2024.10.18

Jonathan Sumption, who resigned early this year as a non-permanent overseas judge of the Court of Final Appeal, discussed Hong Kong’s rule of law again on a legal podcast. He expressed respect for the British judge David Edmond Neuberger and agreed with his decision in the “8.18 Water-style Assembly Case,” noting it aligned with British case law. Sumption also mentioned that riots did occur in 2019 and denying them is absurd.

He also revisited his views on the National Security Law, describing the presumptions against bail and harsh minimum sentences as distasteful. However, he once believed the law would be applied moderately due to its human rights clauses, and that overseas judges could assist. He referenced an appeal court judge stating that the atmosphere in Hong Kong significantly influences judicial decisions, and the judiciary cannot “conduct guerrilla warfare” against the Chinese government. He described local judges as being in a difficult position, misunderstood by outsiders, and somewhat victims themselves. He criticized the decisions in the cases of the Hong Kong 47, Stand News, and Jimmy Lai’s fraud case as absurd and extreme.

The judiciary stated it completely disagrees with any claims that judges handle cases with political or other irrelevant considerations, or that the rule of law has been weakened, calling these “serious accusations that are not only factually incorrect but also offensive to the courts and judges.” The government strongly disagreed with Sumption’s biased opinions, stating that the courts have never been under any political pressure from the central or local government, and the rule of law has not regressed. They said any contrary conclusions drawn by anyone, for whatever reason or motive, are utterly wrong and baseless.

Judiciary: Serious accusations that are factually incorrect and offensive to the courts and judges.

The Judiciary responded by affirming that Hong Kong’s rule of law and judicial independence are protected under the Basic Law, granting the Special Administrative Region autonomous judicial power and final appellate jurisdiction. The courts operate independently without any interference.

All judges and judicial officers strictly adhere to their judicial oath, committing to principles of fearlessness, impartiality, integrity, and honesty to uphold judicial justice. They fulfill their constitutional duties by independently and professionally making decisions based solely on law and evidence, with no other considerations.

The Judiciary also noted that it does not comment on individual cases and that the reasons for court decisions are clearly outlined in public judgments.

The Judiciary respects everyone’s right to disagree with or criticize court decisions but categorically rejects any claims that judges handle cases based on political or other irrelevant considerations or that the rule of law has been undermined. These serious accusations are not only factually incorrect but also offensive to the courts and judges.

Government: Strongly disagree with Sumption’s biased opinions

The Hong Kong government says that it strongly disagrees with Lord Jonathan Sumption’s biased views regarding the rule of law, the independent judicial power, and the implementation of the National Security Law in Hong Kong.

The government emphasizes that under the Basic Law, Hong Kong enjoys independent judicial power and final appellate jurisdiction. The courts operate independently, and any reasonable, objective, and fair observer who reviews the public judgments would be convinced that the judges are independent and adjudicate strictly according to the law and evidence, without any interference and without deviating from their responsibilities.

The spokesperson continued, “Most importantly, the Special Administrative Region’s courts face no political pressure from either the central or the local government when handling national security cases or cases of any nature, and there has been no regression in the rule of law in Hong Kong. Any contrary claims, regardless of their reasons or motivations, are completely erroneous and without foundation.”

The government also notes that both the National Security Law and the National Security Ordinance explicitly state that the protection of national security must respect and protect human rights. However, as with other places around the world, these rights and freedoms are not absolute, and the International Covenant on Civil and Political Rights also clearly states that some rights and freedoms may be legally restricted when necessary to protect national security, among other things.

The government adds that journalists, like everyone else, are obligated to comply with all laws. “As long as it is not illegal, the media’s freedom to comment on and criticize government policy remains unrestricted.” According to the International Covenant on Civil and Political Rights, the media and its personnel must adhere to “special duties and responsibilities” when disseminating speech, information, and articles, including protecting national security or public order.

Interviewed on UK Legal Program by King’s Counsels

Jonathan Sumption appeared on the legal podcast “Law and Disorder,” which airs weekly and focuses on major events in the legal community. The three hosts—Nicholas Mostyn, Charlie Falconer, and Helena Kennedy—are all British King’s Counsel (KC). Mostyn is also a retired judge of the UK’s High Court, while the other two are current or former members of the House of Lords. Kennedy mentioned that barrister Margaret Ng was her classmate during their law studies.

In the episode broadcast on October 5, the hosts explicitly stated that the topic would be “Should British judges serve on Hong Kong’s Court of Final Appeal.” During the discussion, they mentioned that British judge Nicholas Phillips would not renew his term as an overseas judge on Hong Kong’s Court of Final Appeal. It is estimated that this episode was recorded around late September this year and has a duration of nearly 44 minutes.

Jonathan Sumption: wouldn’t have agreed had I known [what would develop later]

Jonathan Sumption stated that the role of overseas judges in Hong Kong’s Court of Final Appeal was a result of the 1997 sovereignty handover from Britain to China, designed to assure the world that the legal and constitutional frameworks of the old Hong Kong would continue, including protections for commerce and human rights, thus providing business confidence. The Basic Law allows the Hong Kong government to appoint overseas judges, and he served from 2019 until his resignation in June 2024, a period of five years.

Sumption mentioned that he had frequently visited Hong Kong as a commercial lawyer and found Hong Kong interesting and liked the local legal culture. The role of an overseas judge was also extremely interesting, occupying no more than one month per year, so he agreed to serve. However, he stated, “I wouldn’t have agreed, of course, if I had known at that stage [what would develop later].”

Resigned due to Perceived Judicial Bias Towards Government

Jonathan Sumption resigned early from his position as a non-permanent judge in June this year, following which he wrote articles and gave interviews criticizing the High Court’s Original Jurisdiction in the case of 47 people . He mentioned in the program that his resignation was because he felt that recent criminal cases in Hong Kong suggested that the judiciary was too partial to the government.

When asked if he had discussed his resignation with other judges before resigning, Sumption said he had, noting that the overseas judges knew that if they did not resign together, those who remained would be under pressure. He stated that the decision to stay on and its perceived impact externally is a very personal judgment. He fully respects David Neuberger, who decided to stay, and considers him a very upright judge.

Regarding Nicholas Phillips, another British judge who announced in late September that he would not continue, Sumption noted that Phillips had reached the age of 90 and was not surprised by his decision.

Sumption on the 8.18 Case: David Neuberger’s Judgment Absolutely Correct

In August this year, the Final Court ruled in the “8.18 Rolling Assembly Case,” resulting in the ultimate defeat for pro-democracy figures including Lai Chee Ying and Margaret Ng, stating that Hong Kong should not follow two UK cases. David Neuberger, who was part of the judging panel, faced criticism from British media .

Jonathan Sumption asserted that there is absolutely no doubt that Neuberger’s judgment was absolutely correct, noting that Hong Kong’s Public Order Ordinance is very similar to the UK’s Public Order Act. The same circumstances in the 8.18 case would constitute a crime in the UK as well.

Helena Kennedy questioned whether it would lead to imprisonment. Sumption expressed reservations, citing that in the UK, some cases of disorder stemming from protests also result in imprisonment, so it is not certain, but what is certain is that Neuberger’s judgment is consistent with UK precedents, and he agreed that Neuberger carefully ensured his decision was based on UK case law.

Jonathan Sumption on 2019 Riots: Unfair to Solely Blame the Police

Jonathan Sumption also referenced the protests and riots in Hong Kong in 2019. Helena Kennedy questioned him, noting he was the only person she knew who referred to the events as riots. Sumption reaffirmed that they were indeed riots. Kennedy remarked that the protests initially proceeded peacefully until the authorities intervened, using batons on protesters.

Sumption argued that this view overly simplifies the events, pointing out that the 2019 riots were indeed shocking, with severe property damage, the Legislative Council being occupied, windows smashed, and significant internal destruction. He acknowledged the police brutality but stated that it would be unfair to solely blame the police, emphasizing that the events were more than just demonstrations.

Kennedy also raised that the accusations of the pro-democracy camp inciting riots might not be true, noting that senior barrister Martin Lee, among others, did not do so. Sumption agreed that the democratic leaders did not intend to incite riots, but many of their followers did, and indeed, riots did occur. He insisted it was absurd to deny that they were riots.

Jonathan Sumption Disagrees Partially with Permanent Judge Johnson Lam’s Ruling

The host cited a ruling by Johnson Lam, a permanent judge at the Court of Final Appeal, regarding the “8.18 case”. Lam described the events of 2019 as “social unrest and public disorder, where protests rapidly deteriorated into riots, with public facilities being damaged and rampant clashes with the police, clearly showing the necessity for effective measures to maintain public order.” The host asked Sumption if this implies Lam had a degree of sympathy for the government’s response measures.

Sumption stated it was difficult to interpret Lam’s views, agreeing that Lam accurately described the events of 2019. However, Sumption disagreed with Lam’s assertion that the situation justified the subsequent series of developments. Nonetheless, he acknowledged that Lam’s judgment was regarding a public order case, hence his statements are entirely acceptable within that context.

Jonathan Sumption Initially Trusted the Mild Enforcement of the National Security Law

Nicholas Mostyn asked Jonathan Sumption if he felt any discomfort about the implementation of the National Security Law while he was serving as an overseas judge.

Sumption initially did not, explaining that the National Security Law contains very broad general expressions that allow considerable room for interpretation, and its Article 4 is a significant “saving provision” protecting human rights, especially freedom of speech. Therefore, in his view, the problem was not with the law itself but how it was enforced.

He continued to describe the presumption against bail under the National Security Law as “disagreeable” and was completely averse to the harsh minimum sentences (“I did not like at all”). However, he believed at the time it was important to see how the law would actually be applied and had reasons to be optimistic about its moderate enforcement. He reiterated that he thought the law would be enforced leniently and believed that British judges in the Court of Final Appeal could assist, a view he believed was shared by the over ten other overseas non-permanent judges at that time.

Jonathan Sumption on Hong Kong 47 Case: Trial Court’s Ruling perfectly Preposterous

In May of this year, the High Court’s Court of First Instance ruled in the case involving the democratic primary election of 47 individuals, finding the majority of the 16 non-guilty defendants guilty of conspiring to subvert state power. The verdict stated that the defendants intended to force the Chief Executive to concede to the “Five Demands,” knowing such demands were “impossible to achieve.” The verdict further stated that the defendants planned to use the rejection of the budget as a means to dissolve the Legislative Council and to unseat the Chief Executive, which it deemed illegal means.

In a podcast, Jonathan Sumption also revisited the judgment of this case, arguing that the defendants had intended to achieve a result explicitly stipulated by the Basic Law through a completely legal electoral process, yet they were accused of illegal means, which he found utterly preposterous. He compared it to saying that the British Labour Party winning an election, leading to the resignation of the previous Conservative Prime Minister, would constitute subversion, describing it as “as absurd as that.”

The host asked about the 47 defendants being charged in 2021, with 31 pleading guilty and all being detained for a long time, questioning whether these were sufficient reasons for Sumption’s resignation. Sumption said he was unaware of the reasons behind the defendants’ guilty pleas, described the delays in the case as scandalous, but noted he had been waiting for the judgment of the case.

Quotes Appeal Court Judge: Cannot Fight a “Guerrilla War” Against the Chinese Government

Jonathan Sumption continued by stating that the 47-person case was heard in the High Court by three judges, among whom there were impressive individuals (“And the judges who heard the case in the High Court included impressive people.”). The host asked whether, if they were not as outstanding as Sumption described, they might have simply judged based on their understanding of the law.

Sumption replied that he did not believe this was the case. He explained by quoting a conversation from a few years ago with a Hong Kong Court of Appeal judge whom he greatly respects. The judge had said that the atmosphere in Hong Kong significantly affects judges’ decisions because Hong Kong is part of China both politically and geographically. Therefore, the judiciary cannot operate a “guerrilla war” against the Chinese government and their effective agents in the Hong Kong government (“The judiciary cannot operate a guerrilla war against the Chinese government and their effective agents in the Hong Kong government”).

Sumption further quoted the judge, noting that aside from moral preaching and offering second passports, the West could not provide other assistance. The judge rhetorically asked what local judges could do, pointing out that ultimately, Beijing could achieve its aims through legal interpretations. Therefore, judges need to consider practical realities when making rulings.

Sumption added that Hong Kong’s local judges, unlike overseas judges, have “no exit route” and are in a difficult situation not understood by outsiders. In a sense, they are also victims of the current state of affairs (“They are, in a sense, as much victims of the current state of affairs”). He stated that it is completely wrong for the United States to seek to sanction them.

Sumption on Stand News Case: Judicial Approach to Differentiating Articles as Absurd

Jonathan Sumption continued by stating that the rulings in the 47-person case demonstrated the judiciary’s readiness to kowtow to Beijing. He then discussed the Stand News case, noting it was purely about freedom of speech, as it did not involve elements advocating violence (Editor’s note: The charges in that case included the intent to incite violence, with District Judge Kwok Wai-kin stating in his judgment that an interview on the second anniversary of the CUHK conflict “reignited violent resistance”).

During the program, Sumption mentioned that the judge attempted to differentiate between the 17 articles involved in the case, deciding which were purely expressing opinions and which, in his view, “went further.” He found this approach absurd because he regarded them all as matters of opinion (that seems to me to be a nonsensical decision, a distinction as applied to the articles in question. They were all matters of opinion.).

He noted that the judge deemed 11 articles as inciting, largely because he disagreed with the democrats’ analysis of facts. He also pointed out that the judge stated in his judgment that the two defendant editors were not practicing journalism, but opposing the government, a distinction he argued is absurd in any reasonably liberal society (That is a distinction which in any reasonably liberal society, and I would count Hong Kong in that category until the last few years, is ridiculous.). He further stated, “If newspaper editors are not allowed to criticize the government, then there is no freedom of speech in society.”

Sumption on Jimmy Lai’s Fraud Case: Judgment Admittedly Extreme

Jonathan Sumption also mentioned that besides discussing with friends in Hong Kong, he primarily learns about the city’s situation through reading the news. He noted that there seem to be many cases that could broadly be described as harassment targeting those perceived as unfriendly to the government, utilizing regulatory powers and prosecutions to complicate their lives (The use of regulatory powers to make life difficult for them and sometimes prosecutions which have the same objective.).

He referred to the case where Jimmy Lai was accused of violating the lease of the Tseung Kwan O Industrial Estate as a prime example, noting that Lai might have technically breached the lease, but the judge ruled it as fraud and convicted and sentenced Lai based on this. Sumption described the judgment as admittedly extreme, serving as an example of using the law to harass opponents. He stated that if Lai were not seen as an opponent by the government, he would not have been prosecuted for this matter, let alone convicted.