POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?

I understand in the case of Mr. Perry, in relation to the pro-democracy activists, and of course from Beijing’s point of view, this would be a serious PR coup.… Frankly, I think people watching this would regard it as pretty mercenary to be taking up that kind of case.

Dominic Raab, British Foreign Secretary

Raab owes Perry an unreserved apology. His remarks are not only foolish, but also flawed: they smack of grandstanding, rather than reason.… In the best tradition of the English Bar, Perry will be scrupulously fair at trial and he will ensure that there is a just outcome.

Grenville Cross QC, Former Hong Kong Director of Public Prosecutions

As I was posting my piece on David Perry QC accepting the brief to prosecute Hong Kong pro-democracy demonstrators, Perry withdrew from the case. The Hong Kong Government explained that “growing pressure and criticism from the UK community directed at Mr. Perry QC” and “the exemption of the quarantine” were the causes for his withdrawal.

Unfair pressure, crisis of conscience, realization of folly, economic considerations, or ridding of grief? Take your pick. One thing for sure, the claim that Perry’s withdrawal was due to quarantine issues doesn’t pass the smell test.

David Perry, QC

Unquestionably, Perry came under pressure from the UK community, played out in the press and on the BBC. So what. Since when are coming under pressure and bad PR legitimate reasons for withdrawing from a case after having accepted the brief, presumably, eyes wide open?

Once Perry came to terms with any ambivalence he may have had (not that there is evidence suggesting he harbored any) in prosecuting pro-democracy activists who, rightly or wrongly, were exercising their right to free speech beyond the permitted area granted to them by the Hong Kong authorities, he should have stuck to his guns and stayed in the case. Cutting loose at the first inkling of pressure and sight of bad PR is hardly in the finest tradition of the bar.

Being perceived as a “mercenary,” as put by the UK’s Foreign Secretary, Dominic Raab, is an astute observation. Raab did not call him a mercenary. Rather, Raab was referring to the perceptions generated by the optics of a British QC leading the prosecution in this case, where issues such as free speech and democratic rights hover above and beyond the narrow legal issues at stake.

Lost in the drama and hyperbolic rhetoric is the fact that the pro-democracy activists are not being tried under the new national security legislation. The legal issues are simple; the law has been on the books for some time. Perry was not so uniquely qualified to lead the prosecution that, but for his keen legal mind and rhetorical prowess, the Hong Kong authorities would be at a loss in convincing the court how the relevant law should be interpreted and applied in securing the desired result. Perry’s involvement was useful for lending credibility and righteousness to the Hong Kong authorities’ cause in prosecuting the pro-democracy activists.

Whether the Hong Kong authorities should have restricted the area of demonstration is more of a political issue. It is not unusual for authoritarian regimes to want to limit the size of demonstrations and to restrict demonstrators to confined areas where they can be better controlled, more easily identified for blacklisting, and to minimize the impact of the demonstrations. It is also not unusual for demonstrations to spontaneously grow and take on a life of their own, where parameters are ignored and peaceful assemblies turn violent with senseless destruction of public and private property.

Perry did nothing wrong, nothing unethical in accepting the brief. What has Perry’s critics knickers in a twist is that he should have exercised better judgment before accepting the brief. Should he not have considered before accepting to represent the Hong Kong authorities in prosecuting pro-democracy activists whether his participation – in the grand scheme of things – would be contributing to the erosion of Hong Kong’s democracy and perhaps lending legitimacy to the newly adopted national security legislation?

Granted, this is more of a philosophical than a legal question. But is it not worthy of contemplation by a hired gun British QC? I think so. The pro-democracy activists were demonstrating to preserve vestiges of their inalienable fundamental human rights under Article 27 of Hong Kong’s Basic Law. They were protesting the odious oppression being ushered in by the Chinese authorities by means such as the national security legislation, which, if unchecked and unchallenged, will subdue justice, social harmony, and freedom of the Hongkongers. Alexander Hamilton’s refrain on the integrity of the actions taken by Americans at what is known as the Boston Tea Party when resisting British oppressive forces, informs:

If the sword of oppression be permitted to lop off one limb without opposition, reiterated strokes will soon dismember the whole body.1Ed. Harold C. Syrett, et al, The Papers of Alexander Hamilton, 1 The Farmer Refuted 125 (23 February 1775).

What if the pro-democracy activists pushed the envelope a bit far in their bid to get global attention for their righteous cause? Perry could have and probably should have said thanks but no thanks.

No conjectural emundation is required to deduce the Hong Kong government’s motives: either give the activists a choice of having a meaningless demonstration by restricting the size and area or force them into breaking the law to prosecute and sideline some of the lead “troublemakers” and thus cripple future demonstrations. Is this the sort of case a British QC – in light of Britain’s abysmal failure to introduce real democratic reforms and franchise rights to Hongkongers well before the handover of Hong Kong – should happily agree to lead in the expectedly successful prosecution of pro-democracy activists?

Some of us for our own moral reasons would have declined such a brief – even if not asked to transgress any ethical lines in carrying out the remit.

And lest there be any misunderstanding, let’s be clear: the facts and applicable law in this case, and the brief accepted by Perry, do not seem to have called for an immoral or amoral prosecution – in isolation. Nonetheless, it was unwise for Perry to accept the brief. There are cases where a prosecutor – not a defense lawyer – can and should question the situational morality of the case even when the prosecution is being conducted within the confines of the law. To do so requires looking beyond the facts, looking at the motives or potential motives of the hiring client, as in this case, the Chinese influenced Hong Kong authorities. One need only look at the new national security legislation – passed through the guise of a democratically functioning legislative body – to read the proverbial tea leaves in discerning motive.

Had this case concerned the interpretation and application of the national security legislation, would Perry not be lending his formidable skills and eminent reputation in doing the bidding of the repressive Chinese regime? Unquestionably – even if scrupulously fair at trial and even if he attempted to ensure that there is a just outcome by not overreaching for the sake of winning the case. How presumptuous of Grenville Cross QC, Former Hong Kong Director of Public Prosecutions in claiming that Perry can ensure a just outcome. Whether the court will be equally scrupulous as Perry in assessing the facts and applying the law, is suspect. That Perry’s presence could temper the court from overreaching in a case where big brother is watching and expecting an outcome based on its sense of justice, is romantically wishful.

But even if not prosecuting under the new national security legislation, there are instances where, in my opinion, exercising judgment in accepting to prosecute a case (that UK barristers are presumed to be detached, I dare say, is ambitious when the paramount goal is to win the case) must include taking into consideration the clients’ motives and any resulting perceptions. In some instances, such as this one, motives and perceptions are part and parcel of the reasons for the Hong Kong authorities coveting the services of a highly esteemed, highly known, highly publicized British QC.

In the present case, or in future cases where the national security legislation will be in play, should a free agent such as Perry who rents his skills, question the motives (and morality) in lending the prestige and legitimacy that flows from him being a British QC? I think yes. The motives of the authoritarian Chinese regime through the Hong Kong authorities are quite transparent by now: to incrementally stifle human rights and extinguish the hard earned and grudgingly offered democratic rights belatedly afforded to the Hongkongers by their colonial master, Britain. No sugarcoating it.

Query whether Perry should have thrown in the towel because of insufferable pressure, inelegant PR, or fear of loss of future high-paying gigs for having prosecuted pro-democracy activists.  Considering he was well within his rights and ethical constraints to accept the brief, even if morally unwelcoming, once he accepted the brief, short of confessing error for doing so, I think not.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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