On August 12, 2024, the Court of Final Appeal unanimously rejected the appeals of Jimmy Lai and six other pro-democracy figures who were convicted for their participation in an unauthorised assembly during the city’s pivotal 2019 pro-democracy protests.

Jimmy Lai, the septuagenarian founder of the now-shuttered pro-democracy newspaper, Apple Daily, stands as a symbol of Hong Kong’s embattled press freedom. Alongside him, eminent democracy advocate Martin Lee KC and others joined the ranks of those found guilty amidst the intense 2019 demonstrations demanding greater autonomy from Beijing’s tightening grip. Although a lower court invalidated their charges for organising the rally, their participation in the unauthorised event was deemed unlawful.

Central to Lai’s appeal was the invocation of the principle of “operational proportionality,” a doctrine arising from precedents set by the UK’s Supreme Court, addressing whether their convictions unduly constrained their fundamental human rights. However, the Hong Kong court’s steadfast decision emphasises legal adherence over international human rights benchmarks, stirring a dialogue about the intrinsic balance between security and freedom.

Notably, the court’s decision occurred against a backdrop of increasing scrutiny surrounding the role of foreign judges within Hong Kong’s judicial system. This debate was rekindled by the recent resignations of esteemed British judges Lawrence Collins and Jonathan Sumption, after The Committee for Freedom in Hong Kong’s report who cited growing concerns about the erosion of legal autonomy and a shift towards authoritarian governance under the auspices of Beijing’s tightened national security law finding:

The remaining overseas NPJs should step down from the Hong Kong Court of Final Appeal due to the severe erosion of human rights, judicial independence, and rule of law in Hong Kong. They would be following in the footsteps of their three colleagues who stepped down in 2022 due to concerns that their presence on the court was legitimising Hong Kong’s authoritarian regime.

One foreign judge who has come under fire for his involvement in Hong Kong’s judiciary is Lord David Neuberger, a former President of the UK Supreme Court. Neuberger has faced intense criticism for his decision to sit on the panel overseeing Lai’s trial, which has been widely decried as a “sham” by human rights groups. His involvement has been seen as a troubling endorsement of the proceedings, which are widely viewed as politically motivated and a violation of Hong Kong’s promised autonomy.

Further Neuberger’s position on the International Bar Association’s (IBA) high-level legal expert panel on media freedom has also been called into question. The Committee for the Freedom of Hong Kong’s Director Mark Sabbah described this as “mind boggling” given that Neuberger has lent his credibility to a judicial process that many view as a crackdown on independent media. Jimmy Lai, the jailed media tycoon at the centre of the Hong Kong trial, is the founder of the now-shuttered Apple Daily newspaper, which was a vocal critic of the Hong Kong government. By presiding over Lai’s case, Neuberger has been accused of undermining the very principles of media freedom that his IBA Panel is meant to defend.

Human rights activist Mark Sabbah told JURIST that Neuberger’s actions are “bringing the British legal system into disrepute” and “literally showing that British judges can be packaged and bought.” The IBA itself has faced criticism for its silence on Neuberger’s involvement in the Hong Kong trial. As a prominent member of the organisation, many have questioned why the IBA has not taken a stronger stance or even removed Neuberger from his position on the media freedom panel.

JURIST reached out to The High Level Panel of Legal Experts on Media Freedom serves as an advisory body to the Media Freedom Coalition of States. Lady Helena Kennedy LT KC, a senior lawyer on the Panel, expressed concern over how “the law in Hong Kong is being weaponised and used against the pro-Democracy movement.” She believes “UK judges should not sit on the court, nor should UK lawyers participate in prosecuting cases,” emphasising her position clearly.

Regarding protests, Kennedy notes that while most democratic nations require permits, “the decision to refuse a permit was discriminatory and disproportionate.”, and criticises the harsh sentences given to Martin Lee KC and Margaret Ng for participating in a peaceful vigil, considering them “excessive” and questions, “Why prison? And why the distinction made of Jimmy?” referring to British media mogul Jimmy Lai’s sentence, which far exceeds that which was handed down to others, making a show trial of Mr Lai.

While retired judges can choose their roles, Lord Neuberger continues in Hong Kong to “support the Hong Kong judiciary in their efforts to preserve the Rule of Law.” Although Lady Kennedy respects him as “a person of the highest integrity… acting out of the best of intentions,” Lady Kennedy believes the line to participate has been crossed, aligning with the International Bar Association’s Human Rights Institute’s view that participation in Hong Kong’s judicial processes should cease due to the Rule of Law’s ongoing assault. However, if Neuberger is a man of the highest integrity how can he sit on the CCP led courts, without any fairness under the  rule of law and to then sentence a septuagenarian to prison for peaceful protest?

Neuberger, a former President of the UK Supreme Court, has faced intense criticism for his decision to sit on the panel overseeing Lai’s trial. This is a man who has spent his career upholding the rule of law, yet he sees fit to participate in a judicial process that is widely regarded as a sham. At 78 years old, one would expect Neuberger to be a stalwart defender of human rights and the principles of justice. Instead, he appears to be prostituting himself to the Chinese government for cash, lending his credibility to a system that is actively working to undermine the very values he once swore to uphold.

The question begs to be asked: at what point does a learned man of the law, a former president of the Supreme Court think it is appropriate to jail an octogenarian for exercising their right to free speech? Is this really the legacy Neuberger wants to leave behind? It’s a shameful indictment of his character and a betrayal of the principles that have guided his career. Such individuals, who were once bastions of the rule of law, are now complicit in the erosion of Hong Kong’s judicial independence. It’s a stain on the UK’s reputation as a champion of human rights and the rule of law.

Since this piece went to Press, Neuberger has resigned from the High level Panel on Media Freedom, saying in a letter: “I have now concluded that I should go now ” due to the prospects that his position within Hong Kong’s Courts should “detract from the work of the High Level Panel”.  This is despite the hypocrisy of this fact choosing to focus on his position as a non-permanent judge in Hong-Kong and continue with this show-trial shows that money talks, and human rights, and deciding to side with the suppression of free expression can be bought.

In light of these developments, concerns about the independence of Hong Kong’s judiciary have grown. The Court of Final Appeal’s rejection of Lai’s appeal has sparked fears that the city’s judicial system is becoming increasingly beholden to Beijing’s influence. The recent resignations of British judges Collins and Sumption have only added to these concerns, raising questions about the long-term viability of Hong Kong’s judicial independence.

As Hong Kong navigates this critical juncture, it is essential to consider the implications of these events on the city’s future. The international community must closely monitor developments in Hong Kong and hold its leaders accountable for upholding the rule of law and protecting fundamental freedoms. The fate of Jimmy Lai and other pro-democracy activists serves as a powerful reminder of the human cost of erosion of judicial independence and the importance of safeguarding democratic values in the face of authoritarianism.

Ultimately, Hong Kong’s judiciary stands at a crossroads. Will it continue down a path of increasing subservience to Beijing’s will, or will it find a way to maintain its independence and uphold the principles of justice and fairness? The answer to this question will have far-reaching consequences not only for Hong Kong but also for the global community, which looks to this city as…as a beacon of freedom and democracy in the Asia-Pacific region.

The rejection of Jimmy Lai’s appeal has sparked widespread condemnation from human rights groups and international observers, who see it as a clear example of the erosion of Hong Kong’s judicial independence. The European Union, the United States, and other countries have expressed concerns about the decision, with some calling for the immediate release of Lai and other pro-democracy activists.

In the face of this mounting pressure, Hong Kong’s leaders must decide whether to continue down a path of repression or to find a way to restore the city’s reputation as a bastion of freedom and democracy. The fate of Jimmy Lai and other pro-democracy activists hangs in the balance, and their treatment will serve as a powerful indicator of Hong Kong’s commitment to upholding the rule of law and protecting fundamental freedoms.

As the world watches, it is essential to remember that Hong Kong’s struggle for democracy and freedom is not just a local issue but a global one. The city’s fate serves as a powerful reminder of the importance of safeguarding democratic values and protecting human rights in the face of authoritarianism.

Hong Kong’s judiciary stands at a critical juncture. The rejection of Jimmy Lai’s appeal has sparked widespread concern about the erosion of judicial independence and the rule of law in the city. As Hong Kong navigates this challenging time, it is essential to prioritize the protection of fundamental freedoms and the upholding of democratic values. The fate of Jimmy Lai and other pro-democracy activists serves as a powerful reminder of the human cost of repression and the importance of safeguarding human rights in the face of authoritarianism.

Ultimately, Hong Kong’s future depends on its ability to maintain its independence, uphold the rule of law, and protect fundamental freedoms. The international community must continue to monitor developments in Hong Kong closely and hold its leaders accountable for any actions that undermine these core values. By doing so, we can help ensure that Hong Kong remains a beacon of freedom and democracy in the Asia-Pacific region for generations to come.

As this article goes to press, Jimmy Lai remains behind bars, his fate uncertain. The international community continues to call for his release and for the restoration of Hong Kong’s judicial independence. The city’s leaders, meanwhile, face a choice: to continue down a path of repression or to find a way to restore Hong Kong’s reputation as a bastion of freedom and democracy.

One thing is certain: democracies and autocracies, dictatorships and theocracies will be watching.