Top British judge hearing case related to protest crackdown in Hong Kong

This comes weeks after two British judges resigned

A senior British judge heard a protest-related case in Hong Kong involving seven high-profile democrats on Monday, just weeks after two judges resigned citing the “profoundly compromised” rule of law in Hong Kong.

David Neuberger, a former head of Britain’s Supreme Court, was part of a five-judge panel on Hong Kong’s Court of Final Appeal reviewing an unauthorised assembly case.

The defendants in this case include 86-year-old Martin Lee, a veteran pro-democracy figure who co-founded Hong Kong’s Democratic Party in the 1990s, and Jimmy Lai, 76, currently imprisoned and facing potential life imprisonment on national security charges. The seven were arrested nearly eight months after a peaceful procession from a downtown park after a protest in August 2019.

Mr Lee previously received an 11-month suspended sentence. Other defendants are former Alliance leaders Albert Ho, 72, and Lee Cheuk Yan, 67, both arrested and charged in another national security case and in custody since 2021.

On Monday, the appeal focused on whether the court should adopt two non-binding decisions from Britain’s Supreme Court, which apply the principle of “operational proportionality”, assessing if a conviction aligns with fundamental human rights protections.

Judge Neuberger questioned the defence on this principle and the justification for participating in a peaceful protest in August 2019.

The case unfolded amidst a prolonged national security crackdown following the 2019 pro-democracy protests, which has seen opposition figures jailed and media outlets shut down.

Over 1,800 political prisoners have been detained in Hong Kong amid a crackdown on dissent following the mass pro-democracy protests of 2019. This crackdown has intensified since the pro-Beijing legislature passed a national security law in 2020, although British judges are not permitted to rule on national security cases.

This comes after two British judges, Lawrence Collins, 83, and Jonathan Sumption, 75, resigned citing concerns over Hong Kong’s shift towards totalitarianism and “profoundly compromised” rule of law. Mr Sumption and Mr Collins were two of five judges – all of whom retired from their British roles – listed as overseas non-permanent judges for the Court of Final Appeal, who could be selected at any time to sit on cases.

Earlier this month, Mr Neuberger said at a conference in London that he was going to remain on the Hong Kong Court of Final Appeal. According to The Law Society Gazette, he said: “My feeling is that so long as I can do good by being there and so long as I think that I might cause harm by leaving, I want to stay and support my judicial colleagues in Hong Kong and support the rule of law as long as I can.”

Speaking about the resignation of his two former colleagues – Mr Collins and Mr Sumption – he said: “It’s a matter of individual assessment as to when the water gets too hot.” He added that he was aware of the proverbial “boiling frog syndrome” which refers to a frog in a pot of slowly heating water which ends up boiling to death because it won’t or can’t jump out.

Meanwhile, critics argue that Hong Kong’s rule of law has been severely undermined by the security laws and that the presence of foreign judges risks lending an air of legitimacy to the Beijing regime. Human rights groups have criticised Western judges for continuing to serve on Hong Kong’s top court, which still includes justices from the UK, Canada and Australia.

The scales of justice are seen on top of the Court of Final Appeal in Hong Kong on 24 June 2024 (AFP via Getty Images)

The Committee for Freedom in Hong Kong Foundation has previously accused the Western judges of lending “their prestige to a justice system that has been undermined and co-opted by Beijing”.

Mark Sabah, the director of the Committee for Freedom in Hong Kong Foundation earlier this month told The Guardian that Mr Neuberger’s presence on the Hong Kong bench was “astonishing”.

“If he had any shred of credibility left … he would immediately resign,” he said.

International law expert and barrister Sir Geoffrey Nice earlier told The Independent: “I see absolutely no reason the judges should be there ... The Hong Kong game has been lost and it is being drawn back to China.”

After the resignation of Mr Sumption and Mr Collins, Hong Kong’s top bench now retains only three British judges: Lennie Hoffmann, David Neuberger, and Nicholas Phillips, all of whom are members of the House of Lords. While the British judges cannot rule on national security law cases, Mr Hoffmann and Mr Sumption have previously overseen cases involving convictions of activists critical of Beijing.