August 11, 2020 – Henry Litton, “A Long Shadow Cast Over Hong Kong” – ZOOM

Henry Litton, GBM CBE QC, Hugh Chaun’s cousin in Australia

Henry Litton was called to the English Bar by Gray’s Inn in 1959 and admitted to the Hong Kong Bar in 1960. He served in total seven terms as Chairman of the Hong Kong Bar and was made a Queen’s Counsel in 1970. He served on numerous government bodies, including the Inland Revenue Board of Review and held the chairmanship of the Pollution Control Appeal Boards and chairmanship of the Town Planning Appeal Board.

He was appointed to the Court of Appeal in 1992 and to the newly established Court of Final Appeal on Jul 1, 1997 when China resumed sovereignty over Hong Kong. He retired as a Permanent Judge of the Court of Final Appeal in the year 2000 to take on the role of Non-Permanent Judge of that court for fourteen years until his retirement in 2014 when he was appointed an Honourary Professor at the Hong Kong University Faculty of Law.

When asked “What do you regard as the essential qualities of a good judge?”, he replied: “Focus, humility and love of the common man”.


Speech presentation

In December 1984, China and Britain signed the Sino-British joint declaration, which gave China the right to resume its sovereignty over Hong Kong as of July 1, 1997. On that day, Hong Kong transformed from a British Crown Colony to a special administrative region of the People’s Republic of China. In the declaration, however, China agreed to allow Hong Kong to operate more or less autonomously for the first 50 years working under the principle of One Country, Two Systems. Hong Kong’s residents’ way of life would remain largely unchanged. They would maintain a capitalist system. English would continue as an official language, and the Common Law remained the governing legal system, with judges being recruited from other common law jurisdictions. The whole agreement was and continues to be underpinned by a regional constitution called the Basic Law, which implements the joint declaration made by China and Britain, setting the vision of Hong Kong’s future. The Basic Law is the blueprint for Hong Kong, dealing with a whole range of government institutions such as trade affairs, finance, customs, excise, quarantine, education, border control, labour and social services, police force, etc… Fundamental human rights and religious, academic, and press freedoms are all guaranteed in the Basic Law, ensuring Hong Kong a high degree of autonomy.

While 2047 seemed very far away at the time, half that time has now elapsed. Young people living in Hong Kong have major concerns that life as they know it will dramatically change just as they enter their prime. As we’ve seen highlighted by the media, there have been frequent protests with youth carrying signs that say “Liberate Hong Kong” and “Revolution in our time.” Even with the onset of the Covid-19 pandemic, the protests continue, although at a diminished level. On the other hand, over 2 million people in Hong Kong signed a petition asking the central government to intervene and save Hong Kong from the protests. In response, Beijing announced that the National People’s Congress would promulgate a National Security Law for Hong Kong. Since the regional government didn’t appear to be handling the national security risk, under the Basic Law, the central government declared a state of emergency.

As the protests continue, it is important to note that nowhere in the agreement does it suggest that Hong Kong must change come 2047, or ever for that matter. Under the current arrangement, Hong Kong has excelled and prospered. It now has one of the largest foreign reserves globally and is the third most important financial centre after New York and London. China as a whole benefits from Hong Kong’s successes. Trade has become much more complex today as compared to when the agreement was signed in 1984. The system is now completely enmeshed with the financial system and heavily influenced by the Western supply chain. Hong Kong has been able to effortlessly adapt to these changes primarily because it continues to operate under the Common Law. Keeping both systems in China provides a safeguard to ensure the country’s prosperity.

The One Country, Two Systems principle can long endure in China, well past the 2047 deadline, using Hong Kong’s unique characteristics as a positive contribution to the nation. But, prosperity cannot thrive under uncertainty. The One Country, Two Systems principle is a living concept that evolves with the changing times. The aim of the new law is to strengthen the application of the principal in Hong Kong, leaving the possibility that the two systems will last long past 2047. However, in order for China to see the long-term success of this dual system, the Common Law must be seen to act effectively when coping with problems such as the protests. Henry believes that currently, the Hong Kong courts at the highest levels are overemphasizing individual rights and have added fuel to the protests to legitimize personal sovereignty. The Hong Kong judiciary will need to calibrate the system to accommodate the cultural values in Hong Kong with national aspirations, a task that will involve great sensitivity.

In 2049, China will be celebrating the centurion of the People’s Republic of China. Henry ponders what role Hong Kong will play in this role. Will it be a point of pride and one of China’s most significant assets? Or will it be but a burden? The decisions and actions taken today will play a key role in the outcome.

Q & A session

Question: I appreciate that your talk is geared to the long term, but are the recent arrests of leading voices, such as the publisher Mr. Lai, not an overreach and indicative of ending civil liberties in HK, rather than merely maintaining a status quo?

Answer: Yes, in fact, two leading activists were arrested the day before and almost immediately were let out on police bail. So, quite clearly, the prosecution will proceed under the Hong Kong judicial system. Now, how can that really be interpreted as ending civil liberties in Hong Kong? I’m sorry to say I failed to understand. This is going to be a judicial process within the Common Law system practiced in Hong Kong, and his guilt or innocence depends upon the Common Law with, of course, as we all know, a high presumption innocence, particularly where the criminal charge is a very serious one.

Question: How can Beijing handle the desire of mainland Chinese citizens to have similar freedoms to Hong Kong?

Answer: Well, as I mentioned at the beginning of my talk, what Emerson talked about, the elongated shadow of man, I am not that man, and I cannot presume to speak on behalf of the central government. So, I’m sorry. I can’t say how Beijing might handle the desire of Mainland Chinese citizens to have similar freedoms in Hong Kong. What I can say I suppose is this, in the last 15-20 years, something like 850 million Mainland Chinese have been liberated from grasping, grinding poverty, and many of the 850 million have been elevated into the middle class and enjoying the middle-class way of life as you and enjoy.

Question: Well here I know you may not be able to answer this question, but it’s interesting, the Vancouver area that we live in, a part of British Columbia, has a lot of Chinese immigrants. These Chinese immigrants come from the Communist part, I have to assume, of China. How does the government allow the Chinese residents to immigrate? Are they allowed to immigrate easily?

Answer: To me, people fashioned far more by their nurturing family circumstance, by the shade of politics of the government. And to me, someone born, raised, educated, living in what you call communist China would feel far more kinship to you and me than to say that the leaders of the regime which gives the stamp of red on the regime. And I imagined that you have very enlightened immigration policies which examine the quality of the person rather than the shade of politics of the country from which you came.

Question (follow-up): Actually, if you don’t mind, a subsequent comment… I know that we have a very lenient immigration policy in Canada. But what about the Chinese emigration policy? We have a lot of Chinese in Canada, and they’re more than welcome, it’s is no problem. They have almost a city in a suburb of Vancouver. How do they get out of China? That’s a question I have. How do they have enough money in a communist environment to emigrate and settle in another democratic environment?

Answer (follow-up): I’m sorry. I don’t really understand the question. China, with 1.4 billion people, is not a prison for 1.4 billion people. I don’t know, I can’t tell you what exactly the emigration policy of this central government in Beijing is, but one thing is sure, they have not gone in leaky boats casting off from the eastern shore of China to reach the western shore of Canada. They have immigrated legally. Presumably, a lot of them might have brought, you know skills, and perhaps resources to BC and presumably are welcome for that reason by your government. I mean surely, the development of Canada over the last 30, 40, 50 years, maybe more, because of Asian migration surely has hugely benefited Canada as a whole has it not? Is that not your perception?
Now, there are, of course, always problems I think of integration, and some migrants integrate better than others. I think the unwise immigrants would tend to cling I suppose to self-imposed ghettos as it were because that is where the comfort zone lies, but the more adventurous would very quickly assimilate and I can tell you that from my own experience living in Australia, by the second generation, say the Chinese-Australian lads and young ladies, they walk and talk like any other Aussie. Seen from behind, you will know that they were not Aussies.

Question (follow-up discussion): Yes, of course. It’s the same with Canada. Our second generations are Canadian. We have no distinction. We have doctors, lawyers, professors. I live in an area that has higher-priced homes. The majority of homes in this area are owned by Chinese non-residents. Like, they don’t live here. They buy a home, and it’s vacant. I would say this the area I live in, Midtown Vancouver, in the local area, I’d say about 60% of the homes are vacant, owned by Chinese immigrants. So, I’m wondering how these people have so much money that they can travel back and forth from a communist environment and still have these big homes. These average homes in my area are worth about maybe $5 million. So, they can afford to own these homes, not live in them, but still travel back and forth. Hong Kong is different. Hong Kong is not a communist state, you know? A lot of them are Mainland Chinese that don’t speak English yet.

Answer (follow-up discussion): Well, I suppose that there could be something wrong perhaps with your government policy that would actually allow so many units of residence being just vacant in high-rise buildings for you know, 90% percent of the time. That seems to be a huge waste of resources. But, I mean, that really has nothing to do with immigration. I suppose it has everything to do with economic circumstances, probably because your real estate market is so attractive that people would like to put their investments in high-rise buildings. I can’t answer that I’m afraid.

Question: I take it you have confidence that the PRC will respect decisions of the HK judiciary on national security issues? Can you elaborate on why you have that confidence?

Answer: Now, here’s a rather provocative question. Well, I think for two reasons: one, track record. We’ve had now considerable experience of Hong Kong being a special administrative region of the PRC, and I have myself served for 14 years as a senior judge within that system. In the course of that time, I would have made decisions adverse to state-owned enterprises of the PRC. Not once has there been the least glimpse that our decisions would not be respected, enforced, and carried out to the letter. That’s the first reason. Secondly, my confidence lies also in the basic law itself, which, as I’ve mentioned, have these entrenched provisions, which does on paper provide a very solid guarantee of the fundamental freedoms and values that we all enjoy in the western system. And that’s my answer to that question.

Question: We in Canada are concerned about the unjust imprisonment of two of our citizens in China. This makes many of us suspicious of the motives of the Chinese Communist Party. I believe that this fuels our suspicion of the motives of the party re: Hong Kong. Can you comment on this situation?

Answer: The answer is no, I can’t comment on that.

Question: You referenced the possible interference by “outside” forces in the riots. Where is this interference coming from? Is the US playing a role possibly through surrogates?

Answer: Well, I mean, this is a very delicate question, and as a lawyer, I can only draw inferences from primary facts. I mean, there is no way that these youths, the frontline thugs can be sustained in the effort for now, well over a year, be equipped with really weapons-grade stuff that they use and not be fueled and funded from somewhere. Now, where is that coming from? Is it from local sources, or is it from external sources? All that I can say is that it would seem that external forces are at work, and I’m sure you would have seen newspaper articles talking about, for example, funding from Taiwan and so on. Now, this is speculation as far as I’m concerned. That’s the best I can do with that question.

Question: The extreme ambiguity of Hong Kong’s new state security laws serve only the Communist regime’s purposes it seems to me. How can an individual or group possibly defend themselves against the draconian implications of such a law? The odds are definitely against them, in my opinion.

Answer: This is actually an incomplete question. Now, I think it’s a question of the style of legislation rather than the intention behind the vagueness. The 66 articles, I’ve read them many times, are intelligible, there’s no doubt about it, and reasonably clear. It’s just that the phraseology is unfamiliar to us in the Common Law world, where our statutes Canadian, British, Hong Kong, etc… are far more precise. When you have a proposition, and then you have sub-propositions, we always have a section and subsection, and so on. Whereas the drafting style that we see in the PRC legislation is more homogeneous. And what it means is that it gives more scope as I mentioned in my talk to the Hong Kong Court’s interpretation and gives more scope and, if you like, power, to Common Law judges to shape the ultimate response of that particular law. I don’t think that it’s actually intended to somehow empower the Communist Regime. I don’t really see the connection. Yes, you can criticize the wording as being more, as I have put it, fluid, not precise, but all it means is that the responsibility for interpreting the law is that much heavier on the Common Law Courts of Hong Kong.

Question: My question has already been asked. I was wondering whether the more pernicious riots that eventually developed had been financed by somebody outside of Hong Kong, and I think you hinted at that, but I can see that you don’t want to go any further and suggesting that perhaps it was Taiwan. You don’t think it could be broader than that? I understand if you’d rather not share, but you must have your opinions.

Answer: Well, my failing is that I’m a lawyer, and I act on evidence. I don’t think I can add anything more to what I’ve said.

Question: I think one of the reasons that a lot of us are so suspicious is that the current leader of China appears to have some ideas which are very contrary to what most of us, I think including you, would think of as a good way of leading a country. So, it leaves us suspicious that because he has so much power, he’s not himself held back by the kind of constraints that exist in a democracy. It seems to us, seems to me anyway, easy for him not to comply with the agreements that exist in which you’ve described so eloquently. With it with the laws as they are in place. It’s not obvious to me suddenly that he doesn’t have the power to override those kinds of situations and that that he may already have been doing so.

Answer: We are actually only dealing with the Hong Kong legal system, right? Now, my proposition, the theme of my talk if you like, is this: the track record so far, and we’re almost halfway through the 50-year limitation, as it were, which in theory, may expire on the last stroke of midnight on the 30th of June 2047. Now we’re nearly halfway through that, and the track record shows that that government that you criticize has acted with meticulous loyalty to the arrangement. In my professional life, not once have I seen any attempt to subvert the Hong Kong system, to undermine the system, quite the contrary, all the efforts made have been to boost the Hong Kong system. That’s why it gives me some hope, maybe even confidence, that China’s long-term view, for this region of Hong Kong, is actually to maintain the Common Law system intact beyond 2047. Now if we want to see Hong Kong continuing to prosper and people say, “Hong Kong is finished and so on,” of course, you can’t go and visit Hong Kong at the moment because of Covid-19, and if you did you’d be in detention for quarantine, but anyone actually living in Hong Kong now, when there are no street riots and violence and so on, and so forth, live a very comfortable life. Now for that system to continue, there has to be the continuation of the One Country, Two Systems formula. Reagan would have called the regime “the Evil Empire.” The Evil Empire can snuff out any of these little regions and so on at any time. I mean, if that’s your view of China today, I have nothing to say. But I mean China’s civilization has been going on continuously for 5,000 years and is now a nuclear power. Would you think that China would want to blow up the world because of the exercise of its predominant power? It’s got not only the A-bomb, it’s got the H-bomb. And if the leadership of Beijing wants to blow up the world, they can do it. And so can Donald Trump. He goes around with the football and the biscuit in his pocket at any time. He can blow up the world. Why don’t you direct your suspicions with equal measure to the White House as you do to Beijing? Yes, I think it’s time that it’s seen that the nations should have such power.

Question (follow-up discussion): Thank you for your response because I know it’s a very thoughtful one, and I agree with you that that so far the agreement, forgetting the last six months or so, has been more successful than I would ever have guessed, but I guess I do worry that the pressures that the administration of China is under from all the rest of the of the country is going to make it difficult for him to maintain that, but I really appreciate you coming and giving us that message. Thank you.

Question: “Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a maximum sentence of life in prison.” Does that mean that Hong Kong residents who advocate further democratic rights (freedom of speech, freedom of association, etc) are guilty of subversion, in your opinion?

Answer: The answer is no and emphatically no. I obviously have failed to convey that message in my talk itself. These crimes, if they are on a charge sheet, will be a prosecution in a Hong Kong Court, under the principles of the Common Law with a high presumption of innocence and all the other safeguards of personal freedom. And where the crime is as serious as one that attracts life imprisonment, the burden of proof is that much higher as it were on the prosecution to discharge. The idea that someone who says something which Beijing doesn’t like, etc… can be prosecuted under that law is just absurd.

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