Episode 5 - Clive Grossman

This week, our Senior Partner Colin Cohen meets one of Hong Kong’s most high-profile barristers, Senior Counsel Clive Grossman. They discuss a range of topics, including Clive’s upbringing and early legal career in Southern Rhodesia, his work in the pre-handover Hong Kong Legal Department and subsequently in private practice, and his newly-published autobiography. 

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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

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Colin: [00:00:00] Clive, welcome to Law & More. How's life treating you today? 

Clive: Well, when you get to a certain age it sends to treat you a little better in the sense, not so much is expected of you. However, what one has to do is a little more difficult to do it.

Colin: I'm sort of feeling like that. Having just got released from quarantine last night, 14 days in prison and could not get even early release. Anyway. Before I started asking you about your career here in Hong Kong, let's look back at your childhood, born in London and quite close to where my grandpa was born, in the old Ford road and you were Hackney as well. So tell me a little bit about your childhood and what actually took you to, what was, Rhodesia now known as Zimbabwe. 

Clive: I'll tell you a shortly as I can. I was born two months exactly before the blitz started and Hackney was destroyed. And my father was in the army. My mother. Took me as an evacuee to Macclesfield where we stayed for a while [00:01:00] then came back after the blitz, finished, stayed in Dollis Hill with my grandfather.

And then when the V2 rockets started again then we went back to Macclesfield and I can remember Macclesfield I was four or five years old with my little sister, just born in 1944. And we stayed in London for another couple of years after the war, but my father he'd been in the army.

He had a difficult time. He was one of the liberator's of Belsen Concentration Camp. And that had a very marked psychological effect on him. I think. And the British government were trying to send white ex-servicemen to the colonies. And he couldn't think of anywhere more remote from Europe's in this little place, in the middle of Africa.

And so we went as did a lot of other people,

Colin: And what was your first memory of arriving in Rhodesia 

Clive: Well, I can actually have a picture of us arriving on the train being whipped by my father's twin brother. Who'd been there before us, took us where we were going to live for the [00:02:00] first year. A place called Cranbourne Barracks - was not nearly as grand as it sounds.

And we moved up and up. So eventually we lived in quite a decent place called Maple Rain. That's where I went to high school.

Colin: Happy memories. 

Clive: Yes. Yes. I should mention that I was suffering from malnutrition. Partly I think, because I wouldn't eat the food such as it was in England during the war. And when I went to Southern Rhodesia, other there's plenty of food, I couldn't bring myself to eat it.

And I was classified as malnourished. And I think even my best friends today would not describe me as malnourished.

Colin: I would concur with that. So, you're there and you go through high school. Life is getting better and better. I'm interested. What made you study law and obviously you went to Cape Town and South Africa to study. Well, tell me a little bit about that. 

Clive: Well, why did I study law? Well, first of all, Jewish mothers wanted their sons to be either doctors or lawyers and the definition of a lawyer. Was a Jewish boy who couldn't stand the sight of blood.[00:03:00] And that's almost true. They wanted me to become a lawyer. And at 16, I left school to become what was called an Articled Clerk

and that was for about three or four years. And my boss there told my dad, listen, Clive will never make a decent lawyer. So put him in the civil service or something like that. So I worked in the civil service for a year. And by then, my parents could afford to send me to university.

And there wasn't a university that was teaching law at that stage in Southern Rhodesia. So I went to Cape town where most of my friends had been and loved it 

Colin: Yep. Great place 

Clive: The five years I was there was marvellous.

Colin: And you studied law at Cape Town University. And then you went back to join the Rhodesian bar in 1967. 

Clive: Well I went back in 1966 and I had to do an exam and eventually got admitted in 67 

Colin: So tell me a little bit about your memories at the Bar in Rhodesia, the type of work you were doing in those early days. 

Clive: Well, the early days I was [00:04:00] prosecuting, first of all in the magistrates' court and eventually into the Attorney General's office there. Once I got admitted as a barrister and it was Roman-Dutch law, but ultimately it didn't matter except for the laws themselves from English common law. Law of Contract of tort succession were much the same. Criminal law where you prosecute the criminals.

But I don't ever recall doing a fraud or money laundering or anything like that. Mostly it was murder terrorism or in the lower courts. Jaywalking, reckless, driving that kind of thing. But the major difference between practicing law there and here is that

a lot of the law was affected by witchcraft 

Colin: That sounds intriguing. Tell me a little bit more. I want to learn about this. 

Clive: Well witchcraft. Some people have described it as Feng Shui, but much more dangerous, before the white man went to Central Africa which is [00:05:00] male and female cause who has no gender discrimination between them. Probably the leading personnel in any particular area. When the whites came, they passed what they called the witchcraft suppression act. Which had no effect at all and it's still in practice. The only thing where it was very useful was this, that if a person committed murder, there was the death penalty, but you could argue extenuating circumstances, which meant for instance person was badly provoked.

Or it was not quite self-defence. And also if there was a genuine belief in witchcraft and I'll give you a couple of examples. 

Colin: Yes, please. 

Clive: Well, the first one was, a bolt of lightning came down in a remote village. And hit a cow, and killed it. And the owner of the cow wanted to know why his cow had been selected.

So they went to the local witch doctor who through the bones and the rest of it and turned around, pointed to a hut where there was an [00:06:00] elderly widow and said it was her. She was the witch. She did it.

The men in the village beat her death, and they went off to the police station said oh look we've just done a good thing. We've killed a witch. And of course, they're all prosecuted for murder. And that was obviously a genuine belief in witchcraft. A genuine belief that they did the right thing. And that though he gets sentenced to life.

They usually got let out in a couple of few years, 

I said as a deputy judge for a while and one that where I was the judge was A wealthy African man, very intelligent. His son appeared to be dying of some disease. And he went to the witch doctor. and the witch doctor sits him after he's examined the boy said what you've got to do is to feed him the lungs of a person from a particular tribe. So he went out with a chopper, killed the man, cut out his lungs, fed them to the boy and then gave himself up. And he said I did what I had to do for my boy. His boy survived by the way. And I sentenced him [00:07:00] to life imprisonment and he had got out in a few 

Colin: Amazing. Okay. I wanted to talk a little bit now about the transition, from Rhodesia to Zimbabwe and how that affected you. Tell me a little bit about that difficulties, work, your views, your take on it. 

Clive: Well, I'll tell you every white person there a few years previously. over the age of 18 had to do national service. And I did national service the few years before I went to university, used to go for weekend training and camps and all the rest. I was a pretty rotten soldier. Let me say that immediately.

Then once the terrorist war got really started, we were called up more and more. I joined. Brigades intelligence section, I was made a Sergeant. And shortly after that, I was made an officer, a second lift tenant. And then ultimately I reached the rank of captain, which is what I retired on. And the work once I was in intelligence, differed from time to time. I started off by going to lectures on [00:08:00] interrogation and I became an interrogator and I used to lecture myself on interrogation and basically, the argument was, look, we are the good guys. We don't do what they do. What the terrorists used to do was to go into the village with a big pair of shears and cut off the lips of a person at random as a warning. Don't talk to them. army, I said, look, we're the good guys. We don't do bad things.

The art to interrogation at that stage was to pretend that you knew the answer to everything. And anytime you'd ask a question, they'd give an answer and say, oh yes, we know that, but what about this or that? And pretend all the way along that you knew everything. And that was quite effective.

Then I went into what we called counter-intelligence which basically was working out if anybody was sending intelligence to the enemy or to England for that matter. Also, it was quite important as far as morale was concerned, and would you like me to tell you a story about morale?

Colin: Well, [00:09:00] don't think I can stop you, but by all means do tell us 

Clive: there's a river there called the Sabi river remote area near Mozambique and African soldiers were being trained in the village. Near that river and the person running, it was a Sergeant major, a white Sergeant major. And he was the kind of typical, almost cartoon Sergeant major.

He had a bristly moustache, ferocious eyes, he was a Martinet. He was so strict with them. Really was very strict indeed. And one night. A few soldiers after they'd finished, went for a stroll by the river and they saw the Sergeant major dangling from a tree not by his neck, my arms and moaning.

..Oh nobody helped me. Will nobody remove me, look at what pain I'm in. So they're rushed to help him. And he said in his strict way get away from me. It will be in charge if you don't get away, move away. So they went away and he said, oh, look poor me.

Everybody hates me. What do they hate me? [00:10:00] Anyway, cut a long story short. He was a psychic sadomasochist.

Colin: Anyway. So you're in Zimbabwe, the lure of Hong Kong, what took you here? 

Clive: Well, we belonged to an organization, which a bit like rotary and lions called round table didn't seem to exist much anymore. And we came here to a world's conference in Hong Kong in 1975. And we absolutely fell in love with the place we really did. It was a time when you went around on rickshaws. One of my abiding memories is walking down Queens Road East and all you could hear was the clatter of Mahjong tiles. And people were cooking food at the side of the road, things like that. And we loved it and we really wanted to come back. We knew we could see Rhodesia was coming to an end.

But you weren't allowed to take any money out and I had no money anywhere. So I couldn't leave. I had a South African Roman-Dutch law degree. I couldn't go to England or anywhere because I had no money. [00:11:00] I was asked to be an acting judge.

For a while, which I was, then I was offered a full judgeship, which I really didn't want. But there's a lot of pressure on me because I was the first white person and Jewish person to be offered it. And, they were frightened. If I turned it down, it would be a white person being disrespectful to Mugabe.

And then one day in the mess. The barristers, we called them advocates there. Frank Stock turned up, and I didn't know Frank, but I knew his older brother. And Frank was then working in Hong Kong and he'd come to see his brother and we got chatting and I was telling him how much I liked Hong Kong.

And asked him was any possibility of getting a job there. Unbeknownst to me, Frank was actually recruiting at the time. And to cut a very long story short. He recruited me and Bernard Whaley 

Colin: Yes, 

Clive: and I mentioned it to Mike, Mike Hartman. Who's I think already told you that the problems he had and eventually we came all within a few weeks of each other. 

Colin: Arriving in Hong Kong.

Clive: Arriving in Hong Kong.

Colin: [00:12:00] So you came here and you joined the legal department, where you remained for 11 years and you rose up the ranks to become deputy director of public prosecutions. You then ran the commercial crimes bureau. Some insight into those early days of working in Hong Kong.

Did you enjoy it? Were you happy here? 

Clive: I enjoyed it enormously. We enjoyed Hong Kong. We loved Hong Kong. Our children loved it. They had to get used to not being accompanied to school every day because there were bullets on the side of the road and things like that. And taxes were very low. We couldn't believe it. Everything was low.

Clearly my salary, I must say, but we were treated extremely well. And I met people from all over the world for a change. In the department of justice or the Attorney General's office. As it was called. I met a guy from Australia, from New Zealand, from Ireland. These places I've never met anybody like that before, but all good people.

We had a tremendous time. I was very lucky that early on the Carrian case started.

Colin: Yes, so that's where we [00:13:00] first crossed the few swords. I recollect. 

Clive: We did, I remember that. Yes, we're still friends though. 

Colin: Exactly. 

Clive: And I was one of the junior council and I was surprised that I was in it because as I say, I knew nothing about fraud money laundering, that kind of thing. I knew about terrorism and Jaywalking and stuff, but fraud - it wasn't me. Anyway, they put me on it and without going into too much detail about the Carrian case, if you want to, there's a lot of books on it, but the defendants decide.

They were going to admit nothing. And there was something like 200,000 documents we had to put in and I did the committal. That took six months. For me, it was simply a question of calling dozens of witnesses and saying, is this your signature whose signature, et cetera, et cetera.

And then when we went to the high court, The case lasted about, I don't know, 18 months or something. A lot of it was a question of accounting practice and stuff like that and where the money came from, et cetera, et cetera. And [00:14:00] eventually our case was thrown out by judge Barker.

Colin: There was a court of appeal judge at that time, but went down to sit in the jury trial. Because my role was interesting I was acting for Lorraine Osman and the Bumiputra, which was running in conjunction.

Around that time he got the extradition proceedings. The longest ever extradition in London, which I was involved in. And then you moved yourself into the Osman case as you sort of rose up the ranks. 

And we had a few charming run-ins occasionally. Especially when he came back a few bail applications, it was sort of crossing the swords and all the rest, which was, they bring back great memories, but.

You worked there for 11 years, prosecuting doing more and more cases. Then you became one of the first Queens Council at that time, which is, leading counsel, but now called senior counsel. And then you decided to go into private practice. 

Clive: Well, can I just tell you what's happened when I, took silk as we call it. I applied for silk and got it. But when the names were announced, I was actually in Las Vegas [00:15:00] at a conference and nothing came through. And so I assumed I hadn't bought it, flew back to Hong Kong the next day and no litter on my desk, but now we're so late.

Taylor phoned me and said when you come in to get your Silk gown? I said, well, I haven't been awarded. So she said, oh yes, you have to come in, two o'clock. An hour later. I got the letter. So he knew before I did, but also made a rather foolish comment. the south China morning post phoned me and said, congratulations, anything you'd like to say?

So I said, well pleased that her majesty has forgiven me having been a rebel against her. So it's in the Rhodesian army. I'm very grateful for this. Anyway, it was a stupid thing to say, but they printed it the next day. And I got a call from the Attorney General Jeremy Matthews who called me up to his office and said Chris Patton is absolutely furious about what you said, and he's told me to give you a good bollocking.

Okay. You've had it now that we both finished laughing, he thought it was a joke also.

Colin: But at that stage, Bernard Whaley, who I know very well, Frank [00:16:00] stock, I knew very well. Mike Hartman, all of them transpose themselves Into the district court. And you told us earlier on, you sat as a deputy judge and you were offered a judgeship in Zimbabwe at that time. What made you go to the private bar, didn't you want to think about the judiciary. 

Clive: I'll tell you what happened. I applied for the district court and this was at the time of the Warwick Reid fiasco. Now Warwick Reid was head of commercial crime and eventually got seven years for corruption, Jeremy Matthews called me in one day.

And he said, look, I see you've applied to the district court. You'll get the position, but I'm also offering you the position of head of commercial crime, which carries with it, the title of assistant to DPP. So I decided to take the commercial crime matter. I didn't really fence the idea of being a judge.

I'm not very good at writing fiction.

Colin: That's a nice one. I enjoyed that and that's on the record. 

Clive: Anyway. And that was a good decision for me. I became head of [00:17:00] commercial crime, travelled an awful lot in those days. Obviously, if you wanted evidence from overseas, you went overseas and got it. I went to conferences all over the world and I really enjoyed it. This was about 1994, I think. And 97 was 1997.

The end of British rule was in sight and it was clear because it was made clear to everybody in the civil service that in future, it was going to be more Chinese oriented. And the DPP at the time, John Wood sits me, look, you are next in line to be DPP, but for the handover, we want a Chinese person, which I well understood.

Of course. And I helped him find Peter Nguyen, who was the first DPP after... 

Colin: Who then became a high court judge? 

Clive: Yes, that's right. Yes, And. I decided to have a go at the bar. 

Colin: Very successful go, wasn't it? 

Clive: It was a very lucky go. if I was known, I was known as a criminal [00:18:00] barrister, but the first case I got was a civil one and that was by luck.

Because it was a shipping case, I'm not going to mention the parties. And the company I represented was from Denmark and they'd obtained the services of a very well-known judge from England who was in Chancery, and in Chancery, we don't do cross-examination and most of this is going to be cross-examination.

Can we have an English silk to be my junior? Went to the courts. The court said, no, there's plenty of Hong Kong silks who can cross-examine. Look at Grossman. He's just finished in the Attorney General's office, he mentioned me by accident. So I got the position that was 18 months.

Case 

Colin: Yeah, I think I know that case you're talking about quite a well-known, company with a Wheelock Marden? That it? 

Clive: ADC vs Wheelock Marden 

Colin: Yeah. I got a good memory Haven't I?. 

Clive: Yes. And thereafter I started doing a variety of cases, I think probably about 60% crime, but over the years, different kinds.

Colin: How much prosecuting did he do at [00:19:00] that time when you were at the bar?

Clive: Prosecuting, none. 

Colin: That's interesting. because a lot of the people who left another department of justice Attorney General's chambers do prosecuting. 

Clive: No, I was never invited to

Colin: well, tell me a little bit about that. I didn't let me sort of remind you, not too long ago, you were involved in Fiji, the former prime minister Mahendra Chaudhry who was charged with fraud and you acted as the state prosecutor, how did he come to be involved in that? 

Clive: Well, what happened there? It was in the solicitor general who then became DPP in Fiji, a man called Christopher pride. And for the big cases, he tended to get people from Hong Kong if he could. And what happened was they had lots of coups in those days. And usually found somebody who had their fingers in the till. And I was called in to deal with some of those matters. There were other people too, but It's a beautiful place and stuff.

Colin: Yeah. I've got friends of mine who worked in Fiji and enjoyed themselves there You've had a very, very successful [00:20:00] career at the bar. That's one case in which I instructed you so we were fighting hammer and tooth. In this case, we got together and were part of the team but the interesting thing about that case, we had Edward Fitzgerald from London QC, who has a remarkable reputation and to get him admitted, we had to get a local junior silk. That's local silk to be junior to him. And you took up that task. How did you enjoy that? We worked for nearly 12 months together on that case, we had other juniors below you as well, we all know Ed that's been remarkable. 

Clive: Ed's a very good man. Very nice man. He concentrates exactly on what he's saying, what he's doing, but never could find anything, his passport, his notes or anything like that. Having said all which he did a remarkable job, and he's a fine man.

Colin: Yeah. One of the great advocates as well sort of coming now to Hong Kong where we are right now, there's a big elephant in this room at the moment now. And I want to [00:21:00] be talking about national security law in which you have had a considerable amount of firsthand experience on a recent case. But when obviously we're not going to go anywhere near that case.

So that case is on appeal. It will be totally inappropriate to do so, but generally speaking, there are issues there. And assessing, I want to ask you, is that in all your time at the bar The headlines of that case is that there were three judges who then became judge and jury rather like the district courts.

And, there were applications taken to challenge that as being matters. But I wanna ask you in general terms about how you felt about that and did that cause you difficulties had to change your style and making final speeches to the three judges and I think people would be quite interested in the overall picture without touching anything on the case, obviously. 

Clive: It was different in the sense that I'm not addressing a jury and I'm not addressing a single judge somehow had to mix or meld. I would say those two different areas. The judges, let me say immediately were extremely polite all the way through the trial. But I did [00:22:00] find sometimes wondering to myself as I was talking, hang on, am I talking to a judge or a jury?

Because the way you address it is completely different. I wouldn't say that was an ultimate problem. It wasn't, but it was a difficult thing to, get to grips with at the time.

Colin: And I think other people would be interested, People are talking about judicial independence rule of law of that being threatened. The good news is we've had two Supreme court judges, Lord Reed, and Lord Patrick Hodge have agreed to participate indeed, one of them did yesterday by way of remote hearing, as well.

How do you feel about the rule of law, the fundamental cornerstone of our system and judicial independence? And being at the coalface on that case, what's your feelings now about this difficult question? 

Clive: Well, let me put it this way. I've always believed that we have judges with different standards, of course, but you're honest. And I don't think that because they're picked for a, given a title of an NSL [00:23:00] judge, that this honesty will be diminished. The real problem with it is that

what is diminished? is the idea of a completely independent judiciary. Cause people say if all the judges are the same, they're all honest, legit, what do you need to pick special judges for, to do NSL cases? Obviously the public and let me say some overseas judges have said, oh, well, the rule of law is in tatters in Hong Kong.

I don't believe that is so, and I'm very happy indeed, that those two judges that you've mentioned have said they will still come to Hong Kong after all they sit in the court of final appeal. If they think that judgment is wrong. Either in Law or in fact, they will say so. 

Colin: Yes. And indeed, on a recent NSL case, it did go to the court of final appeal.

on the interpretation bail. It was Frank stock. I remember he sat on that one they gave a very considered ruling, which just comes to the conclusion that. 

to get bail. You got to [00:24:00] really work for it. now. 

Clive: No, that's right. I'm so glad that he did. It gives a good name to the court of final appeal. Yes. 

Colin: Yeah. Let me ask you this. You and I have been here slightly longer, than you, I arrived in 81. You arrived in 83. 

Your home Is this the place I put this to Michael Hartman? I said, are you leaving? Ketty, your wonderful wife. I know her very well. The most magnificent French interpreter in the magistrates' district court. She's the best of the best

And I know she loves Hong Kong in you.

Clive: Hong Kong is home for us. Ngo dei hai Heung Gong yan, as we say, we are Hong Kong people. This is where we intend to stay. Great magnet in England, where our children and grandchildren are, but this is where we're happy. Things are happening. Politically we're not always happy with it, but in any country in which you live. 

That's going to happen, I think, but we go out a lot now and the restaurants are full. We go to operas and things, and they're always full. You walked through Causeway Bay as I do sometimes on a Sunday, it's packed. Everybody can [00:25:00] now, feels free to walk and talk to do what they want. And that's it.

We feel free. 

Colin: On a Saturday, you can read every single newspaper you want to read from the financial times for times. 

Clive: Absolutely, absolutely. 

Colin: And On a sort of lighter note. I understand you've added a further string to your bow Clive. You're a best selling author and you published your autobiography. And must read this as a plug, everyone from Hackney to Hong Kong, the story of a lucky man, what made you do this? And so you're going to write novels now. 

Clive: No, I'm not good at fiction. Over the years I've been boring people with my anecdotes and things like that. And somebody had suggested to me that I should put them in a book.

So the book is anecdotes of my life, basically, including funny things that have happened in court. And funny things happened to me in the army and things like witchcraft and cannibalism and that kind of thing. so I started doing it's really. As a pastime, I used to dictate it to my secretary. And [00:26:00] eventually it was a book and Simon Young from the university very kind enough to say, yes, we think you should do it. And we'll publish it. 

Colin: And it's been sold out. I think it's very difficult to get.

Clive: Yeah. Well, they thought the only people who would read it would be lawyers, but it's on Kindle and people overseas are emailing me. And mostly saying, hang on, you got this wrong or you got that wrong, but that's beside the point. And there is still another +launch to come. 

Colin: Exactly exactly. Your 81, I'm a great believer. I remember a great lecture I had at Cambridge university when professor Perry said, no matter how bad the defendant is, no matter how terrible, no matter what they've done. the rule of law depends on that person being properly defended and his quarter forth, and the prosecution forced to prove their case.

Now I believe that, I hope you're going to continue and take up the mantle and, in the true tradition of the cab rank rule of the bar, 

Clive: Well, I believe him. I've acted for murders, for terrorists, for estate agents, and people like that.[00:27:00] But coming to the stage where I think People who've got perhaps more energy than I have, should be doing it, but I am still working quite hard at the moment. 

Colin: Clive, it's a privilege. A great honour to be chatting with you. I thank you so much for taking time off to join us. Keep fighting the good fight And as ed Fitzgerald would say in his inevitable way. No surrender CLI Thank you. from Law and More, Bose Cohen and Collins. 

Clive: Thank you very much.