By any yardstick, Lord (David) Neuberger is a legal colossus. He served as the president of the United Kingdom’s Supreme Court from 2012 to 2017 (having been Master of the Rolls before that), and has been an overseas nonpermanent judge (NPJ) of the Hong Kong Court of Final Appeal (HKCFA) since 2009. He has been a judge since the 1990s, and his judgments have always been immaculate.
Neuberger’s powers of reasoning are formidable, and his judgments are invariably the last word on the subject. He is principled, professional and wise, and has always refused to be intimidated by lesser mortals. When the British NPJs were pressured to quit the HKCFA by the British government (Liz Truss and Dominic Raab) after the enactment of the Hong Kong National Security Law in 2020, several fainthearts and fair-weather friends complied, but not Neuberger.
He said he would continue “to support the rule of law in Hong Kong, as best I can”, placing himself in the firing line. Those who wish to harm China by undermining Hong Kong’s legal system were incensed, knowing the presence of the overseas NPJs in the HKCFA confounds their narrative about the rule of law being dead. As they were unable to intimidate Neuberger, they have resorted to abuse, orchestrated by the former governor, Lord (Chris) Patten, the senior patron of Hong Kong Watch, the anti-China hate machine.
On Aug 12, the HKCFA delivered its landmark judgment on unauthorized assemblies (FACC 2-6/2024). Although the appellants, including the media magnate, Jimmy Lai Chee-ying, had previously succeeded in having their convictions for organizing an unlawful assembly quashed by the Court of Appeal, the HKCFA’s five judges, including Neuberger, unanimously dismissed their appeals against their convictions for participating in an unauthorized assembly.
As in the UK and elsewhere, there are, for various reasons (national security, public safety, public order, and the protection of the rights of others), restrictions in Hong Kong on public gatherings. If there is to be a public gathering of more than 50 people, or a procession of over 30 people, a certificate of no objection must be obtained from the police commissioner. Although the commissioner approved a meeting in Victoria Park on Aug 18, 2019 (at which 300,000 people were expected), he objected to a subsequent public procession from Victoria Park to Chater Road, and another public meeting on arrival. Lai and his confederates nonetheless participated in the procession and the evidence against them was described by the Court of Appeal as “overwhelming”.
In the HKCFA, the appellants boldly sought to drive a coach and horses through the Public Order Ordinance (Cap.245). They challenged their convictions on the basis of nonbinding decisions by the UK Supreme Court, known as “operational proportionality”. They argued that, before convicting them, the trial judge had to be satisfied of the proportionality of the decisions to arrest and/or to charge and/or to convict the defendants. However, as they were relying on British judgments decided under differently formulated laws, the HKCFA had no difficulty rejecting the submission that the convictions were disproportionate to the protection of their basic human rights.
The HKCFA’s reasoning was clear, cogent and compelling, and no other conclusion was reasonably open to it. This, however, did not prevent Patten from denigrating its judges. He set about trying to score political points at the expense of jurists of the highest integrity and exposed his ignorance in the process.
Although he had not heard the submissions or read the judgment (or, if so, had not understood it), Patten claimed it was “unjust”. He told The Independent it was “perfectly obvious in this case that the proceedings against him are an act of vengeance against Mr Lai” (Aug 13). This was risible, as any lawyer could have told him.
If Lai was prosecuted for political reasons without regard to the evidence, his lawyers would have applied to the courts to have the case thrown out as an abuse of process, but they did not. Nonetheless, Patten claimed to know more about the case than Lai’s high-powered legal team, which demonstrated the extent to which his bigotry has warped his thinking.
Like other judges, Neuberger and his fellow NPJs swore a judicial oath upon appointment. This requires them to “safeguard the law and administer justice without fear or favor, self-interest or deceit”, and Neuberger has scrupulously adhered to this in a long judicial career. Despite that, Patten maligned him, claiming it was delusional “for Lord Neuberger to think he is standing up for the rule of law by taking part in this sort of case”. It had clearly not occurred to him that Neuberger, with his vast experience, had helped to ensure that the HKCFA’s judgment was not only legally correct but also just.
Not content with slurring a fine British judge, Patten sought to belittle Neuberger’s fellow judges but only succeeded in demeaning himself. He said he “assumed overseas judges would be concerned with protecting the common law, not giving legitimacy to the sort of laws applied in a vengeful way by a tinpot dictatorship”. If this was in any way indicative of the perverted mindset that guided him in his Hong Kong years (1992-97), it is little wonder his governorship was an abysmal failure and seriously imperiled the objectives of the Sino-British Joint Declaration (1984) for a smooth transition in 1997.
Indeed, Patten has form for ill-judged comments on legal issues of which he knows little or nothing. After, for example, rioters faced charges arising out of the Mong Kok riots (2016), he claimed that the riot law contained in the Public Order Ordinance (Cap.245) was illegitimate. He announced in 2018 that it was in “direct contravention” of the International Covenant on Civil and Political Rights (applicable in Hong Kong through the Basic Law’s Art.39), which was extraordinary.
Anybody charged with a criminal offense can challenge its constitutionality in court, and Patten seemed wholly unaware that whenever the Public Order Ordinance was challenged in the HKCFA (which, in 2018, included three former presidents of the UK Supreme Court), its legitimacy was upheld.
Moreover, Patten failed to explain why, if he disapproved of the riot law, he did nothing about it during his governorship when it was widely used against rioters in the Vietnamese refugee detention centers.
Earlier, in 2017, Patten had also made a fool of himself. After three activists were imprisoned by the Court of Appeal for their participation in a violent unlawful assembly at the outbreak of the Occupy Central disturbances in 2014, he maligned the judges. Although unfamiliar with the legal niceties, he told the Financial Times their judgment was “a deplorable decision”. However, he did not tell his readers that 10 security guards were injured by the activists, one seriously.
Anybody wishing to understand Patten’s motivation need look no further than May 28, 2020, when he declared, “China is an enemy to us now.” This is why the US regards him as such a valuable asset in its propaganda campaign against China, as one telling incident revealed. When the then-US secretary of state, Mike Pompeo, visited London on July 22, 2020, he immediately summoned Patten to see him at Winfield House, the US ambassador’s London residence. Also summoned was Nathan Law Kwun-chung, the convicted felon and national security fugitive. Although the specific instructions Pompeo gave the pair are unknown, their general nature can be readily imagined, and they have been bad-mouthing Hong Kong ever since.
A barrack-room lawyer is described as “a person who freely offers opinions, especially in legal matters, that he is unqualified to give” (Collins Dictionary), and this fits Patten to a tee. He is the worst type of political boot boy, and it is unforgivable that he has vented his spleen on a judicial titan. However, Neuberger’s reputation is secure, and is in no way diminished by the rantings of a busted flush.
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.
