A senior British judge on Monday (June 24) heard a protest-related case in Hong Kong involving seven high-profile democrats, fuelling a row over whether foreign judges should continue to sit on the city’s highest court amid a national security crackdown.
David Neuberger, a former head of Britain’s Supreme Court, was one of a panel of five judges on Hong Kong’s Court of Final Appeal (CFA) to hear an appeal for an unauthorized assembly case involving seven prominent democrats including barrister Martin Lee (李柱銘) and media tycoon Jimmy Lai (黎智英).
The hearing comes just weeks after the resignations of two British judges from the CFA, Lawrence Collins and Jonathan Sumption. Sumption explained his resignation by saying Hong Kong was becoming a totalitarian state and the city’s rule of law had been “profoundly compromised.”
The appeal centered on whether the court should follow two non-binding decisions of Britain’s Supreme Court to apply the principle of “operational proportionality” — whether a conviction is proportionate to fundamental human rights protections.
Neuberger at one point asked a defense lawyer to clarify his views on proportionality and whether the defendants had a “reasonable excuse” to participate in what was a peaceful procession away from a downtown park after a protest in August 2019.
Other defense lawyers argued the police had taken no action on the day, the seven had caused no disruptions and had been singled out amongst thousands of other protesters.
“These are protected rights and the court is bound to protect those rights,” argued one defense lawyer, Robert Pang (彭耀鴻).
Hong Kong’s mini-constitution, the Basic Law, guarantees the right of public assembly, as does its Bill of Rights.
The case comes amid a years-long national security crackdown in Hong Kong following mass pro-democracy protests in 2019, where opposition democrats have been jailed, and liberal civil society and media outlets shut down.
Some lawyers and diplomats say the foreign jurists on Hong Kong’s top court lend credibility to the city’s rule of law at a time when critics including the U.S. government say national security laws have been used to silence dissent.
One of the defendants in this case, 86-year-old Martin Lee, helped launch Hong Kong’s Democratic Party in the 1990s and is a veteran pro-democracy figure. Jimmy Lai, 76, is in prison and facing national security charges for colluding with foreign forces that could see him jailed for life.
Lee was earlier given an 11-month suspended sentence.
Other defendants presented in the court included two former Alliance leaders Albert Ho (何俊仁), 72 and Lee Cheuk Yan (李卓人), 67. They were arrested and charged in another national security case and have been remanded in custody since 2021.
Neuberger earlier told Reuters he said he would remain on Hong Kong’s highest court to “to support the rule of law in Hong Kong, as best I can.”
The case resumes later on Monday.
Leave a Reply