HONG KONG VIEWS ON PRC LEGAL REFORM (C-AL7-00894)

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 002250

SIPDIS

NOFORN
SIPDIS

DEPT FOR EAP AND EAP/CM
NSC FOR DENNIS WILDER
USDOJ FOR CHRISTOPHER LEHMANN, OFFICE OF PROSECUTORIAL
DEVELOPMENT, TRAINING AND ASSISTANCE, AND KYLE LATIMER, OIA

E.O. 12958: DECL: 08/29/2032
TAGS: PGOV PHUM PINR KJUS SOCI CH HK
SUBJECT: HONG KONG VIEWS ON PRC LEGAL REFORM (C-AL7-00894)

REF: A. HONG KONG 02244

B. SECSTATE 110828

C. GUANGZHOU 0789

D. GUANGZHOU 0806

E. HONG KONG 01589

F. BEIJING 01103

Classified By: Acting E/P Chief Craig Reilly; Reasons 1.4 (b,d)


1. (C) Summary: Contacts and cooperative arrangements between
Hong Kong law schools, academics, and executive and judiciary
branch officials and their mainland counterparts have
accelerated in recent years. The Closer Economic Partnership
Arrangement (CEPA) has provided a similar boost for Hong Kong
law firms interested in mainland business. An ongoing
mainland research project by the Chinese University of Hong
Kong is collecting detailed information on the PRC criminal
court system and procedures; one early but unsurprising
finding is that defense lawyers do not play major roles in
criminal trials. While a few Hong Kong contacts believe the
Chinese judicial system is increasingly open, most question
the extent to which mainland judges, lawyers, and officials
have benefited from Hong Kong training or experience.
Several leading Hong Kong legal figures believe "rule of law"
in the mainland will remain largely an empty slogan until
full judicial independence is realized. Chairman Albert Ho
of the Human Rights Lawyers Concern Group opined that
meaningful implementation of rule of law would be "the only
way President Hu Jintao can keep his promise of establishing
a truly harmonious society." (Note: This cable is the second
of two prepared by the visiting Embassy Beijing Resident
Legal Advisor and E/P Section's summer intern, with
assistance from E/P officers. The first cable (ref a)
discussed rule of law in Hong Kong.) End Summary.

Years of Cross-Border Legal Relations
--------------


2. (SBU) Professional exchanges between the Hong Kong and
mainland legal sectors began long before the 1997 handover.
Over the past two decades, Hong Kong academic institutions,
private law firms, and organizations such as the Law Society
of Hong Kong have created venues for interaction between Hong
Kong and mainland lawyers, judges, and legal academics, in
part to support the "one country, two systems" principle and
in part to support and influence legal reform in the PRC.
The law departments of Hong Kong University and Chinese
University of Hong Kong have sponsored research on Hong
Kong's legal system by mainland scholars. The universities
as well as the Hong Kong Law Society also have conducted
legal seminars and financed training courses on the Hong Kong
judicial system for mainland legal personnel. The Law
Society has greatly increased its communication with the All
China Lawyers Association, mainly in the form of delegation
visits, conferences, and moot court performances. The
Society has established cooperative arrangements with 28
provincial and municipal counterparts in the mainland, mostly
focused on commercial and financial law. Their programs have
included "road shows" on joint ventures, arbitration, wealth
management, taxation, and establishment of offices in China.


3. (SBU) Hong Kong law firms also have gained greater access
to the mainland through the Closer Economic Partnership
Arrangement (CEPA) between Hong Kong and the PRC. In April
2006, the Guangdong Province Department of Justice approved
the first local partnership in Guangzhou between Hong Kong
and mainland law firms. The signing of CEPA Phase IV in June
2007 furthered the development of a Hong Kong-mainland
"hybrid legal system" by removing the territorial restriction
on Hong Kong firms entering into associations with a mainland
firm. Each Hong Kong legal representative office on the
mainland now can form a partnership with one domestic law
firm in the same province or municipality. At present, there
are 71 Hong Kong law firm representative offices in the
mainland, and six mainland law firms have opened branches in
Hong Kong.

Criminal Law: Fewer Exchanges
--------------


4. (C) In criminal law, however, Law Society Criminal
Committee head Stephen Hung said opportunities for exchange
are much more limited, primarily because the differences
between the two legal systems are too great. In actual
criminal cases, Hong Kong criminal defense solicitors often
are asked to assist when Hong Kong residents are detained in

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the mainland for debt disputes, are in custody for various
reasons, or are seeking general legal advice on criminal
matters. Mainland lawyers who have visited Hong Kong and
attended its court procedures generally remark that the Hong
Kong criminal justice system is inefficient.


5. (C) A five-year research project has collected extensive
information and empirical data on the PRC criminal justice
system and procedures. Professor Michael McConville,
Director of the recently established School of Law at the
Chinese University in Hong Kong, has formed partnerships with
numerous mainland universities and legal scholars. He has
obtained relatively unrestricted access - an unusual
privilege -- to courts in 13 mainland districts.
McConville's researchers have attended 220 trials and
reviewed 1,444 case files ranging from minor infractions to
death penalty cases. McConville plans to deliver a published
report to the PRC Ministry of Justice before presenting it to
the United Nations by the spring of 2008. He said his
general sense thus far is that defense lawyers do not play
major roles in the PRC's criminal justice system. Their only
realistic opportunities to affect the ultimate outcomes are:
(1) the formal transmittal of the case from the Public
Security Bureau to the Procuracy; (2) the prosecution's
formal request for additional investigation after the formal
charge; (3) the prosecution's request for a formal opinion
from the court to dismiss or transfer the case to
administrative proceedings.

PRC-Taiwan: More in Common?
--------------


6. (C) Professor Albert Chen of Hong Kong University believes
the mainland has more interaction on rule of law issues with
Taiwan than Hong Kong, probably due to the common use of
Mandarin and the civil-law nature of the PRC and Taiwan legal
systems. The mainland is not as interested in Taiwan's
developing democracy, Chen said, because it has fostered
independence-minded politicians. For the same reason, the
mainland is suspicious of Hong Kong's political parties that
advocate greater democracy in the region.

PRC Rule of Law: Progress or Empty Slogan?
--------------


7. (C) At a July seminar sponsored by the China Human Rights
Lawyers Concern Group (a Hong Kong based NGO),views on the
development of rule of law in China were generally positive.
Barrister Cheung Yiu-Leung believes the Chinese judiciary is
"opening up." Judges in some major cities regularly attend
training courses conducted by the National Judges' College,
where Cheung has been invited to speak. He was impressed by
the "frank, open, and vibrant dialogue; with no apparent
pressure, no taboo, and no defined limit of discussion
topics."


8. (C) Cheung's experience, however, is not typical. Many
Hong Kong lawyers and scholars are less optimistic and
question the extent to which mainlanders have benefited from
legal education and interactions with Hong Kong. Various
sources told us they see "very little substance" generated
from the delegation visits, conferences, vocational training,
mock trials, etc. According to Hong Kong solicitor Kevin
Steel, most mainland lawyers who frequent Hong Kong also are
engaged in non-legal businesses and are more interested in
Hong Kong's economic development and commercial laws and
regulations.


9. (C) Several contacts opined that at present "rule of law"
in the mainland will remain largely an empty slogan until
full judicial independence is realized. According to Court
of Final Appeal Justice Bokhary, who has extensive contacts
with PRC legal scholars, Chinese courts operate more as a
government bureau than an independent branch of government.
Similarly, law professor Albert Chen of Hong Kong University
believes that "vertical structuring" of the courts, whereby
the Communist Party would no longer exercise power over
courts, judges, and lawyers, would be the only truly
effective reform. Department of Justice government counsel
Wayne Walsh told us that the difficulty for Hong Kong
residents to receive a fair trial in mainland China is one of
the main impediments to an extradition agreement between Hong
Kong and the mainland.


10. (C) Legislative Councilor Albert Ho, who is Chairman of
the Human Rights Lawyers Concern Group and also Chairman of

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the Democratic Party, said Hong Kong NGOs have been working
hard to provide various kinds of assistance to mainland human
rights lawyers and legal activists, many of whom have been
wrongfully prosecuted. He believes, however, that meaningful
change can only occur if the central government takes
"immediate steps" to implement the rule of law. Ho said this
would be "the only way President Hu Jintao can keep his
promise of establishing a truly harmonious society."
Cunningham