Episode 25 - Johannes Chan

In this episode, we speak with Professor Johannes Chan, former Dean of the Faculty of Law at the University of Hong Kong and, as well, a barrister who has appeared as leading counsel in many major public law cases. He is currently a Visiting Professor of University College London. Johannes reflects on his distinguished career with our Senior Partner Colin Cohen. Stay tuned. 

Host: Colin Cohen
Director: Niall Donnelly
Producer and VO: Thomas Latter  

Established in 1985, Boase Cohen & Collins is an independent law firm equipped with Hong Kong knowledge and global reach. Please visit our website.

Transcript

[00:00:32] Colin: It's a great privilege that I'm going to talk today with Professor Johannes Chan, Senior Council. He was formerly Chair of Public Law Faculty of Law at University of Hong Kong. He's also the former dean of the faculty.

He retired from Hong Kong U in July, 2021. And is now appointed an adjunct Professor, after his retirement. He is a specialist in constitutional, administrative, and human rights law, and he's published widely in these fields. Johannes, it's an honour to have you here as I always ask all my guests, what's keeping you busy at the current time?

[00:01:07] Johannes: I'm still involved in some part of University administration, so last week is still all interviews for a program, which indeed, I help setting up is the UCL Hong Kong U Double Degree Programs. It takes me quite some time to go through all the interviewees and so on. I'm focused more on my research after my retirement and I'm working on a book which is about Judicial Independence, Rule of Law, under one country, two systems. So it's a major project is progressing slowly and taking my time. But that's keep me busy and there a whole lot of other things as well.

[00:01:37] Colin: Yes, and just to help our listeners, what you are doing is this, you are interviewing students in London. Hoping that they're gonna come to Hong Kong U and spend a year in Hong Kong U. Have I got that right?

[00:01:49] Johannes: Oh more than that. It is a double degree that I set up during my deanship. The student spend two years in London with UCL and then the next two years with Hong Kong U and after four years, they graduate with two degrees. One ROB degree from UCL and one ROB degree for Hong Kong.

So this is a great catch and very attractive for a lot of very good students. They enjoy the benefit of being educated by two great law schools in the world. So it's more than just one year or half of the degree in London, and half of the degree in Hong Kong.

[00:02:18] Colin: And Hong Kong students go to UCLL, I presume as well. 

[00:02:22] Johannes: Right, the first two years everyone will be studying the first two years in UCL. And then the last two years everyone will come back to Hong Kong and do the remaining part of the degree in Hong Kong. And we have simultaneous admission exercise carrying both in London and in Hong Kong.

So that's what I've been doing. And we have been attracting very top students for that program. And it's a very small program.

[00:02:43] Colin: That's great. Cross fertilization, I would call that. Very interesting. Well anyway, let's go back in time a little bit and a little bit of your upbringing, your childhood. Where did you study? And I'm gonna ask you how you got yourself in to become a lawyer.

[00:02:57] Johannes: Well I came from a public housing. My family came from China, like most of the people in Hong Kong in the 1950s. They tried to avoid the turmoil in the mainland. And indeed my maternal grandparents, they are small landlord in China and suffer quite a lot during the land reform in China later during the cultural revolution.

So they came here almost as refugees, or these days, you call them economic migrants, hoping for some better futures. And we just work like that and work through the system. And partly because of their backgrounds, they don't trust law. They think law gets inextricably involved with politics and politics is bad, so therefore they don't want the children to study or to do anything with law or politics.

And partly due to the inference of some very popular TV drama at that time social worker is a very popular professions. So initially I thought, that sounds interesting. And so initially I thought I might just become a social worker. And just to prepare myself, just before the matriculations I joined some voluntary organizations doing some voluntary work with detainees in detention centre.

And at that time they basically want someone of their age. These are all young kids and then they just wanna keep playing football with them every week and get to know them. And then I start to get to know these people. And most of the people in detention centre, they don't stay for a long time.

Six months, nine months, and then they are going out. A lot of them with family problems. They don't study well. And then when they're released they go back to the same old circle and then a few years later, they become an adult and becomes an adult, prisoners criminal and so on. Which is very frustrating in a way.

That's what social workers is doing. And then, you don't really change anything. And then a lot of these young kids, they are not that guy at all. And most of them commit minor crimes. And sometimes we don't catch the big guy.

And then someone commit a minor theft, they're just standing outside. The one who commit the theft was not caught, and then they were caught and then they put in detention centre, that kind of things which aroused my curiosity. I want to know more about the system, know about law and so on.

So that's what's bring me into law at that time with very vague idea whether I want to be a lawyer at all, at that time.

[00:05:04] Colin: So you went on the LLB at University of Hong Kong where you studied. And then obviously in those years, your contemporaries and some of your fellow classmates are now probably doing quite well at the bar or as solicitors or even on the bench.

[00:05:19] Johannes: Right, right. 

[00:05:20] Colin: It's interesting, you then decided to do an LLM at the London School of Economics. Did you enjoy that?

[00:05:25] Johannes: Oh, very much. I think it changed profoundly what I decide to do afterwards. Part of the reason at that time and I'm probably the only one in my class which decide to continue with further studies. And again, in the early eighties, that's not very popular or very common. And people think that if you want to be a lawyer, then go and practice. And part of the reason I did that is by the time I complete my PCLL, I'm still not quite certain I want to be a lawyer or not. And I was attracted to the Bar. But I think I'm not quite ready yet, I want to see the world a bit.

So I decide to go to RSD and mainly attracted by the Professors whom I work closely with, Professor Rosalyn Higgins. And she was then a UK member on the Human Rights Committees. Later she became the president of the International Court of Justice of an eminent human rights lawyers and also an honorary Queen's Council.

And so I hope to see the world a bit, think a bit more what I want to do. And that period, I think Rosalyn inspired me a lot, in a way, and to some extent my later career almost replicate what she has done. Practice, academia, public services and so on. And she's able to combine everything.

And I met a lot of very interesting people in London which sparked my interest in research. And I think, I enjoy the research work and there are a lot of research which have not been done in Hong Kong. And I also reflect that I might want to do a job which is more human oriented.

To me, a profession is challenging, but largely it's not that human oriented. You resolve a problem of your client, you finish the case and then you out. You never see the client again, and the client don't want to see you again. Right, so if you are looking for someone which is really human-oriented, social workers too late to go back with law.

And then I think now teaching is one thing. I could inspire the next generation of lawyers, students, teachings. That's a more human oriented job. It combined with what I've learned, it combined with my research interest. And then it was thought at that time, the great uncertainty of Hong Kong and the Sino-British Joint Declaration Negotiation has just started.

No one knows what it will lead to. So I think that might be a good time to pursue an academic career. Hopefully I may have more influence than I might be able to contribute more in that area. So I think that that year in a way changed me quite a lot. And gave me a better idea and visitor in London. Give a better idea and vision what I really want to do with my life.

[00:07:46] Colin: And then you came back to Hong Kong. And in 1982 you were called to the Bar. And just a little sidestep, I arrived in Hong Kong in 1981 and we met a little bit later, but you then went to the Bar. You specialized in public law and human rights and did you enjoy your practice at those early stages.

[00:08:05] Johannes: Very much. Oh, in those case, there's not much human rights cases, to be honest, at that time. And indeed in the first, almost 10 years, I did mostly typical what a junior barristers would do. I was lucky, I got quite a bit of civil cases after that. So start with personal injury, contract, mercantile. And indeed when you came, I was actually teaching personal property with Bob Ocorp, Merchantile Law with Malcolm. And so I've done contract, I've taught and so on for quite some years until I think mid 1980 or mostly late 1980s when Bill Clark joined us. Then we start the course on civil liberties.

 But it is really after 1990s, I start really specializing in human rights. And human rights public law has always been my interest. But I think in the early days of practice, it is quite useful to do all kinds of civil criminal case. And I always advise my students when they want to specialize, you need the general criminal work. You need the general civil work. You need to understand how the system work before you specialize. And public law built a lot on that in a way. So I really started a career and that was the time after we have the Bill of Rights in 1991. 

[00:09:13] Colin: But what is also very interesting is that you became a lecturer in 1985. That's when you went into Hong Kong U and that's when we first met. Because I arrived in 81, I was in practice, and then I got recruited by Professor Willoughby. They needed people to teach on the PCLL. So ended up as a lecturer in law and I was in 83 to 88. And that's when I was teaching, I was told with Bob Ocorp to do Mercantile And Law. So we were colleagues for those years, early days.

[00:09:46] Johannes: I enjoy very much that time actually. Yeah. It's a, it is a more cosy environment at that time. 

[00:09:51] Colin: Nowadays and just digressing whenever I go to court, all the judges, even for Chief Justice is a judge who I taught. Anderson Chow and lots of the Court of Appeal Judges.

I was a lecturer, especially on the PCLL. Cause that's when I was teaching accounts and doing other matters. So, I enjoyed myself at Hong Kong U. I know you enjoyed yourself and I then left to go into private practice in 1988. But of course, you then continued with a very distinguished career at Hong Kong U. You set up many courses, highlights of the early days.

Did you ever end up thinking you'll do 40 odd years at Hong Kong U at that time?

[00:10:30] Johannes: Probably not at that stage. I always try to maintain the balance between practice and academia. And I never really left practice as such, but it is very difficult. But having spent almost 40 years, like you. I think I taught almost two third of the legal profession and the judiciary in a way.

But yes things changes and I think there are a lot more that you want to do. I think partly because of Hong Kong keeps changing by 1988, I think I'm fortunate to join at the time, after 85. We have a lot of discussions on the basic law. We start drafting the basic law. And so it happens to be my areas.

 I had the opportunity to work with very senior people. I got very challenging jobs. Otherwise, I would probably not have an opportunity to take part and shape, both say how the basic law was drafted. There are a lot of constitutional debate and discussions. And then we have the Bill of Rights and Bill of Rights came into effect.

You actually see through, how Bill of Rights is actually enforced. I participate in some of those cases. Tried to train both the prosecutions and the defence lawyer on Bill of Rights and so on. And then with people like and Andrew Burns. And then we try to set up a major international human rights program trying to secure scholarship and we attract students. Particularly from the more developing country in Asia. We attract at the height about 20 students each year from Sri Lanka, Cambodia, and all these countries, which is now the One Belt, One Road country. Except we started 20 years earlier. And from then on, I think it just carry on. And I know at some point I would probably have to take up the more senior administrative role.

[00:12:05] Colin: Well, you took that up quite early because you became head of the law department. First of all, and then you became Dean from 2002 to 2014, which is quite a long term as a Dean. But before that, you were head of the department. 

What I find quite interesting, because I was acting head for three months. And I had to spend so much of my time, which I really disliked in administration. How were you able to do all this research and all this academia and all this very interesting work and yet you are head of department and then Dean. Which requires you to manage and that must have taken up a lot of your time, I'm interested in that. 

[00:12:44] Johannes: A lot of colleagues take up the job because it is a duty to do it. And because you're a senior then you have to do it. And I got promoted as Professor at that time, so I have to do it. And I try to avoid that kind of mentality. I think if you are in the job, you try to do the best you can.

And as you said, that there are a lot of administrative work and one thing I think is University is sometime too rigid. And, we don't have enough support administratively, and you end up all the academics doing administrative job that is not a very fruitful and a good use of resources.

So when I became head, one of the things I want to do is shield off my colleagues from administrative work. I would take up most of the administrative work and leave colleagues to have the space and time to do what they should properly do. And then at that time there was a lot of things that need to be shake up.

In 1999, when I became a head of the department, [Ropa Redman] published their report, very controversial report. Among other things is to abolish the PCLL. So one of the things is how to get out from that, in a way. 

But there are a lot of reforms that needs to be done. And I think it is an advantage for me, partly because of my practice background. I'm on very good terms with the professions, particular with the Bar and the Law Society. And at least they are talking to someone who knows the practice, in a way.

So I think it is easily help and there are a lot of misunderstanding on both sides. We don't have a lot of people like you who crossed both sides at that time. And I think a lot of colleagues, need to know better the practice and the practice needs to know better the professions.

So that's one thing which keep me very busy. And then by the time, when I finish my hardship and I know it's University is a great time and What I think at that time is Hong Kong is good. We have a lot to do on the PCLL side, both the curriculum reform as well as the governance structure.

And I'm all for that, the profession should have a bigger say in the PCLL. After all, these are preparing students for practice. So it should be a more healthy and more intensive collaboration. But at that time, the University, the faculty is still very much a local teaching University, we are good, but it's still largely local.

And I think the way out is to become really international and globally visible and we have to benchmark ourself with the best University in the world. We should benchmark ourself and try to bring ourself to that kind of status.

And so that's what I tried to do in the first couple of years as the deanship. Hong Kong, also a very challenging time at that time. As soon as I took up deanship, it was the time when Professor who had stepped down because of alleged interference with academic freedom the [Robert Chum] Affairs.

So University was in a very low morale at that time. So we have to steer through that. Bring up the morale, reshape Hong Kong U and then [Lap Chi] came and [Lap Chi] is great. And he leaves a lot of rooms for the Deans and he's very supportive of the Deans. And so we start working how to global internationalization and so on.

And the Dean's role is very different from what it used to be. And before that, the Dean is mainly responsible for teaching. At the time since I took up the deanship, we changed the role almost completely. So I was responsible for strategic planning, human resources, financial planning and budgeting, PR, external relationship fundraising. I feel I'm running a company.

[00:16:07] Colin: That's it. I mean, the current Dean said exactly the same thing to me. And what is also very interesting, in 2002, you became Dean, but very interestingly, in 2003, you became the first, and I think, only honorary senior council in Hong Kong. And to our listeners, the senior council in Hong Kong is equivalent of the King's Council in England.

Now, how did that all come about? Is that something you were approached where you had the official tap on the shoulder? So tell us a little about that. 

[00:16:39] Johannes: Well, it comes as a very strange and almost totally unexpected. And of course, partly since 1991 my practice. I still maintain a bit of practices all in public law and so on. And I always think that the priority has to be the University. So by 2003, one afternoon, I just received a call from [Andrew Lee] and Andrew called me Johannes, we are thinking of giving you the title of Honorary Senior Council, do you want to accept it? And how could anyone say no? Now frankly the idea of applying for Silk has come across. I think no Barristers would say that they have never thought about that. But at that time, because, you know there is certain criteria. One of the criteria is your income level has to exceed certain amount before you are eligible to apply. And being a almost a part-time practice. I know I'll never reach that level.

So I think I give up and I don't think I'll ever get that as such. So when you receive a call from Andrew, it is really surprising and of course I've said yes. And then the next thing, Andrew, is that yes, then prepare for that. We'll make the announcement in a couple of weeks' time. And so the same ceremony as any other seal can just prepare for that.

[00:17:48] Colin: And, I remember that. Because at that stage were others appointed and I always get invited to these Silks reception at the Hong Kong Club. I remember it was a very great occasion. Now, you're senior council, tell us about the cases, your landmark cases, anything that you really feel proud of. 

[00:18:04] Johannes: Well, there are quite a number of cases which are certainly be proud of. Even before I took Silk. After the changeover, there was a prosecution, that was the last time I act as prosecution on fiat against Oriental Press.

They have a paparazzi trial against, [Godfrey] case. 

[00:18:20] Colin: Great Arsenal supporter and unfortunately passed some years. Lovely, lovely man. 

[00:18:24] Johannes: Yeah, and think that after the changeover, the Department of Justice was concerned that they have to prosecute a major newspaper in Hong Kong. So what better than to get a human rights lawyers to prosecute that? So that was a fun case. But after that, I think another very major case, which I remember well, is the social welfare.

Which the first case on social welfare and represents someone who came to Hong Kong. And then her husband passed away three days after she arrived in Hong Kong. She was driven out by the public housing because she was not a tenant. And she applied for social security, she has to initially to live for one year. And then somehow the social welfare department raised the bench to seven years.

So we are challenging whether that substantial increase in eligibility requirement violates the right to social welfare. I did the case against [David Panic] all the way to the Court of Final Appeal, which is great fun and partly also during that case, I received a lot of very angry message from people saying that I am spoiling Hong Kong economy and how could you give social welfare to these new immigrants? And a lot of racists, discriminations remarks. 

[00:19:28] Colin: And Lord Panic on another case has received exactly the same when he was acting in cases in England recently. People don't realize that we as lawyers, we are duty bound, especially with you as barristers. We are there to defend, to do our very best. We may not like our clients, we do it because we are really so important to the Rule of Law. Now, what's also fascinating is that you have also a outstanding record of public service. Consumer Council, Broadcasting Authority, Press Council, these just a few. Yet, you are heavily involved in big cases. You have a massive teaching obligation administration. How do you manage your time to have such distinguished services on those entities? 

[00:20:12] Johannes: Well One just have to be very disciplined. And actually, like what you have been doing. I've been enjoying all your blog and I'm sure that you're writing your blog while you are flying on the plane and so on. To some extent, particularly with academic work. To do serious academic work, you really need a very focused concentrated period of time. And as Dean, I think the work of a Dean is very much like a Solicitors, is that at any time, 30 people are asking to see you with all 30 different problems or 40 different problems. So you deal with one thing and then you may put down another phone call come in, so you can't really concentrate.

And at that time, I did a lot of international traveling for collaboration, building up the international profile. I participate in academic conferences. And what I did is sometimes is every three conferences I use two of them to prepare my academic work. So while I'm overseas, while I'm on the plane, that is the time, no one can disturb me, 14 hours of flight. And I'm very good actually in writing on airplane. But it is tough, the timing I think is just quite amazing. And back to the earlier question you raised about the campus building. 

[00:21:19] Colin: I was in the Knolls building and when I left in 1988, we all complained and it was always this project in the background. I was always told by the deans before you, don't worry we're gonna move into wonderful buildings and you'll find it a lot easier to work and help. Don't go to private practice, please stay. But I couldn't do both, I had to go to private practice cause I was so busy doing all these bigger cases. So tell us about the building, absolutely fabulous, that building.

[00:21:44] Johannes: Yeah, so in 1988, I think we moved to [KK Leung] and very soon [KK Leung] was overflowing. We don't have enough space and so on. And by the time I took the Deanship. One thing I think is if we say that the rule of law is so important and we are the oldest law school and a prestigious law school. The state of the law school actually tells you how important the rule of law is. And I visit some countries with a law school say they're very good, very shabby building next to a broken public toilet and so on.

I think that that in a way tells you the rule of law in the country as well. So I think this is something important that we should have our own building in a way. So as soon as I take up the Deanship, that's one thing I think I would like to do. Initially I have my eyes on the [Old Halls], I like that kind of classic buildings. At that time, the three blocks of old halls, one of them has been demolished, but the remaining two, and I think that that looks befitting for a law school. The problem with that kind of building is you need a very large plot and you can't build too high. And also they are listed buildings, and then I find that maintenance of course is astronomical.

But then I actually did a pilot study. I engaged colleagues from architecture department to do the studies for me and so on. So after all these work, my conclusion is that that is the no go and it doesn't really fit our purpose. I'll be looking for alternative sites and then the Centennial Campus ideas come up.

And luckily because I've done all the pilot studies, the next day I go to lab chair and say, I have a full plan. I know exactly what I want and I have the study and et cetera. And then on the Centennial Campuses, I don't want a matchbox. I don't want a square building. There's just too much on them, at least I want something different. And at far end, you always have more flexibility and so on. And so that's how I got the building Ahead of other Deans before they start planning. I got everything done already. 

And I think it's a nice building and I participate heavily in the design work closely with the architects and especially during the last phase, I was on a construction site almost every week. You have to be there to see how things done and so on.

I'm particularly proud of the conference room at the top with all the glass panel overlooking the Western Harbour. Make good use of the space. 

[00:23:56] Colin: Great, I'm still an honorary lecturer. Somehow every three years they still keep me up. I must be doing something right. And I give lectures occasionally to the students and the new lecturer hall, the Moot Court as they call it now.

It's the big lecture room. Really modern up to date facilities, which is really great. 

And then moving on a bit, people don't realize in 2021 July, you retired from the University. That is because you reached age 60. So you retire to do part-time matters. And you are now in London. The future, where do you see yourself going from now on? I'm 68 and everybody asks me what's my retirement strategy? So I'm asking you, Johannes, what is your retirement strategy, if any? I say I do not wish to retire at all at the moment.

[00:24:39] Johannes: Well, I think retirement just means that you are free to pursue what you really want to do and without having to account to your boss and so on. So especially at these days, I think yes, people like to linger on with the job longer and at the same time having worked for almost 40 years.

And I think when I am healthy when I can still enjoy life a bit maybe I should start working on something else that I'm really interested or start another part of my life. Which I don't have chance to do and so on. So, as far as academic work is concerned, it doesn't really matter.

I keep publishing, I keep writing. So whether I'm with University or not doesn't really matter except, how many articles for submission for assessment and the research assessment exercise. I don't have to do that anymore, just do it. And I end up even more productive than before.

And then I can pursue other things. And I think at a party that my colleagues kindly flow for me for my retirement. I said one thing, I'm still hoping to become a professional golfer.

[00:25:40] Colin: Yes, that never happens. I always think I'm gonna become one. And what about practice? Are you still doing a bit of practice?

[00:25:46] Johannes: Less and less though when I'm not in Hong Kong. At first I think I might be doing a bit more and during the covid time, I'm still appearing online. But these days I think the court is very reluctant to grant online hearing, which may be a pity in a way. 

The court could be more flexible on that, because that's one way we can tap a lot of outside talent. Unless I'm coming back to Hong Kong and which I won't rule that out. Hong Kong, there's still a lot of good friends around. I still enjoy Hong Kong very much.

[00:26:12] Colin: Yeah, so, so let me ask you something about that. It's been a very challenging four years for Hong Kong. The troubles, three years of covid, being locked up, quarantine. We're emerging from all of that. What are your thoughts on the future of this great and wonderful city. It's my home and I have no intention of leaving at all, your views?

[00:26:31] Johannes: Yes, I think Hong Kong has always been very resilient. We have gone through many crisis before and this time, I think Hong Kong faced a great challenge. Not so much from outside, but from inside in a way, which differs. I still think that this is a great place. There are lot of potentials. But one thing for one country, two system. I think the essence of it is we are different. That's why they're two system. And in the last couple of years, I think we talk too much about convergence. We do not talk enough about divergence. And the value of Hong Kong to China is because we are different, we do things differently.

We have our own values, we have our own way of doing things. And Hong Kong is an international city. That's how Hong Kong is different. If you become another Shanghai, another Shenzhen, we lose the value. Both for ourself and for China. I think this is a change which we haven't seen before in the previous crisis, whether it's Asian financial crisis or other crisis. We have the SARS and so on. 

Every time we manage to come through and we still maintain some of the core values there. And this time around I see too much about this convergence. And convergence not only on the political side, it's on the mental side. For example, In the University we are now looking inward to China as our benchmark.

Now of course, there are things that which we could definitely learn from China. But like in my days when I was Dean what I aspire that Hong Kong U is, we have to be at the level, if not Oxbridge, we have to be the Harvard in the Asia. We have to be at the same league as those top Ivy League Universities.

And I'm sure the same is the aspiration of almost every different professions. We are aiming at the best in the world, that kind of standard we should adhere to. And these days, our benchmark is basically the Greater Bay. And of course it is an ambitious project of the governments.

But if I ask how many people in Hong Kong knows what are the cities in the Greater Bay? I think very few people be able to name all the city in a way. And then it seems we are increasingly cutting off from the outside world as if we don't care. I think that is the greatest challenge.

And if Hong Kong is to survive this Ram of Challenge. We have to be bold enough to say we are different and we want to maintain a different value, a different system and then we should continue to benchmark to maintain our link with the outside world. I think that's the only way and Hong Kong has to be remained different in order to be valuable.

 So if you can maintain that, I think Hong Kong has a very bright future. But then otherwise I think that the danger is Hong Kong becomes just another city in the mainland. Well, it will still have its value but then it will never be the same Hong Kong then.

[00:29:18] Colin: I agree with you entirely. It's the uniqueness of Hong Kong, the ability to have the system, the way in which the courts, the rule of law, which is fundamental to the way of life and the high degree of autonomy is the way in to all of that. Johannes, you are a great friend of mine. It's an honour and a privilege to have you talking to us. Thank you so much for joining us on Law & More. Thank you.

[00:29:45] Johannes: And great to talk to you as well, thank you.