The Foreign Correspondents' Club Hong Kong

Beijing’s curbs on political rights in Hong Kong while ensuring rule of law for business is ‘unsustainable’, says top barrister

Beijing’s move to curb Hong Kong’s democratic freedoms while still trying to maintain confidence among businesses is unsustainable, according to Hong Kong’s top barrister.

Philip Dykes, chairman of the Hong Kong Bar Association, gave a talk on the rule of law. Photo: Sarah Graham/FCC

Philip Dykes, chairman of the Hong Kong Bar Association, also said he could not rule out a further interpretation of the Basic Law by the Standing Committee of the National People’s Congress (NPCSC), which he described as “the greatest threat to the rule of law in Hong Kong”.

Speaking at the March 5 club lunch, the newly-elected head of the Bar Association told members that he believed Hong Kong’s judges to be independent and could be relied upon to uphold the rule of law for years to come. But he called on “other decision makers in government – the administrators and the lawmakers” to be “ guided by the rule of law and realise that there are no preferred outcomes of judges and they should not be pressured into making decisions one way or the other”. Dykes was referring to the furore surrounding the long and drawn out legal process involving pro-democracy activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang.

In a Q&A session, Financial Times reporter Ben Bland asked Dykes whether Beijing’s move to heavily circumscribe Hong Kong’s political rights while maintaining confidence among businesses was sustainable, the barrister said: “Ultimately you can’t have one without the other. You can’t hold yourself out as being a system that subscribes to the rule of law and are particularly good at dealing with commercial and arbitration matters but not also accept the burdens that go with that which are dealing with the nitty gritty of political problems, protests, freedom of expression. You will be found out. It’s unsustainable.”

Dykes was also asked about Chinese president Xi Jinping’s move to consolidate his power by indefinitely extending his term as leader, days before the NPCSC is due to vote on it. Dykes said extended terms of power brought about by a change to the constitution “don’t usually end well” but would not be drawn on whether the move would affect Hong Kong’s rule of law.

On the matter of Beijing’s 2016 interpretation of the Basic Law in the case of the oath takers disqualified for not pledging allegiance to China, Dykes said he could not rule out future interventions by the Chinese government, particularly regarding the election eligibility of pro-democracy candidates. “One can easily foresee this bubbling up to become a legal issue,” he said.

Hong Kong’s judicial independence not under threat, says former top judge

Judicial independence is not under threat in Hong Kong, in spite of the recent controversy surrounding the jailing of pro-democracy student activists, according to a former judge of the Court of Appeal.

Former judge Henry Litton gave his views on the independence of Hong Kong’s judiciary. Photo: Sarah Graham/FCC

Henry Litton CBE had outlined several cases that he believed had demonstrated that the city’s judiciary operated inefficiently and wasted taxpayers’ money, such as the ongoing judicial review case of Falun Gong practitioner Pun Lin Fan. But it was the controversial and globally publicised case of student activists Joshua Wong, Nathan Law and Alex Chow that was at the forefront of audience questions.

The three were jailed in August for their roles in a demonstration that helped spark the city’s large-scale Occupy Central pro-democracy protests in 2014. They were later charged and sentenced by then Eastern Magistrates’ Court Magistrate June Cheung Tin-ngan who ordered Wong and Law to undergo 80 and 120 hours of community service respectively, while Chow received a three-week jail sentence suspended for one year. However, this year the Department of Justice lodged a judicial review application insisting the three former student leaders deserved harsher sentences. Wong and Law were subsequently jailed for six and eight months respectively.

The reaction that followed saw, among others, eminent UK barristers and former Hong Kong governor Chris Patten declare the move politically motivated.

But Hong Kong-born Litton, who was appointed to the Court of Appeal in 1992 and became a permanent judge of the Court of Final Appeal in 1997, argued that the decision to jail the trio was based on principles of law. He said: “There are two cardinal points in sentencing: the court looks to the crime itself, its gravity, its effect on other people.” He continued: “The court will then secondly consider such mitigating circumstances as exist which might reduce the normal tariff which would be applied for that particular crime. But no mitigating circumstance could be so superior as to downgrade the crime itself.”

Litton, now an honorary professor at the University of Hong Kong Faculty of Law, said that violent crimes – “…and I think the cases that you’re talking about certainly involve violence because I think barriers erected by the police were broken down violently and that not only were people’s life and limb put at risk but people actually were injured” – required a custodial sentence by law.

“What mitigating circumstances there might be would perhaps reduce the term but generally speaking would not change radically the type of punishment to something less than imprisonment. These are the general principles that I suggest apply to the case in question,” he said.

Club member Mark Pinkstone quoted a letter from jurors that suggested the jailing of the three young activists was double jeopardy.

“An appeal by the Secretary for Justice to the Court of Appeal could only proceed on the basis of an error of law in that in sentencing in the magistracy the magistrate had not applied the proper principle relevant to the facts of the case. Constitutionally that’s how the matter got up to the Court of Appeal for its judgment and it has nothing to do with the principle of double jeopardy that you’re talking about,” Litton said.

When asked by journalist Vaudine England whether the perceived sense that Hong Kong’s judicial independence was now under threat, Litton replied: “The short answer is no. I do not see any threat to judicial independence in the situation as it exists today in Hong Kong. Now if you want an argument I’m happy to put up an argument, but I’m not expressing an opinion.”

British government needs to be robust over Sino-British Joint Declaration, says Jonathan Dimbleby

BBC presenter and historian, Jonathan Dimbleby, left, talked about the state of world politics when he appeared at the FCC. Photo: Sarah Graham/FCC

The British government should be “very robust” over whether it believes the Sino-British Joint Declaration on Hong Kong’s handover has been violated, veteran broadcaster Jonathan Dimbleby said, the week after China’s foreign ministry dismissed the treaty as a “historical document that no longer has any realistic meaning”.

The BBC Question Time host and historian said that while the U.K. government had last week reiterated that the 1984 treaty was binding, the overall criticism had been “muted”.

He said that if it was agreed that a violation had taken place, then it would “call into question whether you could trust China’s word when it came to signing documents”.

“I think that the British government should be very robust in saying whether or not this agreement has or has not… been violated,” he said

He added that he believed that independent trading relations, post-Brexit, could “overshadow concern for the evolution of democracy here [in Hong Kong]”.

Dimbleby revealed that as a journalist in the 1990s he came across minutes of meetings conducted in the late 1980s between the British government and Beijing that showed the U.K. government of the time had little intention to push for democracy in Hong Kong after the handover. In public, he said, the Conservative government was assuring Hongkongers that they would achieve democracy as part of the agreement.

Watch Jonathan Dimbleby’s Q&A session

“In the way that one does as a writer or journalist… I came across minutes of meetings conducted in late 80s between the British government and the Beijing government. In public, if you look back… the British government were saying to the people of Hong Kong yes, you will have democracy and we want you to have more of it, we will fight for that.

“Simultaneously the British government was reassuring Beijing they had no intention of rocking the prevailing apple cart and central government need have no fear that democracy would be taken forward in the way that a lot of people, as the polls showed here, wanted it to be.

“I came away from that experience and wrote about it without great faith in how my government would deal with Beijing,” Dimbleby told the packed July 5 club lunch.

The night before, Dimbleby had taken part in a BBC World Questions debate alongside Joshua Wong, one of the student leaders of Occupy Central and the founder of the pro-democracy Demosisto party. He praised the 20-year-old, saying: “Joshua Wong is a remarkable illustration of the intelligent young of this generation.”

In a change to the usual club lunch formula, the floor was opened up to questions from the outset. Dimbleby was asked what he thought of Brexit, the U.K. General Election outcome, and Donald Trump as president.

He said: “I woke up like many people after my country voted for Brexit in a state of shock and astonishment. Those who supported Brexit were equally astonished because they never expected to win.”

On the U.S. question, he continued: “Like many people I believed that Donald Trump would never emerge as President of the United States. I thought it would be catastrophic if he did and that most people in the United States would recognise that to be the case.

“Latterly in my own country I did not imagine the Prime Minister, who was a vicar’s daughter, who said there were no circumstances in which she would call a snap election, deciding to do so. The Conservatives are in office, but they’re hardly in power. And the rest of the world is on tenterhooks.

“I think we’re in very uncertain times, I think we are in quite alarming times with the unpredictability of the American President.

“The one thing about the leaders of Russia and China is that they may behave in unpredictable ways but we are quite clear about what their broad intentions are in the West and that is hugely unsettling… for all people in a way that I never imagined.”

Dimbleby added: “If you’re a journalist you have to be glass half full and I’m generally half glass full, but I’ve never felt closer to being glass half empty.”