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When lawyers decided to bring down Hong Kong’s Chief Executive

One of the signs that Hong Kong has a world-class legal system is the way judiciary and government often disagree on outcomes. That shows healthy independence. But there have been cases in which people in the city’s legal sector, using taxpayer legal aid money, attack the Chief Executive to create political theatre and hurt our community.

They have directed heavy legal weapons at the city’s topmost leader, leaving him or her humbled, in danger, or even crushed and humiliated. Top retired judge Henry Litton, a learned chronicler of Hong Kong legal stories, tells one of the stories below, with another published here.


TRUMPED-UP CHARGES AND FANCIFUL GROUNDS

THE ISSUE: The dissertation on the nature of “Hong Kong People Govern Hong Kong” and “A High Degree of Autonomy”, given by the Deputy Director of the Legal Affairs Committee of the National Peoples’ Congress on 24 November 2024, should sound as a wake-up call to the legal profession.

And more particularly to lawyers acting for the Chief Executive in court proceedings: this includes lawyers in the Secretary for Justice’s department.

THE NATURE OF THE CE’S OFFICE

Under the Basic Law, the CE is both the head of the executive branch of government (Article 60) and also “represents the Region” (Article 43).

The honour and renown of the Region therefore resides in the person of the CE.

This is no trivial matter.

It is particularly important with regard to Hong Kong’s relationship with the Central Government and with entities overseas. To allow the standing of the CE to be debased is to diminish the authority of the local government, and it shows lack of respect for the Central Government which had appointed the CE to his office.

And yet, time and time again, High Court judges have allowed the CE to be dragged before the court, on trumped-up grounds and fanciful complaints. Examples abound.

THE ABUSE

Take the case of Kwok Cheuk Kin v Chief Executive & The Government of the HKSAR [HCAL 103/2014, Au J 25/5/2015] where the applicant sought leave to apply for judicial review of: (a) the CE’s report to Beijing, made in early 2014, on the method for selecting the CE in 2017, and for forming Legco in 2016 and (b) the CE’s report regarding amending the methods for selecting the CE and for forming Legco.

These are matters of particular concern to Beijing, responsible for development of representative government in the Region.

TOTAL NONSENSE

Kwok lodged his statutory form (Form 86) in August 2014, seeking orders to “quash” those reports. This was total nonsense. The CE was accountable to the Central Government for his or her governance of the Region, not to a High Court judge.

The CE had reported to Beijing months before Kwok lodged his application. It was an accomplished fact. How could the reports have been “quashed” by a judge? The relief as sought by Kwok was well outside the court’s jurisdiction. Assume, for instance, the CE had recommended to Beijing that only donkeys should serve in the 2016 legislature; that would still have been a matter for Beijing, not for a Hong Kong judge.

Kwok’s application was for leave to start proceedings: the matter was between him and the judge in chambers: no one else.

THE PUBLIC HAD TO PAY FOR IT

It should have been dismissed out of hand, with two simple words: “Application dismissed”. 

End of story.

Instead, we see, astonishingly, eight months after Form 86 was lodged, the “parties” in open court, with Kwok represented by Martin Lee SC and a junior barrister, instructed by the firm in which Albert Ho Chun Yan, chairman of the Democratic Party, was a senior partner.

All on Legal Aid.

And more astonishingly still, we see the CE in court, represented by three barristers no less, one a Senior Counsel.

Note this well. Kwok had still not obtained permission to start proceedings; the question still remained: should he be given permission (“leave” under the rules)? Unless leave was given, and the CE served with an originating summons, seeking reliefs against him, he was simply not a party before the court. He had nothing to answer for.

What, then, should counsel acting for the CE have done in these circumstances? If Senior Counsel was mindful of the rules governing the proceedings, and the constitutional standing of his client, this is what he should have said to the judge:

“I should not be here. My client the CE should not be here, represented by me and my two juniors. Order 53 rule 3 of the High Court rules requires you to determine Kwok’s application ex parte, without my client being vexed to appear.

I have nothing to say in response to Mr Lee SC’s submissions. You can see for yourself that they are total nonsense. He is playing games with the judicial process. I decline to take part in such games. That is all I have to say.

To do more debases the rule of law and demeans the standing of my client the Chief Executive”. 

Full stop. Sit down.

COURT USED FOR POLITICAL THEATRE 

Instead, what we had was a full day’s hearing and, subsequently, a 17-page so-called “judgment” delivered by the judge at the end of May 2015, dismissing Kwok’s application. By that time, the matter was as stale as a hundred-year-old egg. In August the year before, Beijing had pronounced its decision on the matters raised by the CE:  the “831 Decision” or “August 31 Decision”. This so incensed the agitators that it led to the Occupy Hong Kong movement later in the year.

It can be seen in Au J’s “judgment” that counsel debated, for instance, on whether the proceedings were “academic”. The absurdity was disguised by the flummery, the bowing and scraping, the “My Lord” this, and “My Lord” that.

Who won in the end? Kwok lost, of course.

But his leading counsel Martin Lee SC won hands down. He had successfully converted the court into a political arena, and demeaned the standing of the CE in the process. All paid for by the taxpayers.

THE KNOCK-ON EFFECT

The rot continued apace, to the extent that, in October 2019, the CE’s traditional Policy Address given in the Legco chamber was violently interrupted and she had to be evacuated from the chamber, to continue the Address on air.


That incident reflected badly on Hong Kong, but the next part of the story gives an account of an even more shocking attack on the city’s Chief Executive. It appears on this website here.


The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.

He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.

Illustration at the top by fridayeveryday.

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