RE MR DAVID PERRY, QC

HCMP 2221/2020

[2021] HKCFI 113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2221 OF 2020

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J U D G M E N T

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1.  The applicant, Mr David Perry QC, applies for ad hoc admission under section 27(4) of the Legal Practitioners Ordinance, Cap 159, for the purposes of advising, preparing, representing and appearing for the prosecution in HKSAR v Lai Chee-ying & Others, DCCC 536/2020, which has been set down for trial between 16 February and 1 March 2021. The application is opposed by the Hong Kong Bar Association. The Secretary for Justice, in her role as the guardian of public interest in ad hoc admissions, adopts a neutral stance.

Underlying Proceedings

2.  In DCCC 536/2020, all the nine defendants are jointly charged with two offences, namely, organizing an unauthorized assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Cap 245 (“POO”); and knowingly taking part in an unauthorized assembly, contrary of section 17A(3)(a) of the same Ordinance.  The prosecution case may be outlined as follow.

3.  On 12 August 2019, the Civil Human Rights Front (“CHRF”) submitted a notification of intention to hold public meeting and procession, informing the police of their intention to hold (i) a public assembly at Victoria Park; (ii) a public procession which would start off from Victoria Park and end at Chater Road in Central; and (iii) a public assembly at Chater Road on 18 August 2019.  The Commissioner of Police on 15 August 2019 issued a letter of no objection to the CHRF to hold a public assembly in Victoria Park but, having regard to the interests of public order and public safety and for the protection of the rights and freedoms of others, objected to the holding of the public procession from Victoria Park to Chater Road and the public assembly at Chater Road.  The CHRF then lodged an appeal to the Appeal Board on Public Meetings and Processions.  In view of the series of violent incidents that happened in the recent public events, the Appeal Board considered that the proposed public procession and public assembly would pose serious threat to public safety and public order.  The Appeal Board therefore upheld the Commissioner of Police’s decision and dismissed the appeal.

4.  On 18 August 2019, at about 2:30 pm, thousands of protesters assembled at Victoria Park.  D1, D2, D4 to D9 took the lead to leave Victoria Park and marched from Tin Hau, through Causeway Bay, Wan Chai, Admiralty to Central.  D1 and D4 to D9 held a large banner forming the head of the procession whilst D2 held a microphone and led participants to chant slogans.  D3 joined in the head of the procession at Causeway Road and held the banner together with D1 and D4 to D9.  During the procession, D1 to D9 led thousands of protesters to march along Causeway Road, Yee Wo Street, Hennessy Road, Queensway, Des Voeux Road Central, Ice House Street and Chater Road.  Traffic was seriously disrupted.  The procession only concluded some 10 hours later in the early hours of 19 August 2019.

5.  D1 to D8 have all pleaded not guilty to the charges.  D9 has indicated that he would plead guilty to both charges.  His case has been adjourned to 16 February 2021, the first day of the trial, for plea and sentence.

6.  In defending the charges, D1 to D8, represented by 5 local senior counsel and 7 local junior counsel, will mount a challenge against the constitutionality of the offences on both systemic and operational levels, the power and the right of the Commissioner of Police to object to the holding of a public procession, and the appeal mechanism of the POO.  Legal issues raised include:

(1)  whether criminalising the organisation or participation of a peaceful assembly or procession under s.17A of the POO amounts to a disproportionate restriction on the freedom of peaceful assembly or procession;

(2)  whether it was unlawful or unconstitutional for the Commissioner of Police to object to the holding of a public procession under s.14 of the POO:

(a)  when the Commissioner of Police considered that the statutory legitimate aims could not be met by imposing conditions on the public assembly or procession; and

(b)  where the notification scheme placed the Commissioner of Police in conflict of interest and risk of apparent bias to make the appropriate assessment in the event that the public assembly or procession was intended to voice out criticisms against the Police Force or the Commissioner of Police himself; and

(3)  whether the appeal to the Appeal Board constitutes a fair and public hearing by a competent, independent and impartial tribunal established by law; and if not, whether such deficiency can be cured by the availability of judicial review at the Court of First Instance.

Grounds of application and objection

7.  Mr David Leung SC, DPP, for the applicant, put forward four grounds in support of the application based on the public interest:

(1)  The importance of legal issues to Hong Kong’s jurisprudence.  It is in the public interest for Hong Kong to develop its own jurisprudence which would enjoy international recognition and reputation.  The legal issues to be determined in DCCC 536/2020 are of great and general importance and will have real and substantial impact on the development of local jurisprudence, particularly in view of the recent large-scale public order events taken place in Hong Kong.  The ventilation of arguments on these important legal issues is likely to go all the way up the appellate hierarchy to the Court of Final Appeal.

(2)  Public interest involves the proper administration of justice and the importance of the Court being adequately assisted by counsel in resolving the legal issues before it.  Given the applicant’s eminence, experience and expertise, he would be able to contribute significantly to the development of local jurisprudence.

(3)  It is in the public interest that the Department of Justice should be given as much freedom as possible in its control of criminal prosecutions.  The DPP’s professional view on what constitutes the best legal team available should be accorded with due weight and one is not so much concerned with whether local counsel of competence are available.

(4)  One local fiat counsel and two in-house counsel are assigned to assist the applicant in prosecuting the case.  There is no issue of local Bar being shut out, rather there will be benefits of cross-fertilisation.  The ad hoc admission of the applicant would help to develop and strengthen the local Bar.

8.  Mr Jonathan Chang SC, for the Bar, opposed the application also on four grounds:

(1)  No effort has been made to engage local leading counsel at all.

(2)  The legal issues said to be involved in the trial are not of unusual difficulty or complexity.

(3)  The applicant is unlikely to add significant dimension to the trial or the resolution of the legal issues said to be involved.

(4)  There are no countervailing considerations of equality of arms or fairness to the prosecution.

My views

9.  As is now well-settled, public interest is the overriding consideration in deciding an ad hoc admission of overseas counsel should be allowed.

10.  Mr Chang submitted that the subject offences have been applied and discussed by the Hong Kong courts time and again.  The resolution of the constitutional issues raised in the underlying proceedings involve the application of the well-established four-stage proportionality test to the statutory regime in the POO and are not of unusual difficulty or complexity.  They were also previously addressed in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 and Leung Kwok Hung v Secretary for Justice (No 2) [2020] 2 HKLRD 771.  He further contended that even if the law may be capable of further development, this does not make the issues involved unusually difficult or complex, citing Re Hapgood QC, HCMP 101/2013, unreported, 19 February 2013, [25(1)], in support.

11.  In Leung Kwok Fung (CFA), a challenge was mounted against the constitutionality of the statutory scheme for the regulation of public processions contained in the POO.  The focus of the challenge was on the contention that the statutory discretion conferred on the Commissioner of Police to restrict the right of peaceful assembly for the purpose of “public order (ordre public)” was too wide and uncertain to satisfy the requirements of constitutionality.  It was a much narrower challenge than the wholesale attacks now sought to be launched against the constitutionality of section 17A as an offence-creating provision, the scheme of objection and the appeal mechanism.  In Leung Kwok Hung (No 2), the Court of Appeal, in the context of addressing the constitutionality of the Prohibition on Face Covering Regulation, Cap 241K, discussed the statutory framework regulating unlawful assembly and unauthorized assembly and the proper measures to be taken by the police to restore peace and order, and to disperse or arrest the participants.  The Court of Appeal did not deal with the constitutionality of the subject offences or the appeal mechanism.

12.  In short, contrary to Mr Chang’s submissions, the constitutional issues have not been fully addressed or canvassed by the Court of Final Appeal or the Court of Appeal in the two authorities.  How they will be argued and resolved remains to be seen in the underlying proceedings and, should the matter go further, on appeal to the Court of Appeal or even to the Court of Final Appeal.

13.  In my view, although the proportionality test is well-established, the constitutional issues involved in the underlying proceedings at both the systematic and operational levels are of unusual difficulty and complexity.  At the core of the parties’ contentions, the court will be asked to resolve the extremely important, difficult and delicate question of how to address and if necessary balance the competing interests involved in protecting the fundamental freedom of assembly on the one hand and regulating the manner and exercise of that freedom under the statutory regime, including the appeal mechanism on the other.  The constitutional issues will have a real and significant impact on the exercise of the freedom of assembly in the future.  They are clearly of great and general importance to the development of local jurisprudence in this area.  It is a strong factor in favour of admission.

14.  The constitutionality issues will most likely involve discussion of relevant cases decided in other common law jurisdictions and the European Court of Human Rights.  The applicant, who is a leading expert in the field with substantial experience internationally, will undoubtedly add a significant dimension to the case.

15.  As already alluded to, given the immense importance of the constitutional issues, they will very likely end up in the Court of Final Appeal.  It is another powerful factor in favour of admission.

16.  The applicant will lead a team of local counsel in prosecuting the case.  With the benefits of cross-fertilization, admitting the applicant will also help develop and strengthen the local Bar.

17.  Mr Chang next complained that the Department of Justice had made no effort to engage local leading counsel at all.  He argued that the Department’s decision not to deploy its internal leading counsel to conduct the trial by reason of best distribution of resources does not absolve it of the duty to approach local leading counsel in private practice.

18.  However, as explained in the Certificate of Junior Counsel, an internal senior counsel has already been and will be involved in the preparation of the case.  For the best distribution of resources, it is more appropriate to instruct the applicant as he could effectively conduct the trial and at the same time add a significant dimension to the development of the local jurisprudence.

19.  Further, as pointed out by Cheung CJHC (as the Chief Justice then was) in Re Mably QC [2013] 3 HKLRD 738, at [24], [25] and [39], the professional view of the DPP, who has the sole prosecutorial authority under article 63 of the Basic Law, must be given due weight.  The public interest is served by ensuring that the prosecution is conducted by the best team available, given the exceptional nature of the case, provided that it does not jeopardize the development and maintenance of a strong and independent local Bar.  I respectfully agree with his Lordship.  I accept the explanation advanced on behalf of the applicant and reject Mr Chang’s submission.

20.  Finally, Mr Chang submitted that the consideration of equality of arms and fairness does not arise in this case as no overseas counsel has been admitted to represent the defendants in the trial.  I do not think any importance can be attached to this point.  As said, the public interest is served by having the best team available to prosecute.  And the prosecution team will have to face 5 local senior counsel and 7 local junior counsel at trial.

Conclusion

21.  For the above reasons, I conclude that it is in the public interest to admit the applicant.  And I allow the application for his ad hoc admission.