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 SIPDIS 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. -------------- Self-Nurturing System -------------- ¶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. -------------- Common Law Community Member -------------- ¶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 HONG KONG 00000334 002 OF 003 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. -------------- Gospel of Law -------------- ¶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. -------------- Links to the Mainland -------------- ¶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. -------------- In the Name of the Law -------------- ¶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