NGOs Urge UK Judge to Quit Hong Kong’s Top Court After Upholding Convictions of Jimmy Lai, 6 Others

Court of Final Appeal in Hong Kong on Nov. 22, 2023. Adrian Yu/The Epoch Times

British judge Lord David Neuberger is facing pressure from rights groups to step down from Hong Kong’s top court after upholding the convictions of British citizen Jimmy Lai and six others over their roles in the 2019 pro-democracy protests in the city.

In a letter published on Monday, 45 nongovernmental organizations (NGOs) from around the world criticized Neuberger, saying the judge had not been “eager to provide any dissenting opinion to emphasise the importance of free peaceful assembly and free speech in Hong Kong,” and urged him to “seriously reconsider” his position on the Hong Kong Court of Final Appeal (HKCFA).

Since Beijing imposed the national security law on Hong Kong in 2020, several foreign non-permanent judges have resigned. Some of them cited the draconian law as the reason.

Neuberger came under criticisms, including by Hong Kong’s last British governor, Lord Chris Patten, after HKCFA rejected a bid to overturn the convictions of seven prominent pro-democracy activists, including Lai, on Aug. 12.

Lai, 76, founder of the now-defunct liberal newspaper Apple Daily; Martin Lee, 86, founding chairman of Hong Kong’s Democratic Party; and five other activists were convicted in 2021 for their roles in an “unlawful” assembly in August 2019, when nearly 2 million people rallied on the streets.

Last year, a lower court overturned its convictions for organizing the rally while upholding the convictions for participating in it.

The defendants had argued that the trial judge should have conducted an “operational proportionality” assessment to determine whether their conviction was proportionate to human rights protections.

That principle is set in two nonbinding decisions of Britain’s Supreme Court. The defendants also argued that the judge should have taken into account that “the procession did not descend into violence.”

However, on Aug. 12, a panel of five judges ruled against the defendants, with Chief Justice Andrew Cheung and Judge Roberto Ribeiro saying the British court’s decisions shouldn’t be followed in Hong Kong because of differing legal frameworks in the two jurisdictions.

In a joint letter to Neuberger, the NGOs said the seven individuals “would not be found guilty under other common law systems, including in Britain, for partaking in their right to assembly during a peaceful march in 2019.”

“This is a right guaranteed under Hong Kong’s Basic Law, and Hong Kong’s obligations under international law,” the letter reads.

The NGOs said Neuberger’s continued involvement in HKCFA is “in effect sponsoring a systematic repression of human rights against peaceful activists and journalists in the city” and “further tarnishing the reputation of the British judiciary,” urging him to quit as some of his former colleagues did.

Neuberger didn’t respond to The Epoch Times’ request for comment.

Jimmy Lai outside West Kowloon Magistrates' Court in Hong Kong on Sept. 18, 2020. Sung Pi-lung/The Epoch Times

On Aug. 14, Neuberger issued a statement saying he was resigning as chair of the High Level Panel of Legal Experts on Media Freedom because of criticisms over his role with HKCFA.

“I have now concluded that I should go now, because it is undesirable that focus on my position as a non-permanent Judge in Hong Kong should take away, or distract, from the critical and impactful work of the High Level Panel,” he said.

Hong Kong, a former British colony, is a common law jurisdiction, unlike mainland China. After it returned to Chinese rule in 1997, non-permanent overseas judges have consistently served on the city’s top court.

Foreign Judges Who Stepped Down

However, a number of foreign judges have quit their roles since Beijing’s rubber-stamp legislature imposed a national security law on Hong Kong four years ago that has suppressed public dissent.

Australia’s James Spigelman stepped down in September 2020, less than three months after the law took effect.

In 2021, Baroness Brenda Hale became the first British judge to leave the court since the national security law took effect, although she cited COVID-19 travel restrictions as the main reason.

In 2022, Lord Robert Reed and Lord Patrick Hodge, the president and deputy president of the UK Supreme Court, respectively, withdrew from HKCFA following discussions with the UK government.

Citing concerns over the national security law, Reed said in a statement at the time that he and Hodge had resigned because UK Supreme Court judges could not “continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the justices of the Supreme Court are deeply committed.”

In June this year, two more British judges—Lord Jonathan Sumption and Lord Lawrence Collins—also resigned shortly after 14 pro-democracy legislators and activists were convicted under Hong Kong’s own version of the national security law, the Safeguarding National Security Ordinance, which passed in March.

Sumption said in a statement at the time that it was “no longer realistic” for foreign judges to help sustain the rule of law in Hong Kong.

Their resignation was immediately followed by the retirement of Canada’s former Chief Justice Beverley McLachlin from the Hong Kong court.

Aldgra Fredly contributed to this report.