Chris Patten, the former governor of Hong Kong, has decried as “unjust” a decision by the Chinese city’s top court to uphold the conviction of Jimmy Lai and other prominent pro-democracy activists for participating in a peaceful protest in 2019.
On Monday, Hong Kong’s court of final appeal unanimously agreed to uphold the convictions of seven activists who participated in an unauthorised 2019 protest in which 1.7 million people – roughly a quarter of Hong Kong’s population – took to the streets to oppose Beijing’s tightening grip on the city.
On the panel upholding the conviction was David Neuberger, one of three British justices still serving as non-permanent judges in the former British colony.
Lord Patten, who was the last British governor of Hong Kong before the territory was returned to Chinese rule in 1997, and who is now a patron of Hong Kong Watch, said Monday’s 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.”
Monday’s ruling centred on whether the conviction was proportionate to the defendants’ fundamental human rights, which are enshrined in the city’s bill of rights. These include freedom of expression and freedom of assembly. In the written judgment, Neuberger said the chief justices had “fully and impressively” considered those questions.
Neuberger is the chair of a legal advisory panel to the Media Freedom Coalition. He is also a trustee of Prisoners Abroad, a charity that advocates for British prisoners overseas.
One of the defendants in Monday’s appeal was the former media mogul Jimmy Lai, a 76-year-old British citizen who is separately on trial for national security offences in proceedings described by the UK as politically motivated. The UK and human rights groups have called for Lai, who has been detained since December 2020, to be released.
In December, the Media Freedom Coalition said the prosecution of Lai, the publisher of the former pro-democracy newspaper Apple Daily, had created a “chilling effect” in Hong Kong.
In recent months there has been increasing pressure on Neuberger and the two remaining British overseas non-permanent judges in Hong Kong to resign. In June, Jonathan Sumption and Lawrence Collins resigned from the Hong Kong bench, as did 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.
Mark Sabah, the director of the Committee for Freedom in Hong Kong Foundation, said it was “shameful and disgraceful” that Neuberger still sat in the court.
Overseas judges visit Hong Kong on an ad hoc basis and are paid about £40,000 per visit, which usually lasts 29 days.
Neuberger said in June said that he intended to continue serving in Hong Kong, citing its “impressive and independent judiciary”.
As well as Lai, the veteran pro-democracy activists Margaret Ng, Albert Ho, Martin Lee, Leung “Long Hair” Kwok-hung, Lee Cheuk Yan and Cyd Ho had their convictions upheld on Monday.
Neuberger said it would be inappropriate to comment on a case he had sat on, and said his judgment must speak for itself.
