Top British judge hears Hong Kong protest case amid foreign judges row

HONG KONG (Reuters) – A senior British judge on Monday heard a protest-related case in Hong Kong involving seven high profile democrats, adding to the debate over whether foreign judges should continue to sit on the city’s highest court amid a national security crackdown.

David Neuberger, a former head of Britain’s Supreme Court, is one of a panel of five judges on Hong Kong’s Court of Final Appeal (CFA) hearing an appeal by seven people to have their conviction of illegal assembly overturned. The defendants include high profile barrister and democracy advocate Martin Lee and media tycoon Jimmy Lai.

The seven were arrested nearly eight months after a peaceful procession from a downtown park after a protest in August 2019.

Some lawyers and diplomats say the foreign jurists on Hong Kong’s top court lend credibility to the city’s rule of law at a time when critics including the US government say national security laws have been used to silence dissent.

The hearing comes just weeks after the resignations of two British judges from the CFA, Lawrence Collins and Jonathan Sumption. Sumption explained his resignation by saying Hong Kong was becoming a totalitarian state and the city’s rule of law had been “profoundly compromised”.

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

The case comes amid a years-long national security crackdown in Hong Kong following mass pro-democracy protests in 2019, where opposition democrats have been jailed, and liberal civil society and media outlets shut down.

The appeal centres on whether the conviction was proportionate to fundamental human rights protections, a principle set by two non-binding decisions of Britain’s Supreme Court known as “operational proportionality”.

Neuberger at one point asked a defence lawyer to clarify his views on proportionality and whether the defendants had a “reasonable excuse” to participate in the demonstration.

Other defence lawyers argued the police had taken no action on the day, the seven had caused no disruptions and had been singled out amongst tens of thousands of other protesters.

“These are protected rights and the court is bound to protect those rights,” argued one defence lawyer, Robert Pang.

Hong Kong’s mini-constitution, the Basic Law, guarantees the right of public assembly, as does its Bill of Rights.

A lower court judge, however, had ruled that such rights are not absolute and that there was a risk of public disorder in the democrats’ actions given the volatility at the time.

One of the defendants, 86-year-old Martin Lee, a top barrister who helped launch Hong Kong’s Democratic Party, was given an 11-month suspended sentence for this charge.

Others defendants include the democratic campaigners Albert Ho, 72 and Lee Cheuk Yan, 67. They were arrested and charged in another national security case and have been remanded in custody since 2021.