It is with heavy hearts Gilt Chambers announces the death of Dr Gerard “Gerry” McCoy SC on Tuesday 28th April 2020.
To say it is a great loss would be an understatement. Gerry was our guiding force as Head of Chambers, our friend, and our family. It has given us comfort to have read and received so many wonderful tributes about Gerry and the impact he had on the legal profession of Hong Kong. We sincerely thank everyone who has passed on their respects.
The stories we’ve shared about Gerry in the recent days have all had a similar theme, they’ve all talked about his generosity, his righteous fighting spirit, and his larger than life personality. He was one of the good ones, and he is now and will always be missed.
Below is an article that was written by our member and Gerry’s close friend Albert N.B. Wong, and published in both English and Chinese in the Ming Pao news.
On 28 April 2005, I wandered into a court room to see a tall, larger-than-life barrister gesticulating wildly with his right arm and flapping his gown around in front of the very solemn Judges of the Court of Appeal. I was still a reporter then, barely a week into my first job, assigned to cover the courts – in other words, to do ‘the boring stuff’ as the newbie. But as I watched this man so energetically argue his points I could not understand why people thought this would be boring at all. I had no background information as to what the case was about, but the arguments were easy to understand, appealed to anyone’s sense of logic and justice, and both intellectually and visually stimulating.
Dairy Farm Company had been charged with possessing for sale 2 pieces of prohibited pork without a stamp or a chop from the approved slaughterhouse. But the approved slaughterhouse dealt with 8,500 carcasses a day and stamps were applied by hand. Senior Counsel was demonstrating, by energetically trying to stamp every inch of an imaginary carcass, how it was physically impossible to apply that many chops a day to every single piece from every single carcass “without causing the whole workforce to incur repetitive strain wrist injury” – and therefore the unfairness of prosecuting on the evidence of these 2 pieces alone. My retelling of the story does no justice to this Senior Counsel’s fine balance in his physical representation, the dosage of wit, and the application of the law in the most delicate of subjects in the legal field – the stay of proceedings for abuse of process. That was the first time I would see Gerard McCoy SC in action and he would later become my pupil master and my closest friend.
Gerry himself never referred to himself as a ‘pupil master’. He hated that awkward dynamic of power between a supposed ‘pupil’ and a ‘master’. He forbade me from carrying anything for him. He arranged for a space for me to sit and work in my own privacy. If we went to Court, he did his best to ensure I could come briefed as Counsel to sit beside him so that I wasn’t just an anonymous typist sitting at the back. When it wasn’t possible to arrange a formal brief for me, he made sure to tell the Court that I had substantially contributed. He trusted me as a professional, and treated me as an equal. No working hours were set, no demands were ever made. If I contributed with work (for which he never even requested), he would pay me for it. Fair is fair. Whether you were his pupil or not, every young barrister was given a chance to work with him. He saw potential in everyone. He chose to keep practising in Hong Kong despite various other interests and qualifications in other jurisdictions because he loved the people of Hong Kong and hoped he could preserve and develop their spirit. It is no understatement that our whole Chambers is devastated, including our staff – because they were never just staff, they were his family. Hong Kong was his home, its people were his family, and he would do anything to defend it.
No doubt to the public, he is best known for the high profile cases involving multi-billion dollar disputes and clients. But my most deeply ingrained memories of him is the man behind the closed door in deep and intensive contemplation about a lay client in dire need, or a complex novel legal issue that would have far-reaching consequences depending on how he chose to argue it. Financial remuneration in these cases never crossed his beautiful mind. His time and effort doing legal aid murder appeals was far disproportionate to the fees. On the one hand, a person has been killed, a family is in mourning, and society is at risk. But on the other hand, another person’s liberty is about to be taken from him, perhaps unfairly, for life. How to define what justice is in this scenario is one of the most difficult questions society must face and as he taught me, we as barristers, are duty-bound to help answer them. If no-one would do these cases, Gerry would, no questions asked.
As a mostly appellate lawyer, he inevitably often had to criticise the reasoning of a Judge, or previous legal arguments. He never took this lightly. He was acutely aware of the potential embarrassment this might cause other people, and these were the most intense hours of consideration spent behind closed doors. In the Dairy Farm case, he would have reflected how accusing a public authority of an ‘abuse of process’ is a very serious allegation that may undermine the public trust in that authority to protect the public. But at the same time, public power must be kept within its proper boundaries. If it was the right thing to do, he would emerge from his room with energy, vigour and courage to pursue this most serious of legal arguments, often with the appropriate dose of humour despite the seriousness of the subject. Ultimately in that case, the Court of Appeal ruled that “the conduct of the prosecution…has been such that the integrity of the system of justice would be impaired if the prosecution were permitted to continue.”
It is impossible to describe how deeply Gerry cared about the integrity of the system of justice and was concerned by its fragility. He devoted his life to ensuring we would never be complacent or let our standards drop in that regard. Fairness, is not a flexible concept. It’s not ok to be less fair in the lower courts involving lower sums of money or lesser offences, and more fair in the higher courts. Less fair is not fair. Magistrates, Tribunals, and indeed our own professional conduct was always subject to Gerry’s scrutiny, for every drop in professional standards may destroy our fragile system. Every barrister must therefore have the courage to do what is right, no matter how unpopular that might make you before the Judge or your peers.
I therefore remember him best, for example, poring over the transcript of a 19-day Magistracy trial for one charge of indecent assault, accumulating a huge index of particulars as to why the Defendant did not receive a fair trial – because of the misconduct and abuse of his own Counsel. The theory that a conviction should be quashed for no other reason than because the conduct of your own trial Counsel, seemed a fantasy; outlandish; impossible to argue. I know of no other person who would have been brave enough to make such an argument. Gerry put the time and effort in to illustrate the factual basis to complement the legal reasoning. He won the impossible . The Court of Appeal ruled that the defence counsel’s conduct was such that “the result was a trial that was unfair to all interested parties, did no credit whatsoever to the legal profession and ultimately damaged the reputation and integrity of the legal system.”
No doubt, Gerry would still have approached this case, as with all cases, with an element of light-heartedness and good humour. But the underlying reasons for immersing himself into a case about a 19-day Magistracy trial for indecent assault was never simply because it was humorous, but because he recognised the fragility of our legal system, and how easily that system can be eroded even by our own falling standards as barristers. He simply decided it was the right thing to do, and if no one would do it, he would. Just as he represented the Filipino National who was 8 ½ months pregnant and was unfairly refused an adjournment of the Torture Claims Appeal Board despite her obvious discomfort during the hearing . These are the types of cases that I will remember him by, more than the high profile ones for which he was so uneasily photographed at the entrance to the Court. Fairness, the integrity of our legal system, and the success of Hong Kong, was what drove him most as a barrister. Behind his larger than life personality and his exhilarating advocacy style, was a deep sense of responsibility to preserve our legal system and make Hong Kong a fairer, better place.
I did not realise until re-reading the Dairy Farm case that brought our lives together that it would be exactly 15 years later, to the day, that Gerry would pass away. Those were 15 truly inspirational years, and working closely with him for the past 7 years was simply a dream come true. Hong Kong will miss him painfully. I will forever be indebted.