Lord Neuberger of Abbotsbury, the British law lord who sits on Hong Kong’s highest court, has been condemned by rights groups after he upheld verdicts and prison sentences against some of the city’s leading pro-democracy activists.
The court ruled against an appeal by Jimmy Lai, the newspaper tycoon who supported anti-Beijing protests in 2019, Martin Lee Chu-ming, the former head of the Hong Kong Democratic Party, and five other activists against convictions handed down in 2021.
They had been accused of taking part in a large, peaceful pro-democracy rally in 2019 in defiance of a police ban. Their lawyers argued that under common law principles inherited from Hong Kong’s colonial past convictions should be “proportionate” in matters concerning free speech where violence was not involved.
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The court disagreed unanimously, saying it would be unconstitutional to use the principle to acquit the defendants. Neuberger, a retired president of the UK’s Supreme Court who has rejected repeated calls to stand down from his position in Hong Kong, called the attempt to use the principle of proportionality “misconceived”.
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The verdict and Neuberger’s role in it were condemned by the Committee for Freedom in Hong Kong Foundation, a London-based campaign group. Mark Sabah, its director, said: “In a word, it’s disgraceful that Lord Neuberger is even part of this. His credibility is shot.”
Lai, 76, founded Apple Daily, a rabble-rousing Hong Kong tabloid newspaper that was shut down after a string of protests against interference in the city’s government by Beijing. He is a British citizen.
He was sentenced to 14 months in prison over the 2019 protest, one of a string of convictions. He is currently on trial for “collusion with foreign forces” under Hong Kong’s Beijing-imposed national security law.
Lee, 86, was the most prominent pro-democracy politician in Hong Kong at the time of the handover from Britain in 1997, and warned at the time about its future under mainland Chinese rule. He said he expected to be detained as China moved in, but in fact this was the first time the authorities had dared to arrest him.
He was given a suspended sentence for the conviction he was appealing against. The other five defendants included Albert Ho, 72, and Lee Cheuk-yan, 67, both also former legislative councillors, and “Long Hair” Leung Kwok-hung, a veteran and well-known activist in the city.
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Lawyers argued that their arrests several months after the protest were politically motivated. The police had taken no action at the time.
The Basic Law, the constitution agreed for Hong Kong in negotiations between China and Britain, maintained aspects of British common law under the “one country, two systems” supposed to be the underlying principle of the city’s post-handover governance.
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The city’s highest court continued to recruit judges from around the world, particularly common law jurisdictions like the UK, Canada and Australia. Seven foreign judges remain, but others have resigned since the crackdown on pro-democracy activists and the imposition of national security laws penalising a range of opinions relating to the government, mainland China and the Communist Party.
In June, Lord Sumption, another former supreme court judge, resigned, saying that Hong Kong was becoming a “totalitarian state”. “Many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it,” he wrote in the Financial Times. “The rule of law is profoundly compromised in any area about which the government feels strongly.”
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Neuberger, however, defended remaining on the court, telling an interviewer: “My feeling is that so long as I can do good by being there and so long as I think that I might cause harm by leaving, I want to stay and support my judicial colleagues in Hong Kong and support the rule of law as long as I can.”
Campaigners have questioned how Neuberger can maintain his position as chairman of the international media watchdog, the High Level Panel of Legal Experts on Media Freedom, which was co-founded by the UK and Canada and is backed by the International Bar Association. He is also on the board of the Prisoners Abroad, another campaign group.
Sabah said that given Lai is a British prisoner abroad and a journalist, Neuberger should at the very least have recused himself from the hearing into his case.
“It reeks that he has the gall to still hold these positions,” Sabah said.
