When the Hong Kong Court of Final Appeal (HKCFA) decides a case, it comprises five judges. A large panel has its advantages, including minimizing the likelihood of error.
If one judge muddles up the facts or misconstrues the law, the other four judges will correct him or her. The judgment will not disclose any such blunders, which remain internal. In this way, the shortcomings of particular judges do not become public knowledge.
However, it may be a different story if a judge steps outside his comfort zone. If, for example, he goes off on a frolic of his own, his inadequacies may be exposed, as Lord (Jonathan) Sumption demonstrated on June 6. In a blaze of publicity, he abruptly resigned as one of the HKCFA’s overseas nonpermanent judges.
Although much has been said about how Sumption besmirched Hong Kong, let down his colleagues, and allowed his vainglory to overbear his judgment, his factual errors must also be highlighted.
Having resigned, Sumption fired off missives in all directions. He penned articles for the media and appeared on various television channels. He clearly had the time of his life, albeit at the expense of elementary fact-checking.
His grandstanding was of a type not normally associated with the judiciary and was calculated to damage Hong Kong. It was, however, also revelatory, and he exposed his flaws in the process. He was not on top of his brief, and the more he pontificated the more he blundered.
Sumption’s biggest faux pas came on June 12 when he was interviewed by Sky News’ Yalda Hakim. Having condemned Hong Kong’s National Security Law (NSL) (which he defended in 2021, citing its human rights protections), he deplored the convictions, on May 30, of “fourteen pro-democracy politicians of conspiracy to commit sedition” (an offense punishable at the time of commission with up to two years’ imprisonment, under the Crimes Ordinance). This was extraordinary, as the offense had nothing to do with sedition.
Sumption must have been one of the very few people who did not know the 14 defendants were convicted of conspiring to subvert State power (an offense punishable with up to life imprisonment, under the NSL), arising out of a plot to paralyze the Legislative Council and wreck the “one country, two systems” governing policy.
This, however, was not an isolated blunder, and his errors proliferated.
He even showed his ignorance of the city’s legal arrangements. Although the Standing Committee of the National People’s Congress (NPCSC) issued an interpretation in 2022 regarding overseas lawyers appearing in national security trials, it did so pursuant to the NSL and not, as he told the Financial Times, under the Basic Law.
Moreover, Sumption sought to sensationalize the NPCSC’s interpretation by claiming it reversed a court decision to allow the media magnate Jimmy Lai Chee-ying to be represented in his national security trial by a UK lawyer (Tim Owen). It did no such thing. It simply indicated that it was for the Hong Kong chief executive to decide, on a case-by-case basis, whether national security would be endangered if a particular overseas lawyer was admitted to handle a particular case.
It was also remarkable that Sumption failed to inform people that the NPCSC’s interpretation did not affect foreign lawyers who live and work in Hong Kong. He could have mentioned that Lai is being represented in his national security trial by a King’s Counsel from New Zealand (Marc Corlett), but he did not. It is anybody’s guess if this was because he was unaware of it or was aware of it but did not want to allay concerns.
Furthermore, Sumption’s ignorance of the Basic Law’s national security provisions was revealing. He claimed the NSL was enacted “in response to the threat of a pro-democratic majority in LegCo,” an error not even a first-year law student would have made (although it is a myth peddled in the UK by Hong Kong Watch, the anti-China hate machine).
Although the Basic Law required Hong Kong to enact national security laws “on its own” (Art.23), it remained unable to do so by 2020, 23 years after the reunification. This facilitated an insurrection that endangered the city’s way of life in 2019-20, for which it was ill-prepared. The central government, therefore, enacted the NSL and gave Hong Kong the tools it needed to safeguard the “one country, two systems” policy, and it proved its salvation.
Hence, Sumption’s ill-judged remarks showed how little he knew about Hong Kong’s legal obligations. However much of a hurry he was in to denigrate Hong Kong, he owed it to himself to have studied what the Basic Law said about enacting national security laws.
In another slur, Sumption deprecated the “continual calls for ‘judicial patriotism’,” implying they threatened the judiciary. However, it showed he was ignorant of what his fellow overseas judge, Lord (David) Neuberger (previously his boss in the UK Supreme Court), had said earlier about judicial patriotism in Hong Kong.
In 2014, Neuberger pointed out that judicial independence was not inconsistent with judicial patriotism. He explained that, having himself taken an oath of allegiance to the Hong Kong Special Administrative Region, “the way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law.” This is how the entire judiciary views its responsibilities, and it was disappointing that Sumption, despite having been a nonpermanent judge for five years, had still not grasped this elementary truth.
In the UK, Sumption is known for his formidable intellect, but also as a maverick. A renowned contrarian, he is also an expert on the Hundred Years’ War, which raged in Europe in the 14th and 15th centuries. He has even been described as the best brain in Britain. However, fact-checking is clearly not his forte, and a jurist who shoots from the hip cannot expect to be taken seriously, whether in court or elsewhere.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
