編按：香港大律師公會主席戴啟思向會員發信，呼籲會員於本月底出席集思會，目的為香港危機謀出路。戴啟思表示，願意協助政府尋求解決困局的方法，但強調絕非支持任何政見。信函又指，公會向來譴責一切非法暴力行為，包括攻擊、破壞財產、投擲汽油彈和其他暴力行為，這也毋須每星期去重複提及。對於有人指公會特別針對警察使用過度暴力，戴啟思表示，在法治下，必須防止警察嚴重違規，如果出現這種情況，必須徹查及起訴，現在警隊被質疑有系統地違法，甚至獲上級包庇，令人憂慮，「沒有什麼情況比起不用問責的政府人員向公眾施加暴力更危害法治。（There is nothing more corrosive to the Rule of Law than violence inflicted on members of the public by apparently unaccountable state agents）」以下為戴啟思信函全文。
LETTER TO MEMBERS
You know that Hong Kong faces a crisis. It is a crisis that requires a political solution, yet none seems to be forthcoming. Individual members may, of course, always try to assist the HKSARG to engage on sensible proposals, including political reform, that may lead to a way out of the troubles that afflict Hong Kong.
The HKBA is prepared to assist the HKSARG in trying to find a solution, but it will not espouse a particular solution for politics' sake, Political partisanship is professional anathema and runs contrary to the Association's Rules and Regulations (R&R).
On behalf of the Bar Council, I will be inviting you to attend a meeting of HKBA members on a date to be fixed by the end of October to discuss the crisis that Hong Kong faces.
This meeting is intended to be a brainstorming meeting to seek members' views on possible solutions to the crisis and how best the Bar can assist the HKSARG to find a path to its resolution and to reconciliation in the best interests of the Hong Kong community, within the HKBA's constitutional limitations in the R&R.
In looking at what might be done, it is worth reflecting on what the Bar Council has been doing these last few months.
It has published no fewer than eight formal statements since June 2019. Summaries are as follows:
-13 June 2019: In light of the violent clashes between police and protesters outside the Legislative Council (“Legco") Complex on 12 June 2019, HKBA condemned acts of violence perpetrated by any party. It noted with grave concern that video footage showed excessive and/or improper use of force against non-violent protesters and journalists. It urged members of the public to exercise patience in expressing their views. It urged the Government to engage in dialogue with the community and to re-consider its stance on the extradition bill.
-21 June 2019: After the Government's decision to suspend the extradition bill, HKBA urged the Government to withdraw the bill altogether, and fully consult the public in any future plan to revive the issue of surrender of fugitives and cross-order legal assistance with the Mainland. It also urged the Government to set up an independent inquiry to investigate into various events which had seen injuries to both protesters and law enforcement officers including guidelines (if any) on the use of force by the police against protesters.
-5 July 2019: After the forced entry of protesters into the Legco Complex in the small hours of 1 July 2019, when some individuals committed a variety of criminal offences, HKBA reiterated the importance of maintaining law and order which is an important aspect of the Rule of Law. It stated that the Rule of Law also includes other important components such as an accountable government, effective checks and balances and an independent judiciary, and urged the Government to respond in a sincere way to the demands voiced emphatically by the public. It also renewed calls for an independent inquiry to be set up, pointing out that the legal powers of a commission of inquiry appeared more effective than the powers belonging to the Independent Police Complaints Council (IPCC) which is currently undertaking an investigation into the relevant events.
-24 July 2019: HKBA condemned the violent attack on ordinary unarmed citizens and journalists in the West Rail Station in Yuen Long. The circumstances of the attack raised questions about the
provide prompt and effective protection to citizens, the actions of the police in the immediate aftermath of the attacks, and the role of the police and some of the senior officers in handling the attacks. HKBA repeated its call for an independent inquiry to be set up.
-2 September 2019: HKBA condemned acts of individuals which constituted serious obstruction and interference with the operation of the Airport and the MTR in open defiance of court orders against such acts which represented a flagrant assault on the Rule of Law. It also called on the Government to address the frustration felt by the general public about its continued silence in the face of strong demands for constructive engagement to resolve the current crisis.
-3 September 2019: HKBA referred to various incidents which had seen some police officers using excessive force against protesters, including the indiscriminate use of teargas inside an MTR station, shooting of crowd control projectiles at shoulder height and at close range, and attacking passengers with batons or pepper spray inside a train compartment at the Prince Edward Station on 31 August 2019 without any apparent lawful justification or excuse. It condemned any abuse of power by the Police Force, noting that any unwarranted and excessive use of force by law enforcement officers, who are equipped with public authority and lethal and non-lethal weapons, cannot be condoned. HKBA reiterated its call for an independent inquiry.
-13 September 2019: Noting that a group of protesters called for the resignation of the Chief Justice on account of what they saw as overly lenient treatment of protesters by the Courts in granting bail, HKBA deplored any attack on the Judiciary. The statement sought also to explain the public a presumption for bail for the accused and the procedure by which the Courts consider bail applications.
-30 September 2019: HKBA deplored unwarranted abuse by some members of the public against a Senior Public Prosecutor involved in bail application of a protester who was refused bail in the court building. It explained the role and duties of prosecuting counsel in a criminal case, and urged the public to exercise reason and restraint.
The Bar Council made these statements in discharge of its obligations under Rule 2(b) of the R&R to safeguard the Rule of Law. They cover areas where the Council felt there was a need to explain to the public why the Rule of Law was threatened.
Apart from commenting on the proposed extradition legislation, it was constrained also to issue statements about matters affecting the administration of justice. One concerned unwarranted attacks on judges. Another concerned the intimidation of a government counsel who sought to do his job when opposing a bail application made by a protester.
The Bar Council has reminded people that protests have their limits. It has condemned all forms of unlawful violent behaviour. It hardly needs saying though that assaults, destruction of property, hurling petrol bombs and other violent acts cannot possibly be condoned or excused. That is something that does not need to be repeated every week.
Some have questioned the Bar singling out instances of apparent excessive force by police officers. It has been said that some of the protestors' violent acts were far worse, and police officers have a tough task to perform.
The reason why the Bar Council spoke out about use of excessive police force and failure to protect citizens when required is that it is axiomatic that Rule of Law embraces the notion that all Government's acts must comply with the law and be subject to effective review and legal scrutiny.
The Police Force is an executive arm of the Government equipped with powers to use firearms and other non-lethal weaponry to enforce the Criminal Law and maintain public order and public safety.
Police officers need to always act within the law. The Rule of Law requires that serious wrongful conduct on the part of police officers must be prevented and, if occurring, be identified, investigated and prosecuted if the circumstances warrant.
Any suspicion that unlawful acts by police officers were systemic and condoned by superiors is alarming. There is nothing more corrosive to the Rule of Law than violence inflicted on members of the public by apparently unaccountable state agents.
After the meeting the Bar Council will consider members' views when formulating its approach. I will attend the meeting with other Bar Council members to hear members' views and to respond to members' questions and suggestions.
Finally, I should record my thanks to Edwin Choy S.C. who resigned the post of Vice Chairman last week. I have written to Edwin on behalf of the Bar Council to thank him for the sterling service he has given the Council over the past few years. I regret that he found it necessary to resign because I valued highly his contributions to the decision-making of the Council which, as you will know, is largely achieved by arriving at a consensus view. I hope that he will return to the Council one day.
Philip Dykes SC Chairman