UPON THIS ROCK: HONG KONG RULE OF LAW REMAINS

C O N F I D E N T I A L SECTION 01 OF 03 HONG KONG 000334

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DEPT FOR EAP/CM; ALSO FOR DRL

E.O. 12958: DECL: 02/23/2020
TAGS: PHUM PGOV CH HK
SUBJECT: UPON THIS ROCK: HONG KONG RULE OF LAW REMAINS
STRONG (PART II)

REF: (A) HONG KONG 333 (B) 09 HONG KONG 1742

Classified By: Acting Consul General Christopher Marut for reasons 1.4(
b) and (d)


1. (C) Summary: Thirteen years after Hong Kong's return to
Chinese sovereignty, Hong Kong remains deeply enmeshed in the
common law tradition. Law is taught, and cases are still
largely heard, in English. Precedents from other common law
jurisdictions, including the United States, are admissible in
Hong Kong courts, while Hong Kong precedents are becoming the
prevailing standard in some niche fields of law. Reflecting
the reverence in which law is held by the community, opinions
by the profession on public policy issues are taken as more
authoritative than those of political parties. The
profession has engaged the Mainland to an extent, with
training and exchanges generating results among mid-level
Mainland counterparts. The profession has also raised PRC
human rights cases of concern, but quietly. End summary.


2. (C) This is the second of two cables analyzing the
current state of Hong Kong's judicial and legal independence.
Part I evaluated the system's resistance to political
pressure and external influence. This report discusses Hong
Kong's ability to produce new legal professionals, its links
to the international common law community, the status of the
profession in Hong Kong society, and the influence of Hong
Kong's legal culture on the Mainland. In preparing these
reports, we spoke with: Court of Final Appeal (CFA) Permanent
Justice Kemal Bokhary, Hong Kong University Law School Dean
Johannes Chan Man-mun, Law Society (represents solicitors)
President Wong Kwai-huen, and Bar Association (represents
barristers) Chairman Russell Coleman SC. We also spoke with
Democratic Party founder Martin Lee Chu-ming SC, who ranks
second on the Bar Association's seniority list.

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Self-Nurturing System
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3. (SBU) Hong Kong has three universities offering law
degrees -- Chinese University (CUHK),City University, and
the University of Hong Kong (HKU) -- of which CUHK is the
newest and HKU is the most prestigious. Bar Association
Chairman Coleman concurred in Justice Bokhary's assessment
that these schools were producing the quality of graduates
required to maintain the current high standard of the
profession. Coleman admitted that, as the majority of new
lawyers working in Hong Kong were locally trained, there
might in the future be a concern about maintaining a
profession with international standards. At present,
however, he believes even most locally-educated lawyers seek
either educational or other "international" opportunities to
round out their training.


4. (SBU) HKU Law School Dean Chan told us that the mix of
students enrolled in his programs reflects the same balance
he has seen over the past few decades: about a third who see
law practice as profitable employment, a third enrolled to
satisfy parental fiat, and a third who actually hope to make
some kind of difference in society. Chan judged that law
students were no more or less likely to be active politically
than other students, although they did tend to perform
volunteer service through legal clinics and similar social
assistance activities.

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Common Law Community Member
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5. (U) While Article 90 of the Basic Law requires that the
Chief Justice of the CFA and the Chief Judge of the High
Court be Chinese national permanent residents of Hong Kong
with no right of abode overseas (the same requirement as for
the Chief Executive and cabinet rank officials),Article 92
allows for expatriates from other common law jurisdictions to
sit on the Hong Kong bench. In addition to a number of
judges still serving from prior to the handover, the Court of
Final Appeal has reserved its fifth seat for a visiting judge
from another common law jurisdiction, which for reasons of
travel distance and language is usually Australia.


6. (SBU) The primary language of law remains English. In
addition to the presence of expatriates in the profession and
on the bench, the Department of Justice has a large number of
expatriate staff: the Director of Public Prosecutions, the
Solicitor General and the Law Draftsman are all expatriates.
Legislation is drafted in the first instance in English, then
translated into Chinese. Legal education is also conducted
in English, with a large number of foreign law professors at

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the schools. While Chinese is increasingly used in
lower-level legal proceedings, CFA cases are all heard in
English, with translation provided as needed. Use of
English, however, has come into conflict with the desire by
some to expand trial by jury to the magistrate level
(although cost and organizational factors also play a role).
Initially, jury trials were limited to the higher courts
because of the requirement that jurors be fluent in English,
which limited the pool of available jurors.


7. (C) Other than one instance -- in which a 1999 ruling by
an expatriate (but long-time Hong Kong resident) High Court
judge that flag burning constituted protected free speech
occasioned some grumbling by pro-Beijing elements -- HKU Law
School Dean Chan could not cite an instance in which a
non-Chinese sitting on the bench had been a point of
contention in Hong Kong. When a July 2009 Hong Kong Journal
article by Tsinghua University Law School Professor Cheng Jie
ventured that the decision to allow expatriates to
participate in Hong Kong governance "may have been a great
mistake of the Basic Law," the reaction in Hong Kong centered
most on whether Beijing intended this as a criticism of
judicial independence.


8. (U) Common law precedent from other jurisdictions is
admissible in Hong Kong courts (and vice-versa). Owing to
the British heritage of Hong Kong's legal educational system
and certain differences in how court decisions are drafted,
U.S. precedents are cited less frequently, but have the same
validity. From the other side, Professor Chan told us Hong
Kong precedents have become well-established in UK and
Australian courts on issues such as "substantive legitimate
expectation" (legitimate presumption of certain rights under
the law) and the role of malice in defamation cases.


9. (U) The most recent visible link between Hong Kong and the
wider common law realm was Hong Kong's April 2009 hosting of
the Commonwealth Law Conference, a distinction made more
striking by the fact that Hong Kong is not a member of the
Commonwealth. The four-day conference, entitled "The
Dynamics of Law in a Rapidly Changing World," saw CJ Li and
his colleagues in Hong Kong's bench and bar exchange views
with six Chief Justices (including England and Wales,
Australia, Canada and Singapore) and numerous senior judges
and practitioners.

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Gospel of Law
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10. (C) Assessments of public policy initiatives by the Law
Society and the Bar Association, particularly on
constitutional reform and Article 23 national security
legislation, carry more weight than most others, given that
they are seen as representing an objective evaluation against
the impartial standard of law rather than partisan opinion.
That such analyses have come down in favor of universal
suffrage and against the government's draft Article 23 bill
may lead the establishment to grind its teeth, but leave them
little ground to rebut.


11. (C) Indeed, what helped in large measure to build the
electoral appeal of the Civic Party, which even today has
almost no network at the grass-roots, was the esteem enjoyed
by the senior barristers who founded the party. The public
seemed to believe that their expertise would be an important
contribution to LegCo, particularly in "checking" the
government. Conversely, eyebrows were perhaps raised higher
by the Civics' decision to ally themselves with the radical
League of Social Democrats in the "resignation-as-referendum"
plan.

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Links to the Mainland
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12. (C) Our interlocutors, as well as others familiar with
the programs, tout Hong Kong's hosting of Mainland government
lawyers and judges for educational and professional exchanges
as making an important contribution to the development of
rule of law in the PRC. A Department of Justice program
brings Mainland government legal professionals to Hong Kong
for a special LL.M. program, followed by an internship with a
Hong Kong government agency. Another exchange program
sponsored by the judiciary brings in Mainland judges. The
Bar Association's Coleman and HKU Law School Dean Chan were
both quite impressed with the caliber of participants in the
two programs. While the visitors might toe the official line
when speaking in class, the two felt the Mainlanders'
questions demonstrated a high level of interest in Hong

HONG KONG 00000334 003 OF 003


Kong's legal system, reflecting their desire to improve the
practice of law in the PRC.


13. (C) HKU's Chan saw Mainland LL.B. (the basic
undergraduate law degree offered by HKU) students, as well as
older students pursuing LL.M. or other advanced legal
degrees, more as a mixed bag. HKU normally admits 7-10
Mainland LL.B. students out of a pool of thousands of
applicants; English language requirements probably weed out a
great many aspirants. Of these, while many see a Hong Kong
legal education as a stepping stone to working "abroad" (in
Hong Kong, or actually overseas),a few each year appear to
Chan to be fired with enthusiasm to return and make a
difference on the Mainland. The LL.M. students have a
similar breakdown in motivations.

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In the Name of the Law
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14. (C) Individual Hong Kong lawyers are active on China
human rights issues, like Democratic Party Chairman (and
solicitor) Albert Ho Chun-yan's chairmanship of the China
Human Rights Lawyers' Concern Group. However, the Law
Society and the Bar Association have, as institutions,
maintained a certain distance in deference to "one country,
two systems." That said, Law Society President Wong told us
that, stemming from his own concern and that of his
colleagues, he had raised the cases of Li Zhuang (a Beijing
lawyer accused of telling his client to commit perjury in a
Chongqing trial) and the "Gong Meng" NGO (which has faced
charges of failing to pay taxes in Beijing, leading to its
closure) with Mainland counterparts in the All-China Lawyers'
Association. While he told us his counterparts were
sympathetic in both cases, they suggested any possible
intervention by the PRC legal profession on "Gong Meng" was
difficult owing to the fact that the issue was taxes (as
opposed to legal work) and because "Gong Meng" was not
officially a law firm, even though it provided legal advice.
Wong said that his PRC counterparts told him they had raised
Li Zhuang's case, informally but at high levels.
MARUT