Is it time for UK judges leave HK?
Questions have been raised about a ruling with which Lord Reed concurred
A Hong Kong court relied on a ruling by the UK’s most senior judge to justify jailing a former pro-democracy member of the territory’s parliament, The Times reports today. It quotes MPs as saying that UK judges should no longer sit in Hong Kong’s Court of Final Appeal.
No British judge was involved in the case of Fernando Cheung, who was sentenced to three weeks’ imprisonment by a senior magistrate at the West Kowloon Court this month for contempt of the territory’s legislative council (“LegCo”) at a sitting in 2020.
Before being carried out of a meeting by security guards, Cheung had shouted loudly but intermittently over the course of 44 minutes. He had been an opposition member of LegCo at the time.
Cheung pleaded guilty but had argued unsuccessfully for a non-custodial sentence.
Surely legislators enjoy freedom of speech? Section 3 of the relevant ordinance says:
There shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court or place outside the Council.
But the same ordinance also includes section 17, which says:
Any person who…
(c) creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting,
commits an offence and is liable to a fine [of $10,000] and to imprisonment for 12 months...
Which provision trumps the other? That question came before the Court of Final Appeal in another case last year. It involved alleged conduct by a different legislator at a committee meeting in 2016.
Leung Kwok Hung, a member of the housing committee, was questioning a government official. When the official declined to produce documents, Leung walked over and snatched a folder of confidential papers from the desk in front of him and passed it to a colleague. The meeting was suspended when Leung refused to give back the documents. His colleague read them before returning the folder.
An appeal court ruled that the privilege contained in section 3 did not protect a legislator from being caught by the offence in section 17. Lord Pannick QC, appearing for Leung, failed to persuade the Court of Final Appeal to overturn an earlier appeal ruling.
Speaking for a five-judge court, Mr Justice Fok noted that section 3 was not drafted in the broad terms seen in the Bill of Rights 1689:
The protection of freedom of speech and debate in LegCo is self-evidently an important right. It enables members of LegCo to advocate opinions freely and robustly and without inhibition due to the fear of legal proceedings for such speech and debate. It would be a significant inroad into that freedom if a member of LegCo were subject to legal proceedings for things said by him in the course of sometimes heated political debate.
Equally… the provisions regulating admission and creating offences are designed to achieve the statutory purpose of creating a secure and dignified environment conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance.
Accepting the appellant’s broad argument in the present case that, merely because he was present at, and had been participating in, a committee meeting of LegCo, he had absolute immunity for his actions however and whenever occurring and even if they amounted to a disruption caught by section 17(c), would be to extend the privilege of free speech and debate beyond the purpose for which it is granted.
The other four members of the court agreed and had nothing to add. The most junior member of the court, and one of the two “non-permanent” members, was Lord Reed of Allermuir, president of the UK Supreme Court.
Since Leung’s trial had not yet concluded, the court said nothing about whether conduct of this nature would justify a prison sentence.
the judgment did not distinguish possible peaceful actions by lawmakers from violent ones. Hence, the ruling could potentially allow the prosecution, which is headed by a political appointee of Beijing, to charge lawmakers by interpreting their actions as acts of parliamentary contempt.
But the court was not asked to consider whether a “peaceful” interruption would be privileged.
Referring to the former legislator who was jailed this month, Lai wrote that
Cheung’s case serves as a dreadful precedent: legislators can now be jailed for peaceful expression in legislative meetings.
I don’t suppose that the decision of a magistrate in Hong Kong creates a precedent in the sense used by lawyers. On my reading of the Leung ruling, legislators can still say what they like so long as they do not create a disturbance that interrupts the proceedings.
This is Lai’s conclusion:
It is time to reflect on the roles and performance of UK judges presiding on Hong Kong’s top court based on substantive evidence and keep constructive debate on their possible responsibilities in the future.
That strikes me as perfectly fair. There will almost certainly come a point when involvement by serving UK judges in the Hong Kong Court of Final Appeal does more harm than good. But I don’t think that Reed’s concurrence on a matter of statutory interpretation means that point has now been reached.
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