Grenville Cross says attempts to damage the criminal justice system will be repulsed

On Feb 8, 2022, a former Bank of America lawyer, Samuel Bickett, lost his appeal against conviction and sentence for assaulting a police officer. At trial, the police officer had testified that, as he tried to catch a fare dodger at the Causeway Bay MTR Station on Dec 7, 2019, Bickett intervened, tried to snatch his baton, and dragged him to the ground, kneeling on his chest and punching his face. Although Bickett disputed the officer’s evidence, he was disbelieved, and the magistrate, Arthur Lam Hei-wei, called his actions “a serious threat to public order”, sentencing him to 4.5 months’ imprisonment (subsequently described by Bickett as “politically motivated imprisonment”).

In dismissing Bickett’s appeal, Justice Esther Toh Lye-ping said she found “no merit at all in any of the grounds of appeal against conviction”. She noted that the police officer “was outnumbered in front of a hostile crowd”, and emphasized that police officers “who are carrying out their public responsibilities must be protected when in the execution of their duties”. Instead, however, of respecting the judge’s ruling, Bickett promptly announced on his Twitter account that her judgment was “the latest indication that the Judiciary’s reputation for applying the law rationally, fairly and equally is in danger”.

After his release from prison on March 22, Bickett was, not surprisingly, deported. In Washington, DC, he declared he had been forced to leave Hong Kong by “an unelected government that, with open contempt for Hong Kong’s system of law and justice, has sought to destroy everything and everyone that makes our city exceptional”. On April 24, moreover, he announced that he had lodged an appeal to the Hong Kong Court of Final Appeal against what he called Magistrate Lam’s “fake findings”, and that, if these were “normal times”, which they were not, his appeal “would be a very easy case to win”.

Instead, however, of concentrating upon his appeal, Bickett chose, perhaps realizing it was hopeless, to politicize his situation, imagining this would somehow avail his cause. One of his first steps was to establish contact with Benedict Rogers, the serial fantasist who operates Hong Kong Watch, the UK-based anti-China propaganda outfit. A public interview was arranged for May 19, at which Rogers bizarrely described Bickett as “a former political prisoner” who had been “tortured for two days”, which seemed to delight him. In return, he maligned the way in which the Police Force had handled the riots in 2019, which, of course, was exactly what Rogers wanted him to say.

Clearly flattered by Rogers’ attention, Bickett then turned to the anti-China lobby on his home turf. Thus, apparently with the help of the US-based Hong Kong Democracy Council, which is closely tied to Hong Kong Watch, Bickett appeared before the US Congressional-Executive Commission on China (CECC) on July 12. The CECC has, for many years, been home to some of the most rabid Sinophobes in the US, some of whom even outdo Rogers, which, of course, is no mean feat.

They include Senator Marco Rubio, who wanted, despite their convictions for violence, to give the Nobel Peace Prize to protest leaders Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang; and Representative Vicky Hartzler, who, with six other Republican congressional members, urged President Joe Biden in May to impose sanctions on Hong Kong judges and prosecutors who handle national security cases. Another member is its former chairman, Representative James P McGovern, whose anti-China credentials are second to none, having pioneered legislation to prohibit US exports of police equipment to Hong Kong, sought the US withdrawal from the Beijing Olympics, and demanded sanctions on Chinese officials over domestic policies.

In such company, Bickett clearly felt right at home. He duly dished the dirt, even maligning the judicial officers who had tried his case. Whereas Magistrate Lam had “invented” an evidential scenario inimical to him, he never had a chance with his appeal because Justice Toh is “a notorious national security judge”. Then, displaying a capacity for fantasizing of which even Rogers would be proud, he told the CECC that his case “shows how the system has been co-opted and politicized by officials, often crossing into outright criminal misconduct”.

Although these crazed ramblings undoubtedly played very well with the likes of Rubio, Hartzler and McGovern, it was his grand finale that must have titillated them most. Whereas, through one of Hong Kong Watch’s front organizations, the Inter-Parliamentary Alliance on China (IPAC), Rogers campaigns for various countries to adopt Magnitsky-style sanctions laws that can be used against Chinese officials, he had clearly briefed Bickett to also seek the use of sanctions against legal personnel in Hong Kong.

In his concluding remarks, therefore, Bickett urged “Congress and the White House to issue sanctions against midlevel prosecutors and police officials who have misused the court system to unjustly imprison perceived dissidents”. As if this was not abhorrent enough, particularly coming from a lawyer, Bickett then raised the prospect of sanctioning the city’s judges as well, claiming “there is simply no question that some judges have abandoned judicial independence, including the chief justice and the known National Security Law judges”. Although the chief justice, Andrew Cheung Kui-nung, could be one of the judges adjudicating his forthcoming appeal, Bickett concluded that “these judges merit consideration for sanctions as well”.

Although Bickett’s squalid threats to prosecutors and judges should have disgusted any investigative body worthy of the name, the CECC chose to fan the flames. Instead of distancing itself from a crude attempt to pervert the course of public justice, the CECC, to its eternal shame, picked up the ball and ran with it. In its “staff research report”, it suggested that the secretary for justice, Paul Lam Ting-kwok, and 15 of his named prosecutors might face punitive sanctions for prosecuting criminal suspects believed to have committed national-security and protest-related crimes.

The notion that independent prosecutors, who are neither lawmakers nor politicians, should be punished for simply doing their job is clearly repugnant to everybody who values the prosecutorial traditions of the common law world. Under established prosecution policy, the task of prosecutors is to evaluate the evidence and decide if there is a reasonable prospect of conviction. If so, they then seek to convince a court of law that, as they did in Bickett’s case, the suspect is guilty beyond reasonable doubt. For anybody in the US to seek to undermine prosecutorial independence like this beggars belief, and shows that nothing has been learned from previous abuses.

On Sept 2, 2020, for example, the then-US president, Donald Trump, slapped sanctions on the prosecutor of the International Criminal Court, Fatou Bensouda, and her deputy, Phakiso Mochochoko. Their “crime” was to pursue an investigation into whether US personnel had committed war crimes and crimes against humanity in Afghanistan. Although, under the UN’s Rome Statute, Bensouda was required to investigate the case, Trump tried to intimidate her into desisting. This episode vividly illustrated America’s underlying contempt, whenever it suits it, for the West’s much-vaunted “international rules-based order”, a chimera if ever there was one.

Indeed, if the CECC considers sanctions are justified for Hong Kong’s legal officials,  it must logically follow that they also think they are suitable for the US Justice Department’s prosecutors who are prosecuting those involved in the insurrection at the US Capitol on Jan 6, 2021; for the prosecutors who are hounding Julian Assange to death with the Espionage Act of 1917 for having used press freedom to expose systemic abuse at the heart of the US government; and for the members of the Justice Department’s newly created National Security Division, which is responsible for combating what US Assistant Attorney General Matthew Olsen described on Jan 11 as “the threat posed by domestic terrorism (that) is on the rise”. After all, as the CECC presumably agrees, what is sauce for the goose is also sauce for the gander.

Since the US Justice Department, like its Hong Kong counterpart, is an organizational member of the International Association of Prosecutors (IAP), it should, despite its abysmal failings over the Bensouda case, be doing whatever it can to uphold prosecutorial independence around the world, and ensuring that mindless bigots like the CECC are stopped in their tracks. After all, at the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, the “Havana Declaration” was adopted, and this stipulates unequivocally that “States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.” It is this sacred prosecutorial principle that the CECC, egged on by the likes of Bickett, has sought to trash, and everybody who values the rule of law must now call it out.

In any event, the US should never forget that Hong Kong’s prosecutors love their city and their country, and that they are valiant professionals. Like the judges, they will not be deflected by threats from doing their duty and upholding the rule of law. Although Hong Kong is a small place, its people know how to stand up to the bully boys of the West, whatever skullduggery they deploy.

Indeed, in 2019, when the US-led Five Eyes partners tried to wreck its economy and way of life with a galaxy of hostile measures, they did not succeed, and Hong Kong has now had the last laugh. They will hopefully appreciate by now that any attempts to damage the criminal justice system will also be repulsed, given its inherent resilience. In the highest traditions of the IAP and the common law world, the city’s prosecutors will not allow themselves to be pushed around by the CECC or anybody else who wants to harm their home.

（This article represents the view of the author only）

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.