The Supreme Court of Hong Kong has dismissed an appeal from ex-publisher Jimmy Lai and six other advocates for democracy to overturn their 2019 protest convictions. They had contended that during the conviction process, the presiding judge had not appraised the “operational proportionality”.
Mr Lai, aged 76, has spent over three years in solitary imprisonment serving a five-year nine-month sentence for leasing contract violations related to his now-defunct newspaper, the Apple Daily’s premises. He is currently on trial for additional charges under the National Security Law enforced by Beijing on Hong Kong in 2020.
Mr Lai, joined by six previous democracy-supporting lawmakers, was found guilty in 2021 for partaking in an unpermitted assembly during protests opposing the Hong Kong government in August 2019. Although the authorities permitted a gathering at Victoria Park in the city, they had prohibited a subsequent procession and meeting.
The defendants argued that they were aiding with the crowd dispersal following the Victoria Park rally while the authorities contended that they intentionally led a prearranged procession. Found guilty of planning and participating knowingly in an unauthorised assembly, their conviction for organisation was later overturned by the appeals court.
Mr Lai and ex-legislators Lee Cheuk-yan (67), Leung Kwok-hung (68) and Cyd Ho (70) were handed prison terms ranging between 8 to 18 months. Martin Lee (86), the founding chairman of Hong Kong’s Democratic Party, and ex-lawmakers Albert Ho (72) and Margaret Ng (76) received suspended sentences.
Hong Kong maintains a degree of independence from Beijing, possessing its own currency and central banking, as well as customs jurisdiction. It has a unique common law judicial system, featuring foreign judges from corresponding jurisdictions occupying its Supreme Court benches.
In their appeal to the Supreme Court, the defendants referenced two UK Supreme Court resolutions that are not binding, questioning if the arrests for participating in unsanctioned political protests equated to a proportionate encroachment on their fundamental rights. One resolution involved the matter of secure access zones close to Northern Ireland health facilities providing abortion services.
The panel of five judges stated that although “operational proportionality” is a recognized principle in constitutional trials in Hong Kong, it’s not suitable to apply the two precedents from the UK supreme court in Hong Kong situations. They pointed out that these decisions originated in circumstances which are not pertinent to Hong Kong, where the Basic Law, implemented following the handover of the city from Britain to China in 1997, is intended to constitutionally safeguard essential rights.
David Neuberger, ex-president of the UK supreme court and a panel member, concurred with the principal verdict. He stated, “In Hong Kong, key rights are ‘basic rights’ built into the constitution, while in the UK, key rights are statutory ‘Convention rights’ (referring to the European Convention on Human Rights). Given the fact that the UK constitution acknowledges parliamentary dominance, the United Kingdom courts’ abilities are somewhat more restricted than Hong Kong courts’.”
Meanwhile, Jonathan Sumption, a prior justice of the UK supreme court who stepped down from Hong Kong’s final appeal court in June, pointed to a gradual move towards a form of dictatorship in the city. Expressing his concerns, he said, “The rule of law is deeply undermined in any domain where the government has significant interest.”