The legal maxim “nemo judex in causa sua”, meaning “no man should be a judge in his own cause”, is attributed to Publilius Syrus, the Latin writer. This principle spans both Roman law and English common law, and it is a basic tenet of natural justice that nobody should sit in judgment on a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is no actual injustice.
This rule, moreover, is closely related to another, also designed to maintain public confidence in the integrity of formal proceedings. In his judgment in The King v Sussex Justices ex parte McCarthy ([1924] 1 KB 256), Lord Hewart, the Lord chief justice of England and Wales, said it is “of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
Although these twin principles have lain at the heart of the common law for centuries, they have been trampled underfoot by an inquiry conducted by the United Kingdom’s All Party Parliamentary Group on Hong Kong into the Hong Kong Police Force’s handling of medical workers during the recent protests. Not only had those conducting the inquiry, which reported on Aug 5, revealed their animus toward the police force well in advance, but the inquiry itself was even funded by a political organization which was also hostile toward it, and had a vested interest in the outcome.
Shortly after the inquiry was established on March 10, it was discovered that its secretariat was the Whitehouse Consultancy, a communications agency, which was being funded by Stand with Hong Kong, the anti-police grouping with close ties to the protest movement. As of Nov 5, Stand with Hong Kong had pumped 36,000 pounds ($47,000) into Whitehouse, and this was probably just for starters. Of course, he who pays the piper calls the tune, and Stand with Hong Kong will likely have ghost-written much of the report. It will, at the very least, have orchestrated much of the so-called evidence presented to the APPG.
This entire inquiry was stage-managed from the outset, and the police force never stood a chance. The APPG’s report is a travesty of justice, which will have left Publilius Syrus and Lord Hewart spinning in their graves. It disregards natural justice, and its conclusions are worthless. Perhaps worst of all, this report makes a mockery of traditional British notions of fair play, not to mention the standards of Parliament
Quite why the APPG allowed Stand with Hong Kong to get involved in its inquiry in this way is, at first blush, a bit surprising, particularly as it must have known, if the news leaked, that it would compromise its impartiality. It may, of course, have felt that, as its inquiry had, despite its grand title, no official status under Parliament’s rules, it had no option but to take a calculated risk, particularly once Stand with Hong Kong opened its purse strings. Be that as it may, the exact nature of Stand with Hong Kong must be clearly understood, as it sheds light directly on the conclusions in the APPG’s report, which, of course, were critical of the police force, as Stand with Hong Kong wanted.
While Stand with Hong Kong has only recently been established, it has a significant foreign membership, although it still plays up its Hong Kong connections, such as they are. It operates closely with other anti-China bodies, notably the rabidly hostile Hong Kong Watch, run by the serial fantasist Benedict Rogers. It has claimed, on its website, that the Hong Kong government “continuously escalates police violence and draconian measures”, and it supports the “five demands” of the protest movement, including the call to give criminal suspects and convicted offenders an “amnesty”, no matter how grave their crimes. It even publicizes what it calls “harrowing statements of torture and sexual assault” made by detainees, without providing any evidential foundation.
Once the APPG chose to get into bed with Stand with Hong Kong, the shape of its final report was predetermined. Immediately upon publication, Stand with Hong Kong announced that it “welcomes the findings of the APPG’s inquiry”, which should surprise nobody, as they were exactly what it had paid for. If the police force had been exonerated, as it should have been, Stand with Hong Kong would undoubtedly have asked for its money back.
The modus operandi of the inquiry was also intriguing. Much of the “evidence” was either given on paper or anonymously, or both, and most of it was accepted at face value. As the APPG itself acknowledged, it was unable “to judge credibility or reliability”, but it nonetheless took on board pretty well everything critical of the police force. Praise was gratuitously heaped on particular individuals, particularly if they made sensational claims about loss of liberty. One individual, who claimed to be a “first-aider”, even announced, to everyone’s delight, that he was also a “freedom fighter”, and they went into raptures when another claimed to be afraid his door would be “kicked down”, and that he would “disappear”.
In the absence of any barrister to represent the police force or assist the inquiry, no serious attempt was made to consider the motivations of these “witnesses”, or to dig down into what were often fantastical accounts. Equally, nobody sought to establish if they were being encouraged by Stand with Hong Kong to say the things they did. Throughout, the APPG leant over backwards to buy into the anti-police narrative, no matter how absurd the “evidence”. No attempt, moreover, was made to understand the problems faced by the police officers, and the whole inquiry was lopsided from start to finish.
Apart from the mass of paper “evidence”, 10 witnesses chose to give live testimony by video link, between May 27 and June 5, and the experiences of one, a retired senior police officer, are revelatory. Key parts of his testimony, he later disclosed, were simply disregarded, which was surprising as he sought to place police actions in context, and he was asked a series of largely irrelevant questions. After, as they thought, the sound system had been turned off, the officer’s interlocutors were heard describing his evidence as “largely irrelevant”. What was fascinating was the composition of the APPG’s panel on this occasion. Throughout the officer’s testimony, the shots were being called by co-chairs, Baroness (Natalie) Bennett and Alistair Carmichael, a Liberal Democrat member of Parliament, and a vice-chair, Lord (David) Alton, which leads straight back to the essence of the matter, the APPG’s inherent bias.
On March 19, before the inquiry had even started its formal hearings, Bennett, in a letter to the South China Morning Post, denounced “the excessive force used by the Hong Kong police”, and praised the protesters for “risking life and liberty, defending Hong Kong”. Earlier, on Jan 27, Carmichael had moved a motion in the House of Commons, condemning “police brutality”. Alton even wrote to the Queen, on Nov 29, accusing the police force of “indiscriminate use of violence” and “blatant misconduct”, implying it was complicit in “numerous unexplained deaths”. It was also discovered in a parliamentary register, that Alton, prior to writing his letter, had visited Hong Kong as an “election monitor”, from Nov 23 to 25, and that Stand with Hong Kong had paid for all his “travel and accommodation”.
It should, therefore, surprise nobody that Alton and Carmichael have recently been appointed patrons of Hong Kong Watch, which, like them, spends much of its time maligning the Hong Kong Police Force, as well as whitewashing the excesses of the protest movement.
It beggars belief, however, that, despite having already prejudged the issues, this trio, of Bennett, Carmichael and Alton, should have thought it appropriate to conduct what purported to be an independent inquiry into the police force, and the word “sinister” immediately springs to mind. If judicial review proceedings are ever brought in the High Court, their report will inevitably be thrown out, on the twin grounds of manifest bias and procedural unfairness.
This entire inquiry was stage-managed from the outset, and the police force never stood a chance. The APPG’s report is a travesty of justice, which will have left Publilius Syrus and Lord Hewart spinning in their graves. It disregards natural justice, and its conclusions are worthless. Perhaps worst of all, this report makes a mockery of traditional British notions of fair play, not to mention the standards of Parliament.
The speaker of the House of Commons, Sir Lindsay Hoyle, and the Lord speaker, Lord Fowler, must, therefore, once alerted to what has happened, act decisively, not only to distance Parliament from this report, but also to ensure that parliamentary processes are never again abused in the way that has occurred on this occasion.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
