Lord David Neuberger, who is an overseas nonpermanent judge of the Hong Kong Court of Final Appeal (HKCFA), recently resigned from his position as chairman of the High Level Panel of Legal Experts on Media Freedom, a panel that advises the Media Freedom Coalition, a partnership of countries that advocates media freedom. His departure comes against the background of mounting political pressure faced by foreign judges in the HKCFA.

Some anti-China Western politicians, organizations and media outlets have exerted further pressure on Neuberger to resign from the HKCFA following the court’s dismissal of an appeal by former media tycoon Jimmy Lai Chee-ying and six other defendants in an unlawful assembly case. For instance, British online newspaper The Independent recently launched a front-page campaign to pressure Neuberger to quit.

Both Mark Sabah, the UK and EU director of the Committee for Freedom in Hong Kong Foundation, and the last governor of Hong Kong, Chris Patten, railed at Neuberger for what they called an “unjust verdict” in dismissing the above-mentioned appeal case and attempted to raise a tidal wave of personal attacks on the judge. Patten claimed that the “unjust verdict” is made worse by the fact that Neuberger was a party to this decision … since he was a member of the judiciary in Britain.

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We feel very upset that Patten launched such a malicious attack on Neuberger. But his groundless allegation cannot shatter our expectations of the unwavering commitment of a judicial heavyweight to the administration of justice. Neuberger’s outstanding track record in the judicial sector indicates that he has acted with complete integrity, in compliance with the laws and with the highest degree of professional competence and thoroughness. Though he is a retired British judge, he has not retired from his mission to uphold justice and protect human rights.

Our empathetic response is fueled by the perception that Patten has tried to undermine the reputation of Neuberger and attempted to force him to withdraw from the HKCFA. It makes less and less sense for China-bashers to criticize the HKCFA’s decisions by simply suggesting that the court has been under pressure to deliver the verdicts sought by the Hong Kong Special Administrative Region government. Without adducing probative evidence to support their claims, their attack has been reduced to crude political propaganda.

There is nothing to support Patten’s “unjust” allegation. In the judgment, Chief Justice Andrew Cheung Kui-nung and Justice Roberto Ribeiro, two of the presiding judges, held that the two UK Supreme Court decisions cited by the appellants to challenge their convictions should not be followed in Hong Kong because of the differences between the two jurisdictions. There is great merit in the ruling that those decisions were made in contexts which do not arise in Hong Kong and incorporate features of no local relevance.

In this case, Neuberger was on the panel of judges who unanimously rejected the appellants’ argument that their conviction was disproportionate to the protection of their basic rights. Special attention should be paid to paragraphs 159, 161, 162 and 163 of the judgment, which highlight the main arguments of Neuberger. Contrary to Patten’s allegation that Neuberger has given insufficient reasons for his judgment, Neuberger states that any criticisms that the provisions of the Public Order Ordinance (POO) are disproportionate are not open to the defendants in light of the HKCFA’s decision in Leung Kwok-hung vs HK ((2005) 8 HKCFAR 229). There is nothing in the reasoning which even gets close to suggesting that the reference to “lawful authority and reasonable excuse” played any part in the reasoning which led to the conclusion that the POO was proportionate.

The issue of “lawful authority and reasonable excuse” is extremely important because the HKCFA needs to examine whether it would have been open to the seven appellants to argue that they can invoke their constitutional right to freedom of assembly as “lawful authority and reasonable excuse”. According to Neuberger, if the law criminalizing unauthorized processions, and the decision to object to this procession were each proportionate restrictions of the basic rights to freedom of assembly, it is hard to see how the defendants could simply rely on that basic right as “lawful authority and reasonable excuse” for taking part in the procession. Patten should bear in mind that fair comment, albeit reasonable, must not be used as a facade to make baseless allegations against the verdict.

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In June, Jonathan Sumption explained his reasons for resigning from the HKCFA. He said it was no longer realistic to believe that eminent foreign judges on the HKCFA can sustain the rule of law in Hong Kong. Our think tank disagrees. We believe Sumption’s baton will soon be passed to other eminent foreign judges, and they will play an important role in sustaining the rule of law in the city. Hedging devices were used by Sumption when he added that other judges were less pessimistic. Neuberger responded by saying that he would remain as long as he thought he could do good. The above background may help explain why anti-China figures have launched defamatory attacks on Neuberger.

Another controversy focuses on the role of Neuberger as a trustee of Prisoners Abroad, which is committed to protecting the health, welfare and rights of British citizens imprisoned abroad. Jimmy Lai, one of the defendants in the unauthorized assembly case, is also a British citizen. Neuberger said his role as a trustee for Prisoners Abroad was not in conflict with his work as an appeal court judge in Hong Kong. But UK Conservative MP Alicia Kearns argued that there was a conflict of interest.

This controversy strengthens the contention that momentum is building for a well-planned campaign to force Neuberger to quit the HKCFA. In spite of the perceived plot to weaken the HKCFA and the Hong Kong Judiciary, we are confident that the judiciary is able to walk out of the quagmire of foreign interference. We are also confident that the rule of law will remain the foundation of Hong Kong society.

Tommy Suen is a community services officer of BPA Eastern District, a director of youth development affairs of Chinese Dream Think.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank and a district councilor.