Top British judge hears Hong Kong protest case amid foreign judges row

FILE PHOTO: Hong Kong politician Martin Lee and Founder of Next Media Jimmy Lai march during a protest to demand authorities scrap a proposed extradition bill with China, in Hong Kong, China March 31, 2019. REUTERS/Tyrone Siu/File Photo

By James Pomfret and Jessie Pang

HONG KONG (Reuters) - A senior British judge on Monday heard a protest-related case in Hong Kong involving seven high profile democrats, fuelling a row over whether foreign judges should continue to sit on the city's highest court amid a national security crackdown.

David Neuberger, a former head of Britain's Supreme Court, was one of a panel of five judges on Hong Kong's Court of Final Appeal (CFA) to hear an appeal for an unauthorised assembly case involving seven prominent democrats including barrister Martin Lee and media tycoon Jimmy Lai.

The hearing comes just weeks after the resignations of two British judges from the CFA, Lawrence Collins and Jonathan Sumption. Sumption explained his resignation by saying Hong Kong was becoming a totalitarian state and the city's rule of law had been "profoundly compromised".

The appeal centred on whether the court should follow two non-binding decisions of Britain's Supreme Court to apply the principle of "operational proportionality" - whether a conviction is proportionate to fundamental human rights protections.

Neuberger at one point asked a defence lawyer to clarify his views on proportionality and whether the defendants had a "reasonable excuse" to participate in what was a peaceful procession away from a downtown park after a protest in August 2019.

Other defence lawyers argued the police had taken no action on the day, the seven had caused no disruptions and had been singled out amongst thousands of other protesters.

"These are protected rights and the court is bound to protect those rights," argued one defence lawyer, Robert Pang.

Hong Kong's mini-constitution, the Basic Law, guarantees the right of public assembly, as does its Bill of Rights.

The case comes amid a years-long national security crackdown in Hong Kong following mass pro-democracy protests in 2019, where opposition democrats have been jailed, and liberal civil society and media outlets shut down.

Some lawyers and diplomats say the foreign jurists on Hong Kong's top court lends credibility to the city's rule of law at a time when critics including the U.S. government say national security laws have been used to silence dissent.

One the defendants in this case, 86-year-old Martin Lee, helped launch Hong Kong's Democratic Party in the 1990s and is a veteran pro-democracy figure. Jimmy Lai, 76, is in prison and facing national security charges for colluding with foreign forces that could see him jailed for life.

Lee was earlier given an 11-month suspended sentence.

Others defendants presented in the court including two former Alliance leaders Albert Ho, 72 and Lee Cheuk Yan, 67. They were arrested and charged in another national security case and have been remanded in custody since 2021.

Neuberger earlier told Reuters he said he would remain on Hong Kong's highest court to "to support the rule of law in Hong Kong, as best I can."

The case resumes later on Monday.

(Reporting by James Pomfret and Jessie Pang; Editing by Lincoln Feast.)