Opinion | Jimmy Lai appeal: Political posturing an affront to the United Nations

By Grenville Cross

On April 8, 2022, an "international legal team" representing the media magnate, Jimmy Lai Chee-ying, filed an "urgent appeal" with the United Nations, in New York. It addressed what was called "the legal harassment against him and his imprisonment in Hong Kong", in violation of his "internationally protected rights to freedom of expression, freedom of assembly, and the right to peaceful protest".

The three-barrister team, from Doughty Street Chambers, in London, indicated that Lai is currently serving 13 months' imprisonment for his participation in four unauthorized assemblies, and that he awaits trial on charges of colluding with foreign forces and sedition, with some of his assets having been frozen, as is common in criminal investigations where assets are suspected to have been used to facilitate crime.

The team called on the UN's "experts", meaning its special rapporteurs, to "consider all the cases against him", as well as the threats he faces, claiming they constitute "prosecutorial, judicial and legal harassment". To spice things up, its leader, Caoilfhioon Gallagher QC, declared that Lai faces "a barrage of spurious cases", and, for good measure, tossed in an allegation that the "Hong Kong and Chinese authorities are weaponizing the law against him". On any view, therefore, this was a cynical attempt to pull the wool over the UN's eyes by people who wanted publicity.

Doughty Street Chambers bills itself, modestly, as "a set of internationally renowned barristers with a reputation for excellence", involved in cases with "a strong emphasis on human rights and civil liberties". If true, its standing will hopefully not have been tarnished unduly by Gallagher's antics, not least because, as its website reveals, she was previously adjudged "one of the 100 most influential Irish women living outside Ireland". As for her two juniors, Jonathan Price, we are assured, is "highly regarded", while Jennifer Robinson is said to be "brilliant", which makes their involvement with Lai's "appeal" all the harder to fathom.

At this point, however, a little digging yields some gems. Among the "associate tenants" of Doughty Street Chambers is none other than Paul Harris SC, the ex-chairman of the Hong Kong Bar Association, whose ignominious tenure is best remembered for his extravagant criticisms of the National Security Law and the police force, and who decamped within five hours of having been interviewed by officers from the force's national security division. According to Hong Kong Free Press, Harris is "involved in arranging" for Baroness (Helena) Kennedy QC, a leading light in Doughty Street Chambers, to represent Lai in forthcoming legal proceedings, which should surprise nobody. She is, after all, a heroine of the UK's anti-China movement, having been sanctioned by Beijing in 2021, and is never happier than when stirring things up.

In 2019, for example, when Kennedy chaired the International Bar Association's Human Rights Institute, the IBA, in a politically charged gesture, awarded its Human Rights Award to the lawyer-activists, Martin Lee Chu-ming and Margaret Ng Ngoi-yee. In 2021, moreover, she condemned as "a source of shame" the decision by her fellow barrister, David Perry QC, to prosecute a trial in Hong Kong, thereby compounding the shameful pressure that ultimately led to his withdrawal from the case. Again, in 2021, when Sir Geoffrey Nice QC, the patron of the virulently anti-China Hong Kong Watch, organized his now notorious "Uyghur Tribunal", she eagerly signed up as its "External Advisor", and, as was to be expected of a kangaroo court, it duly "convicted" China of genocide in its Xinjiang region.

Although the exact role, if any, played by Harris and Kennedy in Lai's "appeal" is unclear, it would not be unreasonable to suppose, given their track records, that Gallagher will have consulted her chamber mates at some point.

Quite what, in practical terms, Gallagher expects the UN to do with Lai's "appeal" is unclear, and there appears to have been no steer from either Harris or Kennedy. It will, hopefully, recognize a publicity stunt when it sees one, and call out a brazen attempt to malign Hong Kong and slander its legal system. Gallagher, unfortunately, has not disclosed who is financing Lai's "appeal", but there are numerous organizations, including Apple Daily (Taiwan), Hong Kong Watch (UK), and the Hong Kong Democracy Council (US), that delight in bankrolling this sort of prank. Yet whoever is calling the shots, they will know full well that Lai's "appeal" cannot assist him one iota, as the courts in Hong Kong are independent and capable of withstanding political pressure from any quarter.

As it is so obviously unmeritorious, Lai's "appeal" is strong on sensationalism and weak on substance, and shored up with platitudes. As he was convicted of some of the unauthorized assembly charges after he pleaded guilty, Gallagher can have little cause for complaint, but, regardless of whether he was found guilty or pleaded guilty, he enjoys a right of appeal against conviction and sentence. Although, by alleging its complicity in the "harassment" of Lai, she has sought to besmirch the judiciary, Gallagher did not disclose to the UN that, only 10 days previously, on March 30, 2022, the President of the UK Supreme Court, Lord Reed, had declared that the city's courts "continue to be internationally respected for their commitment to the rule of law", information it could have found very helpful, and this was not all.

The UN was not advised, for example, that, under its Basic Law, the International Covenant on Civil and Political Rights (ICCPR) applies in Hong Kong (Art.39), and that the Court of Final Appeal has upheld the constitutionality of the law which criminalizes unauthorized assemblies and creates a notification scheme (FACC 1/2005).

Although Gallagher has sought to sensationalize Lai's convictions for participating in unauthorized assemblies, she, as a member of Doughty Street Chambers, should have known that, under the ICCPR, reasonable restrictions prescribed by law are permissible on the right of peaceful assembly, as where, for example, they are necessary in the interests of public safety, public order, or public health, and it is Lai's disregard of these factors that contributed directly to his predicament.

It is certainly true that Lai has powerful allies in foreign parts, but that does not mean he can disobey the law with impunity. If he thought that the people who rolled out the red carpet for him when he went to Washington DC in 2019, including the former vice-president, Mike Pence, the former secretary of state, Mike Pompeo, and the former national security adviser, John Bolton, would ride to his defense, he was very much mistaken. In Hong Kong, as Lai is now discovering, and as Gallagher would have known had she consulted the Hong Kong Bar Association, nobody is above the law, no matter their wealth, political connections or foreign clout.

This, of course, does not mean that Lai, who is facing national security charges, will not enjoy the protections traditionally available to suspects at trials in the common law world, including the presumption of innocence and the right to legal counsel. During the proceedings, he will be entitled to the fair trial guarantees contained in the ICCPR, that have been incorporated into the National Security Law, with the Law also stipulating that "human rights shall be respected and protected in safeguarding national security in the Hong Kong SAR" (Art.4). Once Lai is tried, moreover, he will only be convicted if, as in the UK, his guilt is proved beyond reasonable doubt.

It is, therefore, extraordinary that Gallagher's team disclosed none of this to the UN, thereby depriving it of crucial information. As Doughty Street Chambers handles cases with "a strong emphasis on human rights", Gallagher's team should, before wading in, have familiarized itself with the contents of the National Security Law, and, had it done so, the UN could have acquired a complete picture of the human rights guarantees available to national security suspects like Lai. Instead, therefore, of bleating away about rights and freedoms "vanishing fast", Gallagher's team should have been making full and frank disclosure, and its failure to do so has made a nonsense of their client's "urgent appeal".

By any yardstick, therefore, Lai's "appeal" is frivolous and an affront to the UN, and can achieve nothing. If its purpose was to assist Lai, it is a failure, as the wheels of justice cannot be derailed by ruses like this. If it was imagined that it would place Hong Kong in the doghouse, this will have been thwarted by the absence of transparency. If it was thought that Lai's situation could facilitate a collateral attack on Beijing, it has also flopped, given the inflammatory tone and lack of legal substance.

If, therefore, Doughty Street Chambers wishes to retain its "reputation for excellence", it should urgently remind its members that they are supposed to be in the business of formulating fact-based legal submissions, not political posturing.

(Source: China Daily)

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

Read more articles by Grenville Cross:

Opinion | Resignation of UK judges a result of political pressure

Opinion | Hong Kong's assured future beyond 2047 a fillip for everybody