Opinion | Gregory May: Read the Basic Law and respect the rule of law

By Grenville Cross

Diplomats discharge various functions in the course of their duty. Their main responsibility is to safeguard the interests of their nationals in the host country, whether resident or visiting. They also keep their home state informed about political and social issues, and convey views.

A diplomat is also involved in relationship building. If cordial ties can be fostered between states, everybody benefits. This is why a successful diplomat establishes good connections with government figures, respects local circumstances, and exercises appropriate discretion. Whereas a wise diplomat defuses tensions, cultivates better understanding, and enhances international harmony, a fool can cause great harm.

The framework for consular relations between sovereign states was established by The Vienna Convention on Consular Relations of 1963, to which most states are now party. It places the comity of nations at the heart of global diplomacy, and diplomats are enjoined to develop constructive relations while serving abroad.

The Vienna Convention provides that one of the consular functions involves "furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State, and otherwise promoting friendly relations between them" (Art.5).

However, some consular officials have either not read the Vienna Convention or have done so but disregarded it. They seek to upset relations with their hosts, perhaps believing they are not bound by the rules of lesser mortals, and choose instead to politicize their roles and indulge in grandstanding. The US Consul General to Hong Kong and Macao, Gregory May, is a case in point, and has repeatedly shown little interest in "promoting friendly relations" with Hong Kong.

On May 9, he addressed an online event organized by the Washington-based think tank, the Center for Strategic and International Studies (CSIS). The CSIS is no stranger to anti-China sentiments, and May must have felt right at home. Apparently, with a straight face, he denounced the extraterritorial reach of Hong Kong's national security laws as "transnational repression" but failed to mention that the US, on British soil, is using the extraterritorial provisions of its Espionage Act to pursue the Australian journalist, Julian Assange, for exposing US wrongdoing in Iraq, Guantanamo Bay and elsewhere. More chillingly, he also called upon the Hong Kong authorities to release the media magnate, Jimmy Lai Chee-ying, who is currently being tried on national security and sedition charges in the High Court, and has a wide following in US political circles.

As if this was not bad enough, May also called on the authorities to release "the NSL 47". This referred to the activists charged with conspiracy to commit subversion, but what he termed the "peaceful expression of political views." This was not only inaccurate, but also bizarre. After all, 31 of the defendants have already pleaded guilty (and are awaiting sentence), while the verdicts of the remaining 16 are imminent.

Unfortunately, May has form for irresponsible meddling in Hong Kong's internal affairs. On March 2, for example, when interviewed by Bloomberg News, he made similar calls for the release of Lai and other criminal suspects, for which he was rebuked by the Hong Kong Special Administrative Region government (which also condemned as "scaremongering" his criticisms of the new national security legislation, which flew in the face of his stated intention of improving bilateral ties).

Indeed, May appears to have been ill-intentioned from the outset. On Jan 25, 2023, only four months after his appointment, he also badmouthed Hong Kong at the CSIS. This caused the Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the Hong Kong Special Administrative Region to rebuke him for "vilifying Hong Kong's rule of law and freedoms."

At the heart of May's calls for the release of defendants undergoing trial is the West's idea that anybody can violate Hong Kong's criminal law with impunity. Any such notion is offensive to the rule of law and contrary to the traditions of the common law world, of which the US is supposedly a part.

No diplomat worthy of the name would have sought to interfere like this with the local criminal justice system, and May's behavior was extraordinary. It pointed not only to his ignorance of (or contempt for) the Basic Law of Hong Kong but also his unawareness of the need to safeguard the legal order.

The two trials he referenced are now in the hands of the judiciary, yet he nonetheless sought to interfere in both. If he imagined the HKSAR government would instruct the Department of Justice to end the two prosecutions, he was living in cloud cuckoo land. In prosecutorial matters, the department operates independently of the government, with the Basic Law stipulating that it "shall control criminal prosecutions, free from any interference" (Art.63). The interference contemplated can come from any quarter, whether governmental, diplomatic or otherwise.

If, moreover, May imagined that, by invoking his US consular status, he could cause the judges to terminate the trials of the suspects, he has again disregarded constitutional norms. The Basic Law could not be clearer, and the courts "exercise judicial power independently, free from any interference" (Art.85). Although he apparently regards himself as above the Basic Law, his consulate's legal section should have explained to him that he is not.

In the common law world (US included), a very serious view is taken if somebody attempts to pervert the course of justice. The phrase "course of justice" refers to proceedings before the courts of law determining questions of guilt or innocence. If an attempt is made to deflect, frustrate, impair or hinder the ability of a court to administer justice, the criminal law treats it as tantamount to "perverting" public justice. Whether May's conduct constitutes a crime is a question for the police, but he certainly appears to have sailed very close to the wind (as his legal section will hopefully have advised him).

However, under the Vienna Convention, consular officials can get away with a lot, no matter how reprehensible. They generally enjoy personal inviolability from arrest or detention (Art.41), and are not amenable to the "judicial and administrative" authority of the host State (Art.43). Although this gives them carte blanche, most diplomats do not abuse their privileges but there are always exceptions.

The online event May addressed was convened to discuss a CSIS report, released on May 7, entitled "The Erosion of Hong Kong's Autonomy since 2020: Implications for the United States." It was another US hatchet job and failed to applaud Hong Kong's resurgence after the insurrection in 2019-20. It was an attempt to embarrass China, as the giveaways indicated. Whereas the report was, it disclosed, "made possible by generous support from the US Department of State", the online event was "made possible by generous funding from the US Department of State". As always, he who pays the piper calls the tune.

Apart from May, another participant in the online event was his unlamented predecessor, Hanscom ("Candle Lighter") Smith. Anybody who lived through the insurrection will never forget Smith's failure to support Hong Kong in its time of need, the sight of him and his staff meeting covertly with anti-China forces in hotels and elsewhere, and his craven acquiescence in the punitive measures taken by Donald Trump against the city and its officials in 2020. However, once May replaced Hanscom Smith on Sept 16, 2022, there were hopes of a new beginning, but they were soon dashed. Although he initially waxed lyrical about "building on our longstanding relationships, shared interests and values," it soon became clear that he and Smith were cut from the same cloth.

As May knows, however badly he behaves, there is very little his hosts can do about it, short of declaring him "persona non grata". Despite his egregious behavior, even Hanscom Smith was not shown the door. Whenever diplomats who misconduct themselves are expelled, it invariably triggers tit-for-tat expulsions, and there are rarely any winners. In any event, May's successor could be even worse, however difficult that may be.

If May persists in his unsavory behavior, he should either be called out or ignored. If he imagines that crude meddling in Hong Kong's internal affairs will further US interests or win him friends, let him dream on. If, as seems likely, his political masters told him that China baiting is acceptable, he should have the guts to tell them it is counter-productive and achieves nothing.

If, however, May really wants to be objectionable, he can always emulate Hanscom Smith, and light some candles at sensitive times. However pathetic, it is preferable to disrespecting the Basic Law and interfering with criminal justice. Although it may not suffice to earn him the ambassadorship that has eluded him hitherto, there is no guarantee he would have got one anyway.

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

The article was first published in China Daily.