Jimmy Lai’s conviction is unjust, says former Hong Kong governor Chris Patten

Hong Kong’s top court upholds British media mogul’s conviction for role in 2019 anti-government protests

The conviction of media mogul Jimmy Lai and six other people for their role in the 2019 anti-government protests is "unjust" and underlines the “rapidly deteriorating state of the rule of law” in Hong Kong, former governor Chris Patten said.

Mr Lai, Democratic Party founding chairman Martin Lee, and five former lawmakers were found guilty in 2021 of organising and participating in an unauthorised rally in August 2019 that reportedly drew nearly a fourth of the city’s 7.3 million population.

The Court of Final Appeal upheld the conviction on Monday.

Mr Lai, 76, a British citizen who founded the now-shuttered Apple Daily newspaper, is facing the prospect of life in jail if found guilty of sedition and collusion with foreign powers under the national security law. He has been held in solitary confinement since December 2020.

Lord Patten, the last British governor of Hong Kong, told The Guardian the "unjust verdict" against Mr Lai and his fellow accused was made worse "by the fact that Lord Neuberger, a former head of Britain’s Supreme Court, was a party to this decision".

“This is particularly surprising since when he was a member of the judiciary in Britain, Lord Neuberger was keen to establish that the English common law could accommodate fundamental aspects of human rights protection,” he said.

David Neuberger was one of five judges on the Court of Final Appeal that heard the matter, renewing the debate about whether foreign judges should continue to sit on Hong Kong’s highest court amid a national security crackdown.

The appeal of Mr Lai and the other accused centred on whether their conviction was proportionate to the fundamental human rights protections set out in a pair of non-binding decisions by Britain’s supreme court known as "operational proportionality”.

"He was also always keen that judges should be keen to explain their reasoning. In this case, perhaps some of his views on the law changed between the first-class waiting room at Heathrow and the arrival terminal of Hong Kong international airport," Lord Patten said, referring to Lord Neuberger.

The judgment upholding the conviction of Mr Lai and the other accused came nearly two months after the resignation of two British judges from the Court of Final Appeal, Lawrence Collins and Jonathan Sumption.

Mr Sumption said at the time that Hong Kong was becoming a totalitarian state and its rule of law had been “profoundly compromised”.

Mr Neuberger told Reuters in mid-June he would remain on Hong Kong’s highest court “to support the rule of law in Hong Kong, as best I can”.

China has allowed non-permanent foreign judges to sit on the Court of Final Appeal even after it took the then British colony back in 1997 to enable continuity with British common law tradition, provide expertise to local lawyers and reassure businesses and financial markets.

Nearly half of foreign judges in Hong Kong have stepped down since China enacted the national security law in the wake of the 2019 protests. The overseas judges are reportedly paid about £40,000 per visit to the city.