the front to cast stones, and I have my fake beard ready.

And with his/her terrible writing style, modelled on a third string school debater that reads from a verbatim script, I hope “Barrister et al” is not a real barrister.

(6)(9)

You Get Me, et all?

There’s some truth in DAT!

(4)(0)

An Real Barrister

It’s not the job of counsel to consider the rightness or wrongness of the job they have been given.

You do know that British barristers are often instructed by Caribbean states to argue FOR a death sentence to be upheld
at the Privy Council, right here in London, right?

(4)(0)

Bloody Common Sense

Yes, you know that most people in the UK support the death sentence too? Or are you that out of touch with ordinary people.

(1)(0)

An Real Barrister

I do. I’m not sure how my comment can be construed as being out of touch, though.

I didn’t actually express a view on the death penalty in my comment.

I was commenting on the fact that counsel are often instructed to argue controversial points closer to home that don’t fit with the establisment narrative.

(2)(0)

Comments are closed.

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