I know how you feel. You don’t believe me, but I do know. I’m going to tell you something that I learned when I was your age. I’d prepared a case and old man White said to me, “How did you do?” And, uh, I said, “Did my best.” And he said, “You’re not paid to do your best. You’re paid to win.” And that’s what pays for this office … pays for the pro bono work that we do for the poor … pays for the type of law that you want to practice … pays for my whiskey … pays for your clothes … pays for the leisure we have to sit back and discuss philosophy as we’re doing tonight. We’re paid to win the case. You finished your marriage. You wanted to come back and practice the law. You wanted to come back to the world. Welcome back.
Ed Concannon, The Verdict (1982)
Show me an advocate who has nothing to prove and I’ll show you an advocate who proves nothing. Kid yourself not, it is all about winning, especially in common law proceedings. No one hires a lawyer to just do his or her best; they want the lawyer to win the case. This also goes for prosecutors. No supervisor or hiring authority wants to hear from their prosecutor that the case was lost but justice was done. The presumption for going forward with the prosecution is that the cause is righteous, and the accused is guilty.
Hong Kong authorities hired David Perry QC to lead the prosecution of the pro-democracy activists with the expectation that a secured win will give credence to a decision that is expected to significantly curtail Hongkongers’ free speech, and assuredly, other human rights as well. Acting with instructions from or the acquiescence of the mainland Chinese authorities, Hong Kong had good reason to select Perry. Aside from being a distinguished and formidable QC, he is a British QC. Who better than one of Her Majesty’s own QC to prosecute her Majesty’s former colonial subjects in Hong Kong on charges calculated to abridge Hongkongers’ constitutional rights? Perceptions matter. The symbolism could not have escaped Perry.
The case arises from a demonstration on 18 August 2019, when protesters turned an approved assembly inside Victoria Park in Causeway Bay into a march to Central. The nine accused stand charged with two offences under the Public Order Ordinance: organising an unauthorised assembly; and knowingly taking part in an unauthorised assembly. The conduct predates the much criticized national security law.
Securing a victory in the case is all but forgone for the Hong Kong authorities. The legal / constitutional issues are hardly difficult or complex, warranting a high-profile British silk to lead a team of local counsel in prosecuting the case. That Perry’s involvement will insure a “benefit of cross-fertilization” and help in “develop[ing] and strengthen[ing] the local bar,” as claimed by the Chief Judge of the High Court, Jeremy Poon, has traces of the unctuous colonial whiff of white man’s burden.
To paraphrase Rick Blain’s memorable line in Casablanca, of all the barristers in the world, do the Hong Kong authorities really need UK barrister David Perry QC to win the case? Hardly. Let’s not be naïve. Perry was selected by the Hong Kong/Chinese authorities because his mere presence as a distinguished British QC will yield perceptible cachet to the outcome – legitimacy. International acceptance is obviously coveted. Judge Poon says as much:
14. The constitutionality issues will most likely involve discussion of relevant cases decided in other common law jurisprudence and the European Court of Human Rights. The applicant, who is a leading expert in the filed with substantial experience internationally, will undoubtedly add a significant dimension to the case.
Gaming whether to accept the brief, it would have dawned on Perry that he was being engaged (used) to give legitimacy to a seemingly otherwise illegitimate prosecution. He is far too savvy and learned to be unaware that authoritarian regimes (Hong Kong authorities are marching to China’s authoritarian tune) pretextually (ab)use legality to justify, promote, and camouflage illegality.
Using the law and courts perversely to abridge constitutionally guaranteed human rights is nothing new. We expect judges to refrain from lending credibility and legitimacy to such proceedings. Should we not expect the same of prosecutors? Of course.
Understandably, Hong Kong prosecutors and judges – should they wish to keep their positions and advance in their careers – may have little choice but to go along or else resign and seek alternative employment. Of course, easy for those of us in our safe environments to sanctimoniously pontificate on courage.
But with Perry, we are not talking about a local prosecutor having to stick out his neck, to play the hero. No. We are talking of a foreign free agent – much like a coveted professional footballer unburdened by contractual restrictions, free to sign with the team of his choosing. Unconstrained, Perry was in full possession of his free will to accept or decline the brief – absent risk of consequences other than of his choosing.
Perry would have known that he was stirring up a hornet’s nest by agreeing to prosecute Hong Kong pro-democracy activists. The claim that as a part-time member of the Hong Kong Bar association he is acting under the “cab rank” principle (his turn to take the next case) has no traction. To his credit, he has not insincerely offered this ineffectual justification.
The Hong Kong authorities are well within their rights to seek out competent counsel and to put together the best legal team in advancing their case, which, in no short measure, is to clamp down pro-democracy activities and to the extent possible, put a lid on future public demonstrations of constitutional/human rights violations. Forgone as it may be, if Perry’s pedigree were of questionable estimation, the outcome would not carry the much-desired gravity and imprimatur of legitimacy sought by the Hong Kong/Chinese authorities. That is why, in my opinion, the Hong Kong Bar Association, unsuccessfully, sought to keep Perry from leading the prosecution. Were Perry a UK QC of no repute, no talent, and no distinction (I have come across a few), it is doubtful the Hong Kong Bar Association would have protested – or anyone else for that matter.
There is no legal justification to prevent Perry from representing Hong Kong in prosecuting this case. He has been involved in the prosecution of a number of high-profile cases in Hong Kong, including prosecuting former Hong Kong Chief Executive Donald Tsang over allegations of misconduct in public office. Ethically, Perry is doing nothing wrong. He is accepting a legitimate brief. He is not on some ideological bent. Nor is he claiming the high road reserved for those defending an accused, however heinous the crimes may be (the everyone-deserves-and-is-entitled-to-a-robust-defense refrain). The prosecution plays a different role. Herein may lie the rub for some.
While defense lawyers are expected to pursue their client’s case to the fullest, including using their cross-examination skills to discredit witnesses they believe to be truthful, prosecutors, as an extension of the state, are expected to be detached and eschew pursuing victory for victory’s sake – especially where injustice may result. Indeed, prosecutors should decline to follow instructions to prosecute where they harbor a reasonable doubt – or to be the bulwark of the state by making spurious legal arguments and offering imaginative constitutional interpretations to obtain a result that is incompatible with constitutionally guaranteed protections.
There was no compelling reason for Perry to accept this brief. To the contrary, there were compelling reasons, moral reasons, not to accept to prosecute the Hong Kong pro-democracy activists. A bit like going out of your way to be hired in the 1960s to prosecute the activists of the Student Nonviolent Coordinating Committee (SNCC) for their organized sit-ins at counters throughout the South as part of Martin Luther King’s non-violent measures for racial equality.
Human rights advocates are disappointed. One UK barrister has accused Perry of bringing the UK Bar into disrepute. Others see nothing ethically wrong with him agreeing to accept the brief, even if morally unsound or imprudent. I am in the last camp, though guided by my own moral compass, I would have declined the brief.
Curious minds query why Perry agreed to prosecute the Hong Kong pro-democracy activists, and in the process, land a few blows (below the belt) on Hong Kong’s wobbly democracy. The answer is simple: fame and fortune. Why need his motives be noble or esoteric?
Whether we like to admit it or not, barristers, like other advocates, are hired guns – despite what human rights lawyer Lady Helena Kennedy claims. Like in the old westerns, the hired gun has a notorious reputation whether he or she is wearing a black hat or a white hat. Occasionally the white hats do a bit of pro bono humanitarian work by ridding a town of the wicked land-grabbing, evil-doing, fear-inducing rancher and his black-hat hired guns.
No matter the side, reputation counts. How better to enhance one’s reputation than by accepting a brief that is sure to generate global publicity. With the prosecution not being righteous cause-oriented (other than for the Hong Kong/Chinese authorities), Perry is unlikely to have undertaken this brief were the coin not handsomely consequential.
David Perry QC no doubt will try to win, not just do his best. Depending on his performance we may be in a better position to judge his motives for accepting to prosecute Hong Kong’s pro-democracy activists fighting for their constitutional and human rights.