Hong Kong's government has criticised what it called a “malicious slander” of an appeal ruling against media tycoon Jimmy Lai and a “wanton personal smear” of a British high court judge by the city's last colonial governor, Chris Patten.
A government spokesman said Wednesday that Patten ignored a 76-page ruling issued Monday in which a panel of judges including Britain's David Neuberger rejected an appeal by Lai and six other Democrats. against their conviction for participating in an unauthorized protest in 2019.
Meanwhile, Britain's Independent newspaper launched a front-page campaign on Wednesday calling for the overseas non-permanent judge (NPJ) to resign from the City's Court of Final Appeal (CFA).
A government spokesman said: “Patten's criticism of NPJ's Lord Neuberger, who handled the case, was a completely baseless and unjustified personal attack designed to defame and bring NPJ into disrepute.”
“Patten deliberately ignored the judgment given by Lord Neuberger and maliciously accused the judge of failing to explain properly the reasons for his decision. This was an entirely unreasonable and outrageous act,” they continued.
See also: Exclusive: UK judge Neuberger mulls role on international media freedom panel, legal body says
Patten, who was the territory's last colonial governor before it was handed over from Britain to China in 1997, said the court's ruling showed Hong Kong's rule of law was deteriorating. according to British newspaper The Guardian.
“This unjust verdict is made worse by the fact that Lord Neuberger, a former Chief Justice of the UK Supreme Court, was a party to this decision. This is particularly surprising because, as a member of the UK judiciary, Lord Neuberger sought to establish that English common law could accommodate fundamental aspects of human rights protection,” Patten is quoted as saying.
“He was also always keen for judges to be willing to explain their reasoning. In this case, perhaps some of his views on the law changed between the first-class lounge at Heathrow and the arrivals terminal at Hong Kong International Airport,” Patten added.
The Independent previously disclosed that overseas non-permanent judges coming to participate in CFA work are typically paid around HK$400,000 per visit, which also includes travel, accommodation and travel expenses.
In June Neuberger said Reuters that he would remain as a high court judge “to uphold the rule of law in Hong Kong to the best of my ability.” That same month, British judges Jonathan Sumption and Lawrence Collins resigned from the CFA, the latter citing the “political situation.” Judges Robert Reed and Patrick Hodge are set to step down in March 2022.
The presence of international judges has historically given authority to Hong Kong’s common law legal tradition. Overseas non-permanent judges typically serve for three years. The current term of Nicholas Phillips, a British judge who has been on the CFA since 2012, expires at the end of next month.
Monday's decision
On Monday, democracy activists Martin Lee, Margaret Ng, Jimmy Lai, Albert Ho, Lee Cheuk-yan, “Long Hair” Leung Kwok-hung and Sid Ho lost an appeal to overturn their convictions for knowingly participating in an unauthorised assembly on August 18, 2019. Neuberger was part of a panel of judges that unanimously rejected the democrats' argument that their convictions were disproportionate to protecting their basic human rights.
“The defendants' proposal is without merit. It is contrary to all the well-established principles governing constitutional disputes in Hong Kong and is particularly contrary to the generally accepted principles of proportionality assessment,” the judgment said.
On Tuesday, the Hong Kong government expressed its support for the top court's ruling. Hong Kong citizens have the right to “peaceful assembly and procession in accordance with law,” statement read. “In this case, these rights must be exercised in accordance with the relevant legislation to ensure the protection of national security, public order, public safety and the protection of the rights and freedoms of others.”
The government upheld the court's rejection of the UK's freedom of assembly decisions: “Given the differences between the relevant legal frameworks in relation to human rights issues in Hong Kong and the UK, the court also held that the decisions in the two UK cases should not apply in Hong Kong.”[.]”
In the ruling, Neuberger held that the constitutional differences between the Hong Kong and British legal systems did not require a different approach when considering whether a restriction on the right of assembly was proportionate. But they did require a different approach “if the court concludes that the restriction is or is not proportionate,” he said.
Apart from the protest incident, Jimmy Laifounder of the defunct Hong Kong Apple Daily Newspaper and a prominent supporter of the city democratic movementwas accused of violating Beijing's National Security LawIf found guilty, he faces life in prison. 76-year-old man on trial on two counts of participating in a “conspiracy to conspire with foreign forces” under the security legislation, as well as conspiracy to publish “subversive” material.
In a statement on Wednesday, a government spokesman added that “no one may insult or slander judges or make unfounded accusations solely for political reasons.”
The Role of Press Freedom
Also on Wednesday, HKFP reported that Neuberger was reviewing his position on the advisory board of an international press freedom NGO, according to the legal body.
The International Bar Association's Human Rights Institute said the judge would soon issue a statement on his role as chair. High level group experts on media freedom legal issues. The group advises the 51-nation Media Freedom Coalition, which seeks to “promote media freedom through advocacy, diplomatic interventions, legal reform, events and funding,” according to its website.
However, Neuberger remains a trustee of the charity Prisoners Abroad, which advocates for British prisoners abroad. Lai, a British national, has reportedly been held in solitary confinement for around three years. He has been in custody since December 2021.
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