Head of int’l legal group hits out at Hong Kong rule of law amid top court judge’s withdrawal from advisory panel
Hong Kong Free Press
Hong Kong law was being “weaponised” against the city’s democracy movement, and British lawyers and judges should not sit on cases in the city, the director of the International Bar Association’s Human Rights Institute (IBAHRI) has said. The Judiciary, in response, has said judges “decide cases impartially and independently.”
The statement came on the eve of UK judge David Neuberger quitting the High Level Panel of Legal Experts on Media Freedom, which advises the Media Freedom Coalition, an NGO that advocates for press freedom at the state level. IBAHRI is secretariat for the High Level Panel.
In a statement last Wednesday, Helena Kennedy wrote: “My view is that the law in Hong Kong is being weaponised and used against the pro-Democracy movement. I do not think UK judges should sit on the court, and nor should UK lawyers participate in prosecuting cases, and I have made that view very clear.”
Neuberger was among a panel of judges who denied media tycoon Jimmy Lai and six other democrats an appeal over a 2019 protest last Monday.
Kennedy said the authorities’ objection to the peaceful demonstration on August 18, 2019, was “discriminatory and disproportionate,” whilst the denial of an appeal was surprising.
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 the unauthorised assembly. 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.
“Martin Lee KC and Margaret Ng were given prison sentences and although suspended I think that was excessive for their participation in a candlelit vigil,” Kennedy wrote, though she appeared to confuse the 2019 rally against an ill-fated extradition bill with a separate Tiananmen crackdown remembrance vigil.
“Jimmy Lai – the media owner – was given an immediate prison sentence. These are all people in their seventies. Why prison? And why the distinction made of Jimmy? The whole approach was excessive,” she added.
The Security Bureau did not respond to enquiries last Friday, whilst the Judiciary said it would not comment on individual cases, nor on Neuberger’s other professional roles.
However, a spokesperson added: “Judges at all levels of court, including overseas non-permanent judges, have the constitutional duty under the Basic Law to administer justice and decide cases impartially and independently in accordance with the Judicial Oath. They are required to faithfully and professionally apply the law and decide cases accordingly regardless of how controversial some of these cases may happen to be.
“Individual circumstances of convicted defendants in criminal cases are, where relevant, taken into account and accorded weight accordingly during sentencing,” they said.
Security law cases
Kennedy noted that last Monday’s appeal hearing was not related to the security law cases against the media mogul.
The 76-year-old Apple Daily founder faces up to life in prison if convicted of violating the Beijing-imposed national security law. He is on trial for two counts of taking part in a “conspiracy to collude with foreign forces” under the 2020 security legislation, and also for conspiring to publish “seditious” materials.
Foreign judges
In her statement, Kennedy added that, despite IBAHRI’s stance on Hong Kong’s rule of law and its opposition to foreign judges sitting on the apex court, the group still took the view that “Lord Neuberger is a person of the highest integrity and is acting out of the best of intentions.”
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 UK’s Independent newspaper launched a frontpage campaign for Neuberger to withdraw from the city’s Court of Final Appeal this week.
However, in June, he 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 apex court, with the latter citing the “political situation” and Sumption taking to a newspaper op-ed to criticise Hong Kong’s judicial system. Judges Robert Reed and Patrick Hodge resigned in March 2022.
Neuberger remains a trustee of Prisoners Abroad, a charity that advocates for British prisoners overseas. Lai, a British national, has spent some of the past three years in solitary confinement, according to the Associated Press. He has been detained since December 2021.
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