Should I stay or should I go? The strange case of David Perry QC and a prosecution in Hong Kong

David Perry QC recently accepted instructions from the Hong Kong Ministry of Justice  to represent the prosecution in the trial of Jimmy Lai a publisher known for his criticism of the Chinese state, and Martin Lee, who has been dubbed Hong Kong’s “father of democracy”.

Other defendants include Lee Cheuk-Yan, vice-chairman of the pro-democracy Labour Party, and Albert Ho, a veteran liberal. All of the accused face charges of gathering illegally last August during mass street protects against crackdowns imposed by the Communist government. Jeremy Poon, chief judge of the Hong Kong High Court, approved Mr Perry’s most recent appointment and said that the case was so significant that it justified a special arrangement to allow a foreign barrister to take the case.

Perry QC's decision unleashed a tidal wave of criticism and condemnation. There can be no greater ignominy for any person than to be labelled a mercenary, particularly when the label is attached by none other than that notable of Thames Ditton, Dominic Raab, a man himself learned in the law. True, he did qualify the epithet with the word ‘pretty’.  Still not a pleasant remark for the ears on the day of rest. The Foreign Secretary said he could not comprehend how any British lawyer could in “good conscience” prosecute a case applying the national security law imposed on Hong Kong by Beijing last June.

Mr Raab’s smear was the tip of a derisory iceberg of condemnation directed at Perry QC in recent weeks. Baroness Kennedy of the Shaws Q.C. opined  “I cannot fathom why any reputable British barrister would provide a veneer of respectability to actions which are contrary to democracy and the rule of law. This decision will become a source of shame.”

Lord Falconer of Thoroton, the shadow attorney-general and former lord chancellor, said: “He must withdraw as he cannot continue in that role and remain consistent with the values of the UK. He is prosecuting some of the most well-known democracy campaigners.”

The vitriol was cross-Party. Tom Tugendhat, Chairman of the Foreign Affairs Committee, said: “We all need to ask when the law stops being an instrument of justice and becomes the tool of tyrants. Hong Kong’s new security law suggests we’re beyond the point when we can ignore the question and the implications for everyone working in the legal process.”

The Foreign Secretary said.

“There’s no doubt in my mind that under the Bar code of ethics a case like this could be resisted and, frankly, I think people would regard it as pretty mercenary to be taking up that kind of case.”

There is a certain irony in Mr Raab’s remarks, coming as they do from a member of a Government which for the best part of a year has placed citizens in England under measures and restrictions which are patently contrary to fundamental rights and freedoms albeit in the name of ‘controlling’ a Coronavirus or ‘wrestling it to the floor’ as the Prime Minister assured the nation he would. Also, an irony in that some now hold up China as the paradigm for how to see off a pandemic with their super-rigorous lockdowns involving the recalcitrant being dragged off the streets by anonymous Party officials in hazmat suits. Makes a ticking off from a CSO for sitting on a park bench in Beckenham seem not such an affront to human rights. And was it not Mr Raab who played his part in persuading the good people of the United Kingdom to turn away from the collective of mature democracies that is the European Union and look to new trading partners such as, er, China.

Putting aside these minor discrepancies. the case of Perry QC raises some important issues for those who ply their trade at the Bar. Reading public comments on the case over the past week or so I realise that we lawyers are not held in esteem by the public. We are seen as akin to cosmetic surgeons and used car salesmen, though there is no doubt that these professions provide much sought-after services to the public. However, the general perception of lawyers is that there is nothing we will not do if the pay is right. The insidious insinuation in the case of Perry QC is that he was off to the Orient to grease his palm and to hell with human rights.

In a sense all lawyers are mercenaries of one form or another. We argue the case of A for financial reward but would argue the case of the other side with equal vigour if the price is right. An argument formulated to advance the case of A can be easily reformulated in the hands of a creative lawyer to advance the case of B.

The comments of the Foreign Secretary on the case of Perry QC suggest that before accepting an instruction in a given case a barrister should visit his conscience and only if he can in ‘good conscience’ accept the case should he do so.  However, the concepts of conscience and good conscience are uncertain in this context. The most brutal terrorist, the worst child sex offender, the most corrupt of businesses all deserve the best representation before a court. Indeed, it is part of the professional duty of a barrister to do so. It seems to me that whoever might be instructed to represent the Government of Hong Kong in the relevant prosecution and whatever may their home jurisdiction, their obligation is to do so in the best interest of the client subject to the requirements of fairness which are required of any prosecutor.

Was Perry QC obliged to accept the instruction to prosecute in this particular matter?  Some misinformation in the public domain suggested that as a member of the Hong Kong Bar he was obligated to accept the instruction. In fact, he is not a member of the Hong Kong Bar and appears in Hong Kong on each occasion he does by virtue of an ad hoc grants of rights of audience by the Court in Hong Kong. His applications are always granted for one reason or another so he may have surmised that membership of the Hong Kong Bar is unnecessary.

Should he have accepted the instruction? The Foreign Secretary suggested the case could be resisted under the Bar code of ethics though he did not elucidate on what basis. His comments raise issues as to the elision of ethics, morality and conscience. The Bar is governed by a Code of ethics, not a code of morality let alone good conscience. To what extent is it realistic to expect a lawyer to have an internal moral debate every time an instruction is received or to decide whether to make himself available in a given case only after an investigation into the moral history of the client is undetermined. Should a lawyer refuse to act for any body or person having connections with the Israeli regime because of its dealings with Palestine?  Should a lawyer refuse any case which might involve Chinese institutions?

Perry QC it is reported has now withdrawn. It seems the decision is not due to any question of ‘good conscience’, rather because of the pressure that has been brought to bear, involving condemnation and vitriol. This no doubt caused him concern as to the potential effect on his practice, though he could, no doubt, find a sunny beach somewhere and say farewell to it all.

The ironies of this matter are compounded by the reports that in recent weeks Lord Neuberger and Lord Hoffman have been presiding over cases in Hong Kong’s highest court. There has been no apparent public outrage at their involvement in the Hong Kong legal system. Quite why Hong Kong considers it lacks a sufficient degree of legal talent that is needs to import elderly British judges and QC’s in not apparent.

The case of Perry QC raises important yet difficult questions as to whether questions of morality should inform who to act for and who not to act for. It is in the DNA of any lawyer to fight the unpopular cause, to stand against the worst excesses of Government and to speak the unspeakable. The integrity of Lord Sumption in stating the obvious, yet to many unpalatable, truth that all lives are not of equal value from a policy perspective is an example.

Wither morality in all of this?

Graeme Wood
Europa Lawyers
gw@europalaw.com