How can the British judge who upheld Jimmy Lai’s conviction sleep at night?

The British judge who upheld the ruling, Lord David Neuberger, has left in tatters any last shreds of credibility to Hong Kong’s reputation for the rule of law and judicial independence, writes Benedict Rogers

Hong Kong media tycoon Jimmy Lai was jailed for taking part in a pro-democracy rally (AP)

Jimmy Lai, together with his friends in Hong Kong, ranks alongside the world’s greatest dissidents and champions of freedom.

Lai along with Martin Lee, the father of Hong Kong’s democracy movement, lawyers Margaret Ng and Albert Ho, trade unionist Lee Cheuk-yan, social activist Leung Kwok-hung, and pro-democracy politician Cyd Ho and others have been key figures in Hong Kong’s fight for freedom.

In time, history will list them in the same breath as Nelson Mandela, Martin Luther King Jr, Vaclav Havel, Lech Walesa, Andrei Sakharov, Aleksandr Solzhenitsyn, Natan Sharansky, or Mahatma Gandhi, both in terms of their inspiring courage and commitment – and in terms of the absurd injustice with which they have been afflicted.

The decision by Hong Kong’s Court of Appeal to reject an appeal by these seven courageous Hong Kong pro-democracy leaders against a conviction for taking part in a peaceful protest in 2019 is – as the last British governor of Hong Kong Lord Chris Patten rightly said – “unjust”.

It was a protest in which 1.7 million Hong Kongers – about a quarter of the city’s population – participated in a series of peaceful demonstrations that swept Hong Kong in 2019 against a proposed law that would allow for extradition from Hong Kong into mainland China. This was in total breach of Hong Kong’s promised autonomy and freedom.

That a British judge, Lord David Neuberger, one of the few remaining retired foreign judges still sitting in Hong Kong’s courts, sat on the panel that upheld the conviction brings shame to Lord Neuberger and Britain. It gives the lie to the idea that foreign judges can exercise some restraining influence by continuing to sit in Hong Kong’s courts.

Even more shocking is that Lord Neuberger, in the written judgment, said the chief justices had “fully and impressively” considered questions regarding whether the conviction was proportionate to the defendants’ fundamental human rights, enshrined in Hong Kong’s bill of rights – including freedom of expression and freedom of assembly.

Lord Neuberger is the chair of a legal advisory panel to the Media Freedom Coalition and a trustee of Prisoners Abroad, a charity that advocates for British prisoners overseas. One wonders how he can sleep at night, in the knowledge that he has helped ensure that Lai, a British citizen and peaceful non-violent newspaper publisher, spends even longer in jail than he might have done, thanks to a judgment that he was a willing party to.

Lord Patten, a patron of Hong Kong Watch, said the verdict “reveals the rapidly deteriorating state of the rule of law in Hong Kong”.

He said: “This unjust verdict is 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 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.”

Several overseas non-permanent judges have resigned from the Hong Kong bench, including Lord Neuberger’s British colleagues Lord Jonathan Sumption and Lord Lawrence Collins, and a Canadian judge, Beverley McLachlin.

Lord Sumption said at the time that Hong Kong was “slowly becoming a totalitarian state” and that “the rule of law is profoundly compromised”. He said it was “no longer realistic” to think that the presence of overseas judges could help to sustain the rule of law in Hong Kong.

One wonders why Lord Neuberger did not also resign.

One additional observation. During the passage of the new domestic Article 23 security legislation earlier this year, the Hong Kong authorities went to great lengths to justify the new law by providing – often spurious or misleading – references to precedents in the United Kingdom’s common law.

Yet in contrast, the judgment in this case decrees that precedents set in UK courts are not relevant to Hong Kong. How convenient. One would normally say you cannot have it both ways – but seemingly, if you’re the Chinese Communist Party and you control the legislative procedure, you can.

Where does this judgment leave us?

It leaves in tatters any last shreds of credibility to Hong Kong’s reputation for the rule of law and judicial independence.

For Lord Neuberger, surely it leaves a stain on his conscience for upholding the convictions of good men and women who merit honours, awards, respect, and recognition, not criminal convictions.

In particular, Lord Neuberger now has on his record the act of upholding the convictions of a 76-year-old British citizen for acts of peaceful protest.

He has contributed to the incarceration of a courageous non-violent newspaper publisher, whose only “crime” was to speak his mind – in print, in peaceful protest, and in prayer.

For as long as he lives, I hope Lord Neuberger will not rest in peace. And I hope he is called upon to answer for his actions, in the House of Lords, to the British judiciary, and in the court of public opinion.

For Lai, of course, this is just one short chapter in an entire book of persecution.

He has already spent more than three and a half years in prison, on multiple fabricated charges, and his most significant trial, under the draconian National Security Law, is unlikely to conclude until towards the end of the year.

Unless there is a significant, perhaps miraculous, intervention, he is likely to spend the rest of his life behind bars.

But none of this is an excuse for defeatism. Those of us who recognise this injustice must not give up. We must continue to campaign, advocate, pray, and chant – at every single opportunity available – #FreeJimmyLai.

And free all other political prisoners in Hong Kong too.

A version of this article was originally published by UCANews