Straight Talk presenter Eugene Chan (left) interviews Senior Counsel and former Director of Public Prosecutions of Hong Kong Grenville Cross on TVB, Nov 14, 2023. (PROVIDED TO CHINA DAILY)
Senior Counsel and former Director of Public Prosecutions, Grenville Cross, is on the show this week. He condemns the recent US bill proposing sanctions on 49 Hong Kong judges, prosecutors, and officials, considering it an attack on the city's rule of law. He contextualizes it within the broader global rivalry between China and the United States, as a weakened legal system in Hong Kong would not only undermine the city’s importance to China but also damage our motherland.
Despite Hong Kong ranking 23rd on the World Justice Project's rule of law index, critics often portray the legal system negatively. Cross emphasizes that Hong Kong's common law system and independent judiciary ensure fair legal arrangements, even under the new National Security Law. He criticizes foreign demonization of the law and labels the proposed sanctions as an irresponsible attempt to intimidate officials, urging continued defense of Hong Kong's rule of law and highlighting the Court of Appeal's quashing of Jimmy Lai's conviction as evidence of a fair legal system.
He urges us to continue to defend our rule of law by taking every opportunity we can to get the message across that Hong Kong still has a first class legal system and judiciary.
Check out the full transcript of TVB’s Straight Talk host Dr Eugene Chan’s interview with Grenville Cross.
Chan: Good evening! This is Straight Talk with Eugene Chan. Our guest this evening is Grenville Cross, senior counsel and professor of law. Cross was the first Director of Public Prosecutions to be appointed after Hong Kong was returned to our motherland, and was also the longest serving DPP holding this post for 12 years. He is a career prosecutor and is a Senator for Life of the International Association of Prosecutors. With that standing, he is most suitably qualified to talk to us about the rule of law in Hong Kong, and whether it is under attack. Welcome, Grenville!
Cross: Thank you very much, Eugene.
Chan: So, Grenville, shall we start by telling the viewers briefly about the rule of law of Hong Kong and why it is so important to all of us?
Cross: Well, our legal system has been absolutely fundamental to our success since 1997. It underpins the rule of law. It ensures that people who are accused in criminal trials of offences have fair trials. It ensures that people who go to court on whatever types of cases receive due process and fair hearings, and it provides a level playing field for the business and commercial worlds. It's also overseen by a highly professional judiciary, which is trusted by local people and by international businesses. And it also provides a fair system of arbitration for people who want to do business in the mainland. So, for all these types of reasons, it's absolutely essential.
Chan: Has the rule of law in Hong Kong ever been previously, I will say, weakened or I would use the word, tarnished?
Cross: Well, there have been attacks on the rule of law in Hong Kong from time to time. In very recent times, we have seen post-the enactment of the National Security Law in 2020. That attempts have been made to undermine our judiciary and our prosecutors and this has been done for a very clear reason; because the legal system is so important for Hong Kong. If the legal system can be undermined or weakened, then this will not only harm Hong Kong, it will also hurt the Chinese mainland itself. So, people who are trying to harm our legal system have an ulterior motive that they want to undermine Hong Kong's importance to Chinese mainland and thereby to damage China as well. So this is obviously very concerning.
Chan: Grenville, the World Justice Project's rule of law index, ranks Hong Kong 23rd, globally, out of 142. Ahead of ... even of the United States and even some other European countries. So, can you briefly discuss specific contributions from the judiciary, our prosecution service and the wider legal profession that leads to this high ranking?
Cross: Well, as I say Hong Kong is blessed to have a highly professional judiciary, in the Court of Final Appeal, for example. There are, in addition to distinguish local judges, eminent jurists from other jurisdictions, including from the United Kingdom, from Canada and from Australia, some of them being former chief justices and presidents of the UK Supreme Court, and they ensure that the highest quality legal system is operated in the interests of the people of Hong Kong. The legal profession is composed of highly dedicated lawyers and they provide excellent services in both the public and the private sectors. And because we do have these arrangements in place it is ensured that the ‘one country, two systems' paradigm has been successful, and that the capitalist system and the way of life of Hong Kong people has endured. So, we are extremely fortunate, and this is recognized by international observers as you say the World Justice's Project ranked Hong Kong only last month as 23rd out of 142 jurisdictions surveyed, and this was, as you say, ahead of United States, ahead of many European countries, including, for example, Italy, which was 32nd, Poland, which was 36th and Greece, which was 47th. So, we are very highly regarded by objective observers of rule of law situations. And this gives the light to the many critics who love to give the impression that our legal system is on its last legs,
Objective observers realize that Hong Kong maintains a highly effective common law legal system, that the rule of law is intact.
Grenville Cross
Chan: Right. Grenville, just a personal question. If we say we haven't got a Western rhetoric of trying to smear Hong Kong somebody claims, do you think we will be even higher than the 23rd?
Cross: Not necessarily. Because the people who compiled the rule of law index in the World Justice project are wholly objective observers, they rely on independent data, which is obtained from the 142 jurisdictions, and they don't allow themselves to be pushed around or otherwise influenced by propaganda from particular countries. So, their assessments are objective, and this is probably a fairly adjusted rating.
Chan: Do you see us moving up further in the future?
Cross: Well, I would certainly hope so. Hong Kong, as I say, is very highly regarded. In addition to its high ranking overall, it ranked six out of 15 in the Asia Pacific region, which again is very high and there's absolutely no reason at all why as things settle down and Hong Kong continues to expand its operations, in finance, in arbitration and so on, that it says situation should not improve.
Chan: Just now, you mentioned the presence of overseas judges. Certainly I'm sure it will lead to a lot of credibility and professionalism of the Hong Kong legal system. Would you agree?
Cross: Oh, absolutely. I mean, as I say, we do have highly-regarded judges from other jurisdictions. They bring great expertise to bear for our Court of Final Appeal. And I know that the local judges as well find their input to be of great value. And these people have come under pressure to resign from the Court of Final Appeal. Two of them actually did resign last year. They were serving judges who came under great pressure from the British government to resign, but the other judges are retired judges, and they have not allowed themselves to be pushed around and they have made the point time and time again that the Hong Kong system works well. And that if the criticisms which are levelled against it by various powers, particularly the United States, the United Kingdom were true that they themselves would resign from the Court of Final Appeal, but as they know they're not true. They have held their ground and refused to be pushed around in the best tradition of judges.
Chan: Grenville, if the recent court of appeals decision to quash the convictions of pro-democracy activists, highlights the judiciary's robustness. Can you explain to the viewers why they have ... why they are still facing criticism over the handling of national security and protest related cases?
Cross: Well, of course, there was a lot of support in foreign parts for the protest movement in 2019-2020. And that support continued even when it turned violent and huge damage was done to Hong Kong. Although the National Security Law has returned normality to Hong Kong and restored it to equilibrium. The people who were behind the riots and the damage, the criminal damage and so on, are now facing the consequences. But the foreign powers are still giving them some support. And they are demonizing the National Security Law, even though they themselves in many cases have national security laws of their own, which are far tougher than anything that Hong Kong has. Right. And so it's being used as a stick with which to beat Hong Kong and the fact that we do have an independent judiciary, the fact that we remain a common law system ensures that our legal arrangements are fairly applied. Even under the new National Security Law arrangements.
Chan: Right, Grenville. We've heard about this bill this week that a group of US lawmakers introduced calling on the US government to impose sanctions on 49 Hong Kong judges and legal professionals. So, what grounds do they have that for that essentially?
Cross: Well, this is absolutely extraordinary, but it's all part of the process to undermine Hong Kong. In the US there is a group known as the Congressional-Executive Commission On China, which is composed of China bashers, and they do all they can to try and undermine China and to harm Hong Kong. Last year, they called for sanctions on Hong Kong prosecutors .... 15 prosecutors. In May, they asked President Joe Biden to impose sanctions on Hong Kong judges involved in national security law cases. Earlier this year, the same group even called on President Biden to close down Hong Kong's free trade of economic trade officers in the United States. So, they're doing everything they can to try and harm Hong Kong. And as you say that the latest initiative is by a group of congress people supported by the Congressional executive committee on China, who are now trying to intimidate our judges, our prosecutors and our officials with the sanctions which is absolutely appalling, and spit in the face of the rule of law. And indeed, what is particularly disgusting is that these are the same people who claim to support the international rules-based order and here they are trying to intimidate and threaten Hong Kong judges, prosecutors and officials for only doing their job and for upholding the rule of law and bringing criminals to account which is despicable.
Chan: Before the break, I want to answer direct questions. Is this an attack on our rule of law?
Cross: It absolutely is. If judges feel threatened or if prosecutors feel threatened, or if the legal profession feels threatened, then obviously it will create a climate of fear in Hong Kong, and that cannot be good for the rule of law.
Chan: Right? Grenville, so what you were saying is that this sanction will affect our legal system and it will induce a climate of fear amongst our judges, legal professionals or prosecutors. Would you call that manipulation and intimidation?
Cross: Certainly intimidation. It's an attempt to influence judges not to be true to their oath. I mean, they take judges when they're appointed. Take an oath to apply the law without fear or favor and to administer justice impartially. This is an attempt to subvert their decisions and to push them into taking decisions which may not be justified on the facts of the case and in light of the law, and likewise with prosecutors an attempt to intimidate them not to do their job. And as Hong Kong is a major common law system, and as it is ranked 23rd in rule of law terms by the World Justice Project. People need to have no concerns because the law is being applied fairly and impartially to everybody.
Chan: Grenville, so actually you can say that they actually deter them from exercising an independent and unbiased judgment because of fear of being sanctioned. Will you say that's true?
Cross: That is, of course. It's only a proposal at this stage, it is only a bill and hopefully it will never see the light of day. But clearly the intention is to intimidate legal people in Hong Kong into not doing their duty and not fulfilling their responsibilities.
Chan: Alright, let's take a break now. Viewers stay tuned, we will be right back.
Senior Counsel and former Director of Public Prosecutions Grenville Cross attends the Straight Talk show on TVB, Nov 14, 2023. (PROVIDED TO CHINA DAILY)
Chan: Thank you for staying with us. And we have Grenville Cross on the show this evening, talking to us about the rule of law in Hong Kong, whether it is under attack. So, Grenville, in the first part you have categorically said that we are under attack, should these proposals become a reality. And it has also been suggested under Article 55 of the national security legislation that some NSL cases might have to be transferred to the mainland if the sanctions are imposed. Could this happen? I mean is this an overstatement?
Cross: Theoretically it could happen. If there is involvement of external factors or foreign forces in a particular case, then this can be a possible basis for transferring a case to the mainland for trial. But equally, under the national security law, jurisdiction over national security cases is vested in the Hong Kong SAR. And I imagine that that will be observed, unless wholly exceptional circumstances arise. Obviously I don't have a crystal ball but from my understanding of the situation, there is no sufficient basis at present to transfer cases out of Hong Kong.
Chan: Right. Grenville, just now you mentioned that there's a lot of … the bill motivation has been described as an attempt to weaken China by harming Hong Kong’s legal system. So, just explain that connection, I mean how much evidence do we have on that?
Cross: Well, I mean obviously Hong Kong is very important to China, it is a center for legal services, as it is often said, it is a bridge between China and the West. Many western countries have their businesses in Hong Kong, their commercial enterprises are here doing business with China. When disputes, for example, arise over commercial enterprises in the mainland, provision is made for arbitration here in Hong Kong. And so Hong Kong is very important to Chinese mainland in various ways. And of course, it's a center for the transfer of capital in and out of China. So, in all sorts of ways, Hong Kong plays a vital role in China’s development. And clearly, if Hong Kong could be harmed, as some people want to do, particularly its legal system, which is at the center of things, then this will undermine China. And so people must understand that when people talk about these sanctions in the United States, their true aim is to try to hurt China, and they are not seriously concerned about other matters.
Chan: Right. Do you believe the international community fully understand the complexity of Hong Kong’s situation, especially in the context of the proposed bill by the US lawmakers?
Cross: Well, I certainly hope they do. So far as I can tell, no other countries have come out in support of what the United States congressmen have proposed. There has been no support for it in Canada, in United Kingdom, in Australia, and New Zealand, the other Five Eyes partners. In September, the British foreign secretary, James Cleverly, said that the Hong Kong court remain independent. And I imagine, even though he might not like to come out and say it in the open, that he will be appalled by the threats to the judges because the common law system, as he well knows, and other countries well knows, continues to operate fairly here. And you mentioned just now the quashing of the conviction of Jimmy Lai and other people for having taken part in an unauthorized assembly in 2019. They are actually convicted for organizing the unauthorized assembly by the district court. And their appeal succeeded in August of this year, and the conviction quashed by the Court of Appeal, which is a vivid testament of the fact …
Chan: Exactly.
Cross: … that we do have an independent judiciary adjudicating fairly upon the issues of the day. And most balanced observers can see that, and it’s a pity that some people in the US Congress, for their own political reasons, cannot.
Chan: Right. Grenville, it is reassuring that other countries do have the sense of being … They have some sense of decency. But we have been having strong condemnations of the proposed sanctions by our Chief Executive, Secretary of Justice, the Hong Kong and Macao Affairs Office, as well as the Commission of Police. Do you think the US government would take any notice? And how do you think they will respond?
Cross: Of course, at the end of the day, it will be down to President Joe Biden. And I am sure that anything that is said in Hong Kong will be taken into account. If the high … of the United States government clearly understands the way in which our legal system operates, how we do have fair and independent courts, then I am sure this will be taken on board. And I am sure with United Kingdom as well, that they will be concerned that some of the judges who have been threatened, sanctioned, by this group of congressmen are actually British nationals, which is incredible. And I would hope that at some point, the British Foreign Secretary, James Cleverly, would spring to their defense.
As far as I know, he’s said nothing so far, perhaps he said something behind the scenes. But I certainly hope that he would stand up for not only Hong Kong judges, but also for the British nationals, who have been threatened. But remember at the end of the day, that it is down to President Joe Biden. Last year when the congress executive commission on China, sought sanctions on prosecutors, President Biden didn't heed the call. In May, when they sought sanctions against Hong Kong judges, he didn’t heed the call. And I would certainly hope that this time he would likewise disregard their call because it is so irresponsible and so offensive to the rule of law, not only in Hong Kong, but everywhere.
Chan: So, in your view, what is the best way to defend our rule of law?
Cross: To continue to get the message across that Hong Kong that has a first class legal system, that it has a judiciary which is second to none in the Asia Pacific region, that people who are charged with criminal offences receive fair trials here. And you only need to get the message out. And we've seen that objective observers, such as the World Justice Project, once they do analyses the situation, realize how well Hong Kong is doing, and this message must be projected as much as possible around the world.
Chan: Right, just to go back to that bill. The sponsor of the bill said that the aim is to hold Hong Kong officials accountable for human rights violations. So, where do they get this idea of any officials have done that?
Cross: Well, of course, there are highly vocal lobby groups in the United States, which includes people who have been convicted of criminal offences in Hong Kong. And they are giving access to congressmen, and they are highly vocal, maligning Hong Kong and presenting a false picture of the situation here. So, it is very important that we do continue our efforts to make sure that people understand their position, and that the propaganda does not prevail.
Chan: Alright. Just now you mentioned the trial of Jimmy Lai, of course we are now going to talk the details of a trial, we just mention what has happened in the news. The trial of Jimmy Lai does attract a lot of attention and criticism from the international community, which is a fact. And I read that a group of Catholic cardinals or bishops actually recently launched a joint petition, calling on our SAR government to immediately and unconditionally release Jimmy Lai, who is a Catholic himself. What is your comment on that?
Cross: Well, this is quite a big question, Eugene. In fact, Jimmy Lai has two legal teams, one in Hong Kong, and a so-called international legal team, which is based in London, which comprises a group of lawyers there. The legal team in Hong Kong has made clearly it has nothing to do with the legal team in London. That legal team in London has been going around the world smearing Hong Kong and smearing Hong Kong’s legal system. And it appears, from what I understand, that they have had a hand in the recruiting these 10 clerics issuing this statement on Hong Kong.
From what the clerics have said, it is absolutely clear to me that they haven't been briefed correctly about the situation by this international legal team. For example, Mr Lai was convicted in December of last year of fraud and sentenced to 5 years 9 months imprisonment. So, he is a convicted fraudster. So, how the government can simply let him go, as the 10 clerics are asking, is beyond belief. Those clerics, therefore, living in ‘cloud cuckoo land’ and they have fallen easy prey to the propagandas, such as this international legal team. And it is clear that the clerics were not properly briefed that Jimmy Lai will receive a fair trial, that he will only be convicted of the prosecution, a case has proved guilty beyond reasonable doubt. At his trial, the presumption of innocence will apply, he will be entitled to lawyers to defend him, he will be entitled to all the traditional common law protections, which exist in criminal trials, not only in Hong Kong, but throughout the common law world. If at the end of the day he is convicted, he will have a right of appeal. And he may succeed, just as he succeeded his appeal against organizing an unauthorized assembly conviction. So, all the protections that are guaranteed by the international covenant on civil and political rights will be available to Jimmy Lai and his forthcoming trial, and it is absolutely clear that the 10 clerics were wholly unaware of that.
Senior Counsel Grenville Cross (right) talks on TVB, Nov 14, 2023. (PROVIDED TO CHINA DAILY)
Chan: Right. With all the things you have mentioned in this show, why do you think still some of the international community have different perspectives on the rule of law and the implementation of the NSL in Hong Kong?
Cross: Well, there is a definite attempt to demonize the national security law. It is all part of the ongoing movement, which is particularly strong in the United States. But it also exists in the United Kingdom and elsewhere, to put Hong Kong in a bad light. And the best way of weakening Hong Kong, of course, is to denigrate its legal system.
Chan: Right.
Cross: And that, as I have indicated already, will have a knock-on effect on China itself. So, this needs to be put in its overall perspective of the global rivalry that now exists between China and the United States. And Hong Kong is caught in the crossfire. Objective observers realize that Hong Kong maintains a highly effective common law legal system, that the rule of law is intact. But the propagandists in the United States and elsewhere try to diminish it for their own political reasons, aiming to diminish China.
Chan: Right. You just mentioned with the current climate of geopolitical tensions, this many campaigns is against our city, and the government is doing all that they can do to refuse them effectively. So, how about as individuals? I am sure the viewers are going to ask you what can we do to protect our city’s reputation, in short?
Cross: Many people in Hong Kong, of course, have contacts elsewhere around the world. Hong Kong is an international city, people come and go, they have relatives living in other jurisdictions. And it is very important they take every opportunity they can to get positive message out about Hong Kong because it is vital that people elsewhere understand how well our legal system is working, and how Hong Kong is very freewill these days.
Chan: Right. Grenville, I think this all the time we have. And thank you very much for this important conversation. Hong Kong’s reputation for the rule of law appears to be under threat, and we must stand firmly on our principles as we know that justice will prevail. Allow me to share a quote from British philosopher John Locke – “The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” Have a good evening and see you next week!
