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就律師會理事會選舉給事務律師的公開信:投票方法、「政治化」與推薦候選人

2018/5/14 — 14:26

香港律師會門前(tvb新聞截圖)

香港律師會門前(tvb新聞截圖)

RE: LAW SOCIETY COUNCIL ELECTIONS 2018

  1. Annual Law Society Council (“Council”) elections are upon us again. Quite a number of you have approached me for my recommendations on candidates, with the aim of potentially following my recommendations. 
  2. Can I once again thank you for your support and trust in my judgments in this regard. I had not originally intended to release a “recommended list” after having done so last year.  Nonetheless, at your suggestion and with your support, I am now doing so again this year.  I dare not say that my recommended candidates would always go on to become “good” Council members.  But I guarantee you that I do give candidate choices serious consideration before making my recommendations.
  3. I will begin by tackling a number of overarching matters, before proceeding with my recommendations. In summary (with more detailed reasons set out in the course of this letter):
  • Voting method: I urge you to cast your vote by postal ballot rather than relying on proxies. Postal ballots override proxies.
  • What is or is not too “politicised” for Council membership: I believe the mere holding of political views and beliefs do not render a solicitor unsuitable for Council. Nor would the holding offices which are generally consultative in nature or do not involve deliberation of specific legislative proposals. But I would, as a matter of principle and regardless of a Council candidate’s capabilities or his/her de facto ability to remain politically neutral when wearing a Council “hat”, refuse to support any Council candidate who is a legislature member (including Hong Kong Legislature and Mainland Chinese National People’s Congress) or a member of a political party.  Fortunately, no Council candidate this year falls within this category.
  • My recommended candidates: I recommend voting for (i) LINTERN-SMITH Michael John; (ii) GILCHRIST Brian William; (iii) DALY Mark Douglas; (iv) CHEUNG Tat Ming Eric; (v) LAM Kenneth. Additionally, Council may wish to consider (subject of course to normal co-option processes) co-opting candidate CHAN Tat Hin, Pierre at the next available opportunity.  It is not for me to make demands or otherwise provide a fixed prescription as regards how such an opportunity might come about at an early stage.  One possible way would be for a current legislative body or political party member of Council to resign (I am aware of at least one Council member who became a Liberal Party member in 2017) and make way for Pierre.

How to vote

廣告
  1. You will be given postal ballots and proxy forms in the latter part of this week. There are nine (9) candidates standing in this year’s Council elections.  You can vote for up to five (5) candidates, this being the number of vacancies in Council this year. 
  2. Please vote by postal ballots (a self-addressed envelope will be provided amongst the voting papers) rather than by appointing a proxy to vote on your behalf. Postal ballots do not depend on someone else actually being able to turn up to the Law Society Annual General Meeting on 31 May to vote on your behalf, and it also overrides any proxies lodged without the proxy holder knowing it to be so.

Question of “politicisation”

  1. Much has been bandied about by all and sundry (including me) about the importance of maintaining the Law Society’s political neutrality. But everyone has political views, and if that in itself becomes a disqualifier, then no one can become a Council member. 
  2. In this regard, I note that the current favourite to be the next Law Society President, Melissa Pang, has been criticised for being politically “red”. I do not see that as a disqualifier per se for a Council or leadership position within the Law Society, no more so than being “blue” or “yellow”.  Should Melissa stand for the Law Society Presidency after Council elections, I see no basis for opposing her on account of her perceived political leanings.
  3. The question, then, is where to draw the line between someone being entitled to having personal political views and being so “political” as to fundamentally affect perceptions as regards the Law Society’s political neutrality, such as to be unsuitable as a Council member. I believe the line should be drawn largely in favour one’s right to have political beliefs, with only a few specific exceptions:
  • Merely holding or being perceived as holding particular political views should not per se be a basis for opposing a person becoming or remaining a Council member. Nor should holding official positions that are generally consultative in nature (eg various Mainland Chinese People’s Consultative Conferences or Hong Kong District Council), nor where an office does not involve deciding on specific legal proposals (eg Chief Executive Election Committee).
  • However, the situation is different where a solicitor holds official roles that involve deciding on a wide range of legislative proposals (eg Hong Kong Legislature, Mainland Chinese National People’s Congress), or where a solicitor is a political party member. I consider such a solicitor to be unsuitable for the Council regardless of their capabilities or his/her de facto ability to remain politically neutral when wearing a Council “hat”. 
  • The rationale for my drawing this line is simple. These are unambiguously political positions that involve the taking of (or, in the case of a member of a political party, the adoption or at least tolerance and non-criticism of) positions across a wide range of legal issues.  If every issue that a legislature is considering or where a political party may have a position were to be subject to various rigorous conflicts declaration and recusal mechanisms within Council for a legislature or political party member of the Council, it would materially affect that Council member’s ability to perform his/her duties within Council. 
  • Even if such conflicts can somehow be resolved, it would still create a real public perception (however unjustified it may be) that Council is beholden to overt political interests. Further, in connection with Council members also being members of political parties, once the precedent is set and tolerated, every political party might see it as being to their political advantage to gain a foothold in Council.  This would turn Council into a completely partisan political battlefield. 
  1. I am glad to note that none of the nine (9) candidates for Council this year fall into the category of legislature or political party members such that I would feel obliged to not consider their candidacies from the outset.

My recommended candidates

廣告
  1. Having considered what I know of the candidates (including through personal knowledge, publicly available records, and consulting widely with fellow solicitors, including voices from within Council), I have decided to vote for five (5) candidates.
  2. First comes Michael Lintern-Smith. A former Law Society President and also a long-term tireless worker on issues such as anti-money laundering, I was one of his nominators for his candidacy this year.  In circumstances there have been suggestions that Council has in recent times been relatively factionalised, I believe it is important for an “old hand” (dare I use this term) like Michael to remain in Council.
  3. Second is Brian Gilchrist. He is one of the most respected civil litigators in Hong Kong.  In terms of his work on Council, I have heard nothing but unqualified praise from a range of Council members both for the quality of his work and for his ability to work with Council members of different persuasions.  Media speculation about him becoming the next Vice President of the Law Society are well justified and well deserved, and he will no doubt be a fantastic leader of the Law Society.
  4. Third is Mark Daly, with whom I have worked closely in the past in the Constitutional Affairs Committee. He is not afraid to speak out on fundamental values that lawyers (and, indeed, Hong Kongers generally) hold dear, but he always does so in a measured and non-confrontational manner.  He practices and preaches human rights without grandstanding about it.  I have also heard plenty of positive feedback about him being someone who can firmly argue his corner but yet be willing to compromise in his Council work.
  5. Fourth is Eric Cheung. His political persuasion does not come into it, just as Melissa Pang’s political persuasion is irrelevant to her potentially becoming President.  What matters to me is that he can add diversity to Council given his background as an academic.  He also has a long track record of serving the Law Society (eg he and I were also in the Constitutional Affairs Committee together, and he remains a member of the Pro Bono Committee).  He is actively involved in civil procedure research and in instilling a pro bono culture in law students. 
  6. My fifth recommendation was what took me the longest. The choice was ultimately between Kenneth Lam and Pierre Chan:
  • Kenneth could very easily be perceived by those who do not know him as a firebrand former Hong Kong student leader (he was an eyewitness to the events of 3-4 June 1989 in Beijing) who has been involved in human rights cases. On this basis, he could be misunderstood as an unwelcome radical and also an unnecessary “double up” on Mark Daly’s role as Council’s human rights expert.  But that is not the Kenneth I know.  The Kenneth I know is someone who is not reflexively anti-establishment or anti-China.  Indeed, he spent time in Hong Kong Government as an Administrative Officer, and he spent many years operating a manufacturing business in China (he even moved his family to China for some years) prior to becoming a lawyer.  Further, his practice consists primarily of personal injury and not human rights cases.  As a sole proprietor, he can also give useful insights on issues like locum and supervision of solicitors’ work by sole proprietors.  Overall, Kenneth has a set of life experiences that would enable him to bring a perspective that typical solicitors in Central who spent years in the comfort of air-conditioned offices might not have.
  • I do not personally know Pierre. Obviously I do know that he is an experienced and well-respected commercial lawyer specialising in taxation issues in a leading international law firm. But what carries significant weight with me is that highly respected senior members of the profession (including Council members whom I respect) have vouched for him as a strong candidate.
  1. In the ideal world, I would have hoped to be able to vote for both of them. However, as I already support four (4) other candidates, I can only recommend one of Kenneth and Pierre.  I have decided to vote for and unreservedly recommend Kenneth over Pierre for the following reasons:
  • Kenneth’s varied, non-stereotypical lawyer life experiences are ultimately too strong and too much of a positive for me to ignore.
  • There are two (2) personal injury specialist candidates (of which Kenneth is one, the other being Nicholas Millar) in this year’s Council elections. Their voices deserve to be heard and I consider Kenneth to be the stronger of these two candidates due to his overall qualities.
  • The best chance of ensuring that both Kenneth and Pierre can become Council members in short order is if one is elected and the other is co-opted by Council at the next available casual vacancy. Given Pierre’s status as an “insider” within Law Society circles, he has a much better chance of being so co-opted by Council than Kenneth.
  1. As for the availability of such a co-option opportunity, it is not my place to make demands of Council or to be prescriptive on how that can be achieved. I would merely note that one possibility would be for a Council member who is a legislative body or political party member (I am aware of at least one current Council member who joined the Liberal Party in 2017) to resign from Council as early as practicable after these elections.  Council can then, subject to normal co-option processes, subsequently choose to co-opt Pierre. 
  2. In raising this possibility, I am not seeking to criticise any current Council member who has chosen the legislative or political party path. Nor do I seek to impugn their reputations or integrity as Council members.  I do not doubt that such Council members have served with distinction.  There are no suggestions that any current Council member has in fact put politics ahead of his/her duties to the Law Society.  Further, political life has much to commend itself in its potential to make a difference for the people of Hong Kong.  It is an honourable calling that should be respected and admired.
  3. Nonetheless, for reasons outlined above, I strongly believe that legislators or political party members are fundamentally unsuitable as Council members. I know my view on this is shared by various respected senior members of the profession, including former and current Council members.
  4. Thank you all again for your attention, and do remember to vote!

 

Yours faithfully,

Kevin Yam

(Yam Kin Fung)

Note: The views expressed above are my own personal views and do not reflect the views of the law firm to which I belong or any entity with which I may be associated.

 

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