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A tough job, judging by the political climate

Hong Kong, 13 January 2021: The world was a simpler place in September 2010. In Barrack Obama, the US had a first-term President who appeared intent on unifying the country; David Cameron was the newly elected Prime Minister of a UK firmly established as a seasoned member of the EU, he didn’t appear the sort of leader to try anything rash; Chelsea were the reigning Premier League champions and FA Cup holders. And, in Hong Kong, the Honourable Geoffrey Ma became Chief Justice of the Court of Final Appeal.

In the Judiciary’s first annual report after his appointment, Mr Chief Justice Ma highlighted welcome progress in civil justice reform, the opening of a Mediation Information Office in the High Court building and the successful staging of a seminar on commercial litigation. Weighty matters, indeed.

Fast-forward a decade and the issues facing his successor, the Honourable Chief Justice Andrew Cheung, who took his oath of office this week, could scarcely be more contrasting. The Judiciary is under attack from all sides in a deeply divided city, a contentious national security law has been implemented and highly politicised cases arising from the 2019 protests are coming before the courts. Oh, there is also the small matter of a global pandemic.

First, we should say a proper thank you to the retiring Chief Justice, an outstanding leader during a time of seismic change in Hong Kong and a staunch defender of the rule of law, human rights and fundamental freedoms. In a farewell briefing with media, he pointedly remarked that calls for judicial reform should not be based on dissatisfaction with court rulings. He is absolutely correct. It was also heartening to hear Mr Chief Justice Cheung – someone I have known for almost four decades, having taught him as a PCLL student at HKU in 1983 – stress judicial independence and warn against attacks on judges in his inaugural speech.

But he had barely settled at his desk before he was being asked to comment on a notable incident on Monday when a District Court judge presiding over a case of alleged illegal assembly ordered a lawyer and two attendees to remove their yellow face masks, the colour associated with anti-government protesters. Welcome to Hong Kong’s judicial landscape in 2021.

Another protests-related case – and this one infinitely more high profile – will be heard next month when nine opposition figures, including media mogul Jimmy Lai and veteran pro-democracy campaigner Martin Lee, stand trial on charges of unauthorised assembly. Flying in from London to lead the prosecution will be the formidable David Perry QC, a familiar face in our courtrooms. In approving the Department of Justice’s application to hire him, the High Court noted the case’s complexity and “real and significant impact on the exercise of the freedom of assembly in the future”.

I wholeheartedly endorse this move. Overseas counsel, much like the foreign Non-Permanent Judges in our Court of Final Appeal, bring vast expertise and knowledge to our justice system, which can only be a good thing. I know David and look forward to catching up with him. One minor query. Will he, like the QCs brought in from London by my firm, be required to undergo quarantine, or will he receive an exemption? If the former, David needs to start packing as the trial has been set for 16 February.

He will arrive in city that is handling Covid-19 far better than much of the world, although our so-called fourth wave is stubbornly hanging around longer than expected. The authorities confirmed 60 new infections yesterday, taking the total to 9,343 with 160 related fatalities. We are told to expect more than 40 new cases today.

Worryingly, a survey by Chinese University published this week showed less than 40% of Hong Kong residents willing to be vaccinated, far below the rate needed to protect the population. It should be stressed the study was conducted several months ago and you would hope attitudes have changed since; certainly, it seems obvious to me that mass vaccinations are the only way out of this mess. However, our government needs to do a much more effective job in educating the public about this critical health matter.

But back to all our yesterdays, a largely carefree time when the concept of social distancing didn’t exist, bars were open all hours and late-night revellers would happily pay for a song from legendary Elvis impersonator and street musician Melvis Kwok. This week has brought the sad news that Melvis has passed away at 68, having entertained us for the best part of four decades. Farewell to a Hong Kong icon who would surely have come up with an appropriate song for these unusual times. Suspicious Minds, perhaps, or All Shook Up. Or, in the case of quarantined QCs, Heartbreak Hotel.

Stay safe and well, everybody!

Colin Cohen
Senior Partner
Boase Cohen & Collins

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