Gov’t slams ‘slandering’ by Hong Kong ex-governor who urged British judge on Jimmy Lai appeal panel to step down
Hong Kong Free Press
The Hong Kong government has criticised what it called “malicious slandering” of an appeal judgement that ruled against media tycoon Jimmy Lai, and the “wanton personal vilification” of a British top-court judge by the city’s last colonial governor Chris Patten.
A government spokesperson on Wednesday said Patten had ignored a 76-page ruling delivered on Monday in which a panel of judges, including the UK’s David Neuberger, rejected an appeal by Lai and six other democrats against their conviction over participating in an unauthorised 2019 protest.
Meanwhile, the UK’s Independent newspaper launched a frontpage campaign for the overseas non-permanent judge (NPJ) to withdraw from the city’s Court of Final Appeal (CFA) on Wednesday.
According to the government spokesperson, “Patten’s criticisms against Lord Neuberger NPJ who handled the relevant case were completely groundless and unjustified personal attacks aiming to smear and slander the NPJ’s reputation.”
“Patten deliberately ignored the judgment delivered by Lord Neuberger and maliciously accused the judge of not properly explaining the reasons for his judgment. Such an act was totally unfounded and outrageous,” they continued.
See also: Exclusive: UK judge Neuberger mulls role on int’l media freedom panel, legal body says
Patten – who was the final colonial governor of the territory ahead of its 1997 Handover from Britain to China – said the judgement demonstrated that rule of law was deteriorating in Hong Kong, according to British newspaper The Guardian.
“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,” Patten was quoted as saying.
“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,” Patten added.
The Independent previously revealed that overseas non-permanent judges, who are flown in to sit on the CFA, were typically paid around HK$400,000 per visit, with flights, accommodation and travel also expensed.
In June, Neuberger told Reuters that he would remain as a top court judge “to support the rule of law in Hong Kong, as best I can.” That month, British judges Jonathan Sumption and Lawrence Collins resigned from the CFA, with the latter citing the “political situation.” Judges Robert Reed and Patrick Hodge resigned in March 2022.
The presence of international judges has historically given credibility to Hong Kong’s common law legal tradition. Overseas non-permanent judges typically serve three-year terms. The current stint of Nicholas Phillips, a British judge who has been on the CFA since 2012, is set to expire at the end of next month.
Monday judgement
On Monday, democracy figures Martin Lee, Margaret Ng, Jimmy Lai, Albert Ho, Lee Cheuk-yan, “Long Hair” Leung Kwok-hung and Cyd Ho lost an appeal to overturn their convictions for knowingly taking part in an unauthorised assembly on August 18, 2019. Neuberger was on the panel of judges who unanimously rejected the democrats’ argument that their conviction was disproportionate to the protection of their basic human rights.
“The defendants’ proposition is unsustainable. It is contrary to all established principles governing constitutional challenges in Hong Kong and especially contrary to accepted principles for assessing proportionality,” the judgement read.
On Tuesday, the Hong Kong government expressed its support for the top court decision. Hong Kong citizens have the right to “peaceful assembly and procession conducted in accordance with the law,” a statement read. “That said, these rights must be exercised in conformity with the relevant legislation to ensure the safeguarding of national security, public order, public safety and the protection of the rights and freedom of others.”
The authorities backed the court’s rejection of UK rulings on free assembly: “In view of the differences between the respective frameworks for human rights challenges in Hong Kong and the United Kingdom, the court also held that the decisions of the two UK cases should not be followed in Hong Kong[.]”
In the judgement, Neuberger ruled that the constitutional differences in the Hong Kong and UK legal systems did not mandate a different approach when considering whether a restriction on the right of assembly was proportionate. But they do require a different approach “if the court concludes that the restriction is or may not be proportionate,” he said.
Aside from the protest case, Jimmy Lai, founder of Hong Kong’s defunct Apple Daily newspaper and a high-profile supporter of the city’s democracy movement, has been accused of violating the Beijing-imposed national security law. If convicted, he faces life in prison. The 76-year-old is on trial for two counts of taking part in a “conspiracy to collude with foreign forces” under the security legislation, and also for conspiring to publish “seditious” materials.
In its Wednesday statement, the government spokesperson added that “no one can abusively criticise or slander judges, or make baseless allegations purely out of political motives.”
Press freedom role
Also on Wednesday, HKFP revealed that Neuberger was reconsidering his position on an advisory board to an international press freedom NGO, according to a legal body.
The International Bar Association’s Human Rights Institute said the judge would soon issue a statement about his role as Chair of the High Level Panel of Legal Experts on Media Freedom. The panel advises the Media Freedom Coalition, composed of 51 countries, which seeks to “promote media freedom through advocacy, diplomatic interventions, legal reforms, events and funding,” according to its website.
Neuberger, however, remains a trustee of Prisoners Abroad, a charity that advocates for British prisoners overseas. Lai, a British national, has reportedly been held in solitary confinement for around three years. He has been detained since December 2021.
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