Ruling by British judges 'justified jailing of Hong Kong protestor'

British judges sitting in Hong Kong Court of Final Appeal give ruling ‘that justified jailing of pro-democracy MP on contempt charges’ after he carried out anti-Beijing protest in territory’s parliament

  • Eight UK judges still sit in the Hong Kong Court of Final Appeal under agreement
  • In September, five judges made judgment over law protecting peaceful protest
  • But commentators say judgment has ‘justified’ jailing of anti-Beijing protestor
  • Former MP Fernando Cheung has been jailed for three months for contempt
  • He stood up and chanted anti-Beijing sentiment for 45 minutes during a meeting 

Why do UK judges sit in Hong Kong’s top court? 

Hong Kong was established as a British colony in 1841 after being ceded by the Qing Dynasty following the so-called ‘Opium Wars’.

But more than 140 years later, during diplomatic negotiations with China in 1984, Britain agreed to transfer Hong Kong to China in 1997.

As part of the agreement, China guaranteed  Hong Kong’s economic and political systems would remain in place for 50 years after the transfer.

Until 1997 Hong Kong’s final appeal court was the Judicial Committee of the Privy Council in London, whose judges were the members of the Appellate Committee of the House of Lords. 

Following the handover, the final appeal court became the Hong Kong Court of Final Appeal.

It was agreed the House of Lords would provide two serving Law Lords to sit on the court – as part of the UK’s continuing commitment to safeguarding the rule of law in Hong Kong.

This responsibility transferred to Supreme Court judges when it was established in 2009. And the Supreme Court still provides these judges today.

Serving judges do not receive any additional remuneration for their work in Hong Kong, but a fee is paid to the Supreme Court. 

The Court of Final Appeal also includes retired judges from the UK and from other common law jurisdictions, including Australia and Canada.  

However, with Beijing tightening its grip on Hong Kong, there have been calls for the UK to reconsider its agreement.

Some, including the Supreme Court, argue the judges should continue ‘in their commitment to safeguard judicial independence and the rule of law in Hong Kong’.

But others warn the judges will ‘be required to enforce the whims of the Chinese Communist Party’.

In a Times leader article earlier this month, the paper called for the judges to ‘resign without delay’

It said: ‘As long as eminent justices such as Lord Sumption give the court their imprimatur, China is able to maintain the fiction that Hong Kong remains a common law jurisdiction and not the puppet regime of an autocratic state. 

‘This in turn undermines any diplomatic pressure Britain and its allies may attempt to bring to bear.’

An anti-Beijing protestor has been jailed for contempt in Hong Kong after a controversial ruling by senior UK judges on laws originally designed to protect peaceful pro-democracy demonstrations.

Eight UK judges still sit in the Hong Kong Court of Final Appeal due to agreements made in the handing over of the territory to China in 1997.

In September five judges, including the president of the UK’s Supreme Court, Lord Reed, ruled on legislation protecting peaceful protests by members of Hong Kong legislative’s council.

The legislation’s aim is to provide immunity from criminal prosecution for members of the council, known as LegCo., who engage in non-violent protest in the chamber.

But in September’s ruling, the judges agreed that only the words of the members of the council were immune from prosecution, rather than their actions.

It is claimed that the ruling has now been used to ‘justify’ the imprisonment of former Labour Party member of the Hong Kong legislative council, Fernando Cheung.

Cheung, 64, was jailed earlier this month for three weeks after pleading guilty to charges of contempt.

He had chanted anti-Beijing slogans in the chamber for 45 minutes in 2020, then resigned from his position.

The case has led to criticism of the September ruling, with one former Tory cabinet minister warning the UK judges were being ‘used as a fig leaf for an (China’s) oppressive regime’. 

The row comes after Cheung pleaded guilty at West Kowloon Court earlier this month to a contempt charge under the Legislative Council (Powers and Privilege) Ordinance.

It followed a chaotic meeting at the LegCo in 2020, when he chanted slogans to mark his disapproval of a pro-establishment leader taking over a House Committee meeting.  

According to the South China Morning Post, an English speaking Hong Kong-based newspaper, which has been accused of becoming increasingly more pro-Beijing in recent years, acting chief magistrate Peter Law Tak-chuen said the former lawmaker’s conduct had tarnished Legco’s reputation and contributed to ‘a decline of civility’. 

Law is reported to have said: ‘Mr Cheung had shouted in a loud voice over some time in a continuous and persistent manner…His action was more than a minor inconvenience to his colleagues.’ 

Cheung is reported to have intermittently shouted over a 44-minute span during the meeting, including at the chair – pro-establishment politician Starry Lee Wai-king.

Video footage of the meeting showed Cheung repeating the phrase ‘Starry Lee abused her powers’ in front of her.  Cheung was subsequently ejected from the meeting room.

In court, Cheung said he would only admit the charge but not wrongdoing, as he maintained his prosecution was driven by political motives.

In a statement read out in the court, he said: ‘For me, Legco is an important structure that facilitates improvements in society. I will never hold Legco in contempt.’

It is claimed that the ruling, which some argue has ‘weakened’ protections for protesters in Hong Kong, has now been used to justify the imprisonment of Fernando Cheung. Cheung, 64, a former Labour Party member of the Hong Kong legislative council, was jailed earlier this month for three weeks after pleading guilty to charges of contempt

In September five judges, including the president of the UK’s Supreme Court, Lord Reed (pictured), ruled on legislation protecting peaceful protests by members of Hong Kong legislative’s council

Anger grows at Zero Covid policy in Hong Kong that forces anyone with virus to isolate in hospital even if they have no symptoms 

Hospitals in Hong Kong reached 90 percent capacity on Thursday while Covid-19 quarantine facilities were at bursting point, authorities said, as the city grapples with a record number of new infections while adhering to China’s ‘Zero-covid’ strategy.

Under the strict Covid rules in China, any person in the city who is infected with Covid-19 must be admitted to a hospital or community isolation facility.

This has meant even asymptomatic people and those with mild conditions have been sent to hospitals or quarantine centres, although the government is now adjusting its strategy as the healthcare system is overwhelmed. 

Hong Kong authorities have said new cases have multiplied 60 times so far this month. Chinese President Xi Jinping said the city’s ‘overriding mission’ was to stabilise and control the outbreak. 

With anger growing at the government, Hong Kong reported 6,116 new coronavirus infections on Thursday – a number expected to rise over 7,000 on Friday. 

Officials reported 24 new deaths over the past week, and the city has now confirmed a total of 16,600 infections, with 219 deaths.

To ease the strain on the city’s healthcare system, officials said they will take a different approach to hospitalization and isolation policies and allow some patients to be discharged sooner. 

Under the new approach, people who are infected but present mild symptoms in hospitals and government-run isolation facilities will be allowed to leave sooner.

Release will be granted after just seven days if a patient tests negative on the seventh day and does not live with anyone in a high-risk group, such as senior citizens, pregnant women or immunosuppressed people.

Those who do not meet these criteria must complete the full 14-day isolation period or wait until they test negative, according to health officials. 

Pictures on Friday showed patients being treated on beds outside a hospital in the city’s working-class neighborhood of Sham Shui Po. 

Lam Foon, 98, was interviewed while propped up and swaddled in soggy woollen blankets in a hospital bed just outside the entrance to Hong Kong’s Caritas Medical Centre, waiting for tests to confirm her preliminary positive result for COVID-19. 

‘I don’t feel so good,’ she told Reuters news agency through a surgical mask, next to a similarly wrapped patient wearing a mask and face shield. 

Lam was one of dozens of patients lying in the parking lot of Caritas on Thursday, after there was no more room inside the hospital that serves 400,000 people in the working-class district of Cheung Sha Wan on the Kowloon peninsula. 

Temperatures dipped to 15 degrees Celsius (59 Fahrenheit) amid some rain. 

The conviction means Cheung is the first lawmaker in Hong Kong to be convicted of contempt.

He was prosecuted under a law initially designed to immunise members of China’s legislature from criminal sanctions while exercising their freedom of speech and debate.

But, according to The Times, commentators say the legislation was ‘weakened’ by September’s ruling by the Hong Kong Court of Final Appeal. 

That ruling, given by five judges, including Lord Reed, president of the UK Supreme Court accepted that ‘the protection of freedom of speech and debate in LegCo is self-evidently an important right’.

And it said it should ‘enable members of LegCo to advocate opinions freely and robustly and without inhibition due to the fear of legal proceedings for such speech and debate’.

The legislation, it added, was made with the ‘purpose of creating a secure and dignified environment conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance’.

But the ruling found that only the words of members of the council said in the chamber were immune from prosecution.

Actions considered to have created a disturbance were not protected under the law, it said.

This, observes fear, has created a ‘dangerous precedent’ and, with Cheung’s imprisonment, shows the ruling could be used to stifle protests by other members of the council.

Speaking to The Diplomat magazine, Eric Lai, a Hong Kong law fellow at Georgetown University in Washington DC, said: ‘Cheung’s case serves as a dreadful precedent.

‘(Parliamentarians) can now be jailed for peaceful expression in legislative meetings.

‘This substantively diminishes the effectiveness of separation of powers in Hong Kong’.

Meanwhile, Tory MP Damian Green, told The Times: ‘If UK judges are now being used as a fig leaf for an oppressive regime in Hong Kong, then they should absolutely be withdrawn as soon as possible’.

Former Tory-leader Iain Duncan Smith, speaking to The Times said: ‘It does astonish me that British judges are prepared to sit in a system that has become completely infected by the autocratic and abusive laws now coming from China.’ 

Hong Kong was established as a British colony in 1841 after being ceded by the Qing Dynasty following the so-called ‘Opium Wars’.

But more than 140 years later, during diplomatic negotiations with China in 1984, Britain agreed to transfer Hong Kong to China in 1997.

As part of the agreement, China guaranteed  Hong Kong’s economic and political systems would remain in place for 50 years after the transfer.

Until 1997 Hong Kong’s final appeal court was the Judicial Committee of the Privy Council in London, whose judges were the members of the Appellate Committee of the House of Lords. 

Following the handover, the final appeal court became the Hong Kong Court of Final Appeal.

It was agreed the House of Lords would provide two serving Law Lords to sit on the court – as part of the UK’s continuing commitment to safeguarding the rule of law in Hong Kong.

This responsibility transferred to Supreme Court judges when it was established in 2009. And the Supreme Court still provides these judges today.

Serving judges do not receive any additional remuneration for their work in Hong Kong, but a fee is paid to the Supreme Court. 

Eight UK judges still sit in the Hong Kong Court of Final Appeal due to agreements made in the handing over of the territory to China in 1997.

The Court of Final Appeal also includes retired judges from the UK and from other common law jurisdictions, including Australia and Canada.  

However, with Beijing tightening its grip on Hong Kong, there have been calls for the UK to reconsider its agreement.

Some, including the Supreme Court, argue the judges should continue ‘in their commitment to safeguard judicial independence and the rule of law in Hong Kong’.

But others warn the judges will ‘be required to enforce the whims of the Chinese Communist Party’.

In a Times leader article earlier this month, the paper called for the judges to ‘resign without delay’

It said: ‘As long as eminent justices such as Lord Sumption give the court their imprimatur, China is able to maintain the fiction that Hong Kong remains a common law jurisdiction and not the puppet regime of an autocratic state. 

‘This in turn undermines any diplomatic pressure Britain and its allies may attempt to bring to bear.’

In November 2020, it was reported that Britain is considering pulling its judges from the Hong Kong Court of Final Appeal.

Then Foreign Secretary Dominic Raab said he was considering the move over a security law law imposed on the territory by Beijing, which he warned was a breach of the 1984 Sino-British Joint Declaration that paved the way for the handover.

The Government also objected to new rules imposed by mainland China to disqualify elected legislators in Hong Kong, and to what it describes as retribution by the territory’s executive against political opposition and silencing of dissent.

‘This has been, and continues to be, the most concerning period in Hong Kong’s post-handover history,’ Raab wrote in a foreword of a November 2020 report on Hong Kong.

On judges sitting in Hong Kong courts, he said at the time: ‘I have begun consultations with Lord Reed, President of the UK Supreme Court, concerning when to review whether it continues to be appropriate for British judges to sit as non-permanent judges on the Hong Kong Court of Final Appeal.’

The Hong Kong government hit back at the time, describing the report as ‘sweeping attacks and groundless accusations’ adding they were ‘irresponsible remarks’.

The Chinese foreign ministry’s commission in Hong Kong  also expressed ‘strong indignation’ at the report, according to the official Xinhua news agency.

Speaking about the situation in August last year, Lord Reed said: ‘At this time, our shared assessment is that the judiciary in Hong Kong continues to act largely independently of government and their decisions continue to be consistent with the rule of law.

‘There also continues to be widespread support amongst the legal community in Hong Kong for the participation of UK and other overseas judges in the work of the Hong Kong Court of Final Appeal

‘Under these circumstances, Lord Hodge and I remain engaged in the Court of Final Appeal with the full support of the Foreign Secretary and the Lord Chancellor.’

A profile of the UK judges sitting in the Hong Kong Court of Final Appeal

1) Lord Sumption: A Supreme Court judge between 2012 and 2018. He was the first Supreme Court judge to be appointed without having served as a full-time judge. He previously served as a barrister, appearing on behalf of the Government in the Hutton Inquiry into the death of MOD biological warfare expert Dr David Kelly in 2003. Alongside his legal work, he is also an author and medieval historian. Currently, he serves as a Non-Permanent Judge on the Hong Kong Court of Final Appeal

2) Lord Hoffman: Served as a law lord between 1995 to 2009. Currently, he serves as a Non-Permanent Judge on the Hong Kong Court of Final Appeal. Born in South Africa, he is the son of Leonard Hubert Hoffmann, who co-founded what would become Africa’s largest law firm ENSafrica (Edward Nathan Sonnenbergs). As a law lord he failed to disclose connections to Amnesty International when hearing an appeal brought by Augusto Pinochet, the former dictator of Chile. 

3) Lord Walker of Gestingthorpe: He was one of the first Supreme Court judges, sitting on the bench from 2009 to 2013. He also sat in the House of Lords as a crossbencher until his retirement from the House in March last year.  Currently, he serves as a Non-Permanent Judge on the Hong Kong Court of Final Appeal.

4) Lord Reed of Allermuir: He is the current President of the Supreme Court. Originally from Scotland, he was the principal judge in the Commercial Court in Scotland, before being promoted to the Inner House of the Court of Sessions in 2018. He has heard non-national security law cases in the Hong Kong court in the past six months.

5) Lord Neuberger of Abbotsbury: A former president of the Supreme Court, serving from 2012 to 2017. He was Lords of Appeal in Ordinary when the Supreme Court was established in 2009, at which point he became Master of the Rolls – the second most senior judge in England and Wales. Currently, he serves as a Non-Permanent Judge on the Hong Kong Court of Final Appeal and the Chair of the High-Level Panel of Legal Experts on Media Freedom 

6) Lord Phillips of Worth Matravers: He was the first president of the Supreme Court, after its foundation in 2009. He sat on that bench from 2009 to 2012. He has been Master of the Rolls and lord chief justice, the most senior positions on the Bench in England and Wales. In March 2012, the Government of Hong Kong appointed Lord Phillips as a Non-Permanent Judge on the Hong Kong Court of Final Appeal.

7) Lord Collins of Mapesbury: He served as a Supreme Court judge from 2009 to 2011. He was only the second solicitor to be appointed to the High Court bench in England and Wales. He was formerly a partner at British law firm Herbert Smith. Currently, he serves as a Non-Permanent Judge on the Hong Kong Court of Final Appeal

8) Lord Hodge: Deputy president of the Supreme Court and the only other judge, alongside Lord Reed, to sit as a judge part time under the agreement in the Hong Kong Court of Final Appeal. He is a Scottish judge who has heard non-national security law cases in the Hong Kong court in the past six months.  He assumed office on 1 January 2021 to fill the vacancy left by Australian judge James Spieglman who had quit because of the concern over the controversial security enacted by China.

 

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