A senior British judge, David Neuberger, former head of Britain's Supreme Court, heard a protest-related case in Hong Kong on Monday.
The case involves seven high-profile democrats, sparking further debate about the role of foreign judges in Hong Kong’s highest court amid a national security crackdown.
Neuberger is part of a five-judge panel on Hong Kong's Court of Final Appeal (CFA) reviewing an appeal by seven individuals, including prominent barrister and democracy advocate Martin Lee and media tycoon Jimmy Lai. They seek to overturn their convictions for illegal assembly. The arrests occurred nearly eight months after a peaceful procession following a protest in August 2019.
Foreign jurists on Hong Kong's top court are viewed by some lawyers and diplomats as upholding the city’s rule of law. This comes at a time when critics, including the U.S. government, claim that national security laws are being used to suppress dissent.
The hearing follows the recent resignations of two British judges from the CFA, Lawrence Collins and Jonathan Sumption. Sumption cited Hong Kong’s transformation into a totalitarian state and the significant compromise of its rule of law as his reasons for resigning.
In contrast, Neuberger told Reuters in mid-June that he would continue serving on Hong Kong's highest court to support the rule of law in the region as best he could.
This case arises amid a prolonged national security crackdown in Hong Kong, initiated following the mass pro-democracy protests in 2019. During this crackdown, opposition democrats have been imprisoned, and liberal civil society and media outlets have been shut down.
The appeal focuses on whether the conviction was proportionate to fundamental human rights protections, based on principles from two non-binding decisions of Britain’s Supreme Court known as "operational proportionality." Neuberger asked a defense lawyer to clarify his views on proportionality and whether the defendants had a "reasonable excuse" to participate in the demonstration.
Defense lawyers argued that the police took no action on the day of the protest, the seven individuals did not cause disruptions, and they were singled out from tens of thousands of other protesters. "These are protected rights, and the court is bound to protect those rights," argued defense lawyer Robert Pang.
Hong Kong's Basic Law and Bill of Rights guarantee the right of public assembly. However, a lower court judge ruled that such rights are not absolute, citing a risk of public disorder given the volatility at the time.
Among the defendants is 86-year-old Martin Lee, a leading barrister who helped launch Hong Kong's Democratic Party. He received an 11-month suspended sentence. Other defendants include democratic campaigners Albert Ho, 72, and Lee Cheuk Yan, 67, who have been remanded in custody since 2021 due to another national security case. Photo by Diliff, Wikimedia commons.