Although Lord (Jonathan) Sumption, a former United Kingdom Supreme Court judge, has been called “the cleverest man in Britain”, it is a pity he is not also the wisest.
On June 4, 2024, he resigned as a non-permanent judge of the Hong Kong Court of Final Appeal (HKCFA), together with another British jurist, Lord (Lawrence) Collins. However, whereas Collins departed decorously enough, saying he had the “fullest confidence” in his fellow judges, Sumption left in a blaze of publicity. He claimed, following some trial verdicts of which he disapproved, that the rule of law was “in great danger”.
After 14 activists, who plotted to topple the Hong Kong SAR government and provoke a confrontation with Beijing, were convicted in the “47 case” (in May, 2024) of conspiring to commit subversion by a 3-judge panel of the High Court (a further 31 pleaded guilty, while two were acquitted), Sumption launched a scurrilous attack on the judges. He claimed their verdicts were “legally indefensible”, but worse was to come.
Sumption alleged the verdicts were a “major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds”. As if this were not vile enough, he then claimed, “Many judges have lost sight of their traditional role as defenders of the liberty of the subject, even when the law allows it.”
If this sounded demented, it was. If, as Sumption claimed, the convictions were legally indefensible and the judges were biased, the defendants could challenge the verdicts in the appeal courts. He obviously knew this, but decided to jump the gun. As he had already prejudged the issues, it was fortunate for justice that he was no longer a member of the HKCFA, which could later be required to hear any possible appeals.
The Judiciary must have been appalled that one of its members had “gone rogue”, impugning both its integrity and professionalism. In any common law jurisdiction, such conduct would be viewed as abhorrent. The Hong Kong SAR Government would have spoken for many when it condemned Sumption’s “betrayal” of his fellow judges — although, unfortunately, this was water off the duck’s back.
As Sumption, a notorious grandstander, must have intended, his remarks were greeted like manna from heaven by anti-China forces internationally. Ever since, he has been one of their pin-up boys, always eager to put the boot into Hong Kong whenever the opportunity arises (preferably on television).
However, in his latest outburst, Sumption has excelled himself. Writing in the New Statesman (Dec 20), in the wake of the conviction on national security charges of the Apple Daily founder, Jimmy Lai Chee-ying, he opened fire on all and sundry. Far from sounding like the eminent jurist he once was, he came across as a political boot boy, acting at the behest of his newly found (and fanatically Sinophobic) friends at Hong Kong Watch, the Inter-Parliamentary Alliance on China (IPAC), and the Committee for Freedom in Hong Kong Foundation (CFHKF).
Although nobody likes criticism, the rantings of a fair-weather friend are best ignored. Sumption may be brilliant, but once brilliance is detached from reality, it is worthless. The Hong Kong Judiciary has broad shoulders and can withstand the calumnies of people elsewhere who wish it ill. The judges are wholly committed to upholding the rule of law and maintaining the common law system, and will never be deflected by the likes of Sumption, Hong Kong Watch, IPAC, or the CFHKF
At the outset, Sumption claimed that because Lai had sought to make a reality of the Hong Kong Basic Law's provision that universal suffrage is the “ultimate aim” for elections to the Legislative Council (Art.68), he was “convicted of colluding with foreign forces”. This, however, was disingenuous and never part of the prosecution's case. Lai was not prosecuted for seeking universal suffrage, but for trying to bring about what was described as “China implosion”, thereby endangering national security. The conspiracy involved colluding with foreign forces with a view to wrecking China's economy, overturning its political system, and causing harm through the imposition of sanctions, blockades, and other hostile measures. Regrettably, Sumption failed to explain this clearly to his readers, focusing instead on a red herring.
Although, as he acknowledged, the British-era Hong Kong government enacted the sedition law (and was never averse to invoking it), Sumption failed to grasp the essentials of the prosecution case, leaving his readers in the dark (if not confused). What he should have told them was that the judges concluded that Lai, through 161 Apple Daily op-eds, stepped outside the boundaries of legitimate journalistic activity by seeking to stoke hatred and contempt of the Hong Kong SAR Government, thus provoking disaffection against it. He actively campaigned to undermine the legitimacy or authority of the national and regional governments and their institutions, intending thereby to harm their relations with the local population. Had Sumption explained this, his readers would have had no difficulty in appreciating that this was beyond the pale and why Lai was convicted of conspiring to publish seditious articles.
Sumption also seized the opportunity to renew his criticisms of his former colleagues in the Hong Kong Judiciary, branding them “repressive”. He even ratcheted up his earlier attack on the three judges from the “47 case”, accusing them of being “an extreme example of judicial repression”. Gross discourtesy apart, his remarks betokened an individual whose judgment is gravely warped, and whose temperament is unsuited to the rational analysis of the issues of the day.
Although the three judges who convicted Lai had heard the evidence and were sure of his guilt, Sumption, as in the “47 case”, sought to second-guess their findings. Whereas the prosecution's case was considered overwhelming, he dismissed key pieces of evidence upon which the judges relied as, for example, “exceptionally thin” and “clutching at straws”.
If this is so, Lai will have reasonable grounds for appealing to the Court of Appeal. His right of appeal, together with the other fair trial rights, is guaranteed by the International Covenant on Civil and Political Rights (which applies in Hong Kong by virtue of the Basic Law, Art.39). He can exercise this right notwithstanding Sumption telling his readers that the rights contained in the ICCPR are now “ignored” (which even Lai knows is untrue).
Moreover, having queried rhetorically why Hong Kong’s judges display “palpable judicial hostility to defendants in politically sensitive trials”, Sumption blamed it all on the “oppressive atmosphere” now prevailing. Although this was a convenient soundbite, his readers were not informed that in all criminal cases, whether or not involving national security, fundamental common law principles apply. In trials, there is a presumption of innocence, a right to counsel, a right of a defendant to cross-examine prosecution witnesses and give and call evidence to show innocence (exactly what Lai did), and a requirement that unless the prosecution can prove guilt beyond a reasonable doubt, a defendant must be acquitted.
Moreover, despite Sumption’s cheap slurs, the judges, as in his home jurisdiction (England and Wales), administer justice “without fear or favor” (the judicial oath) and convict only if the evidence suffices.
Although Sumption conceded that the rule of law “applies in principle”, he alleged it was inapplicable “to issues in which the Central Government has a political agenda”. If this were true, it would mean that the judges are politically biased and prepared to bend the rules in particular cases, a repugnant suggestion no judge would recognize.
However, it is not true; the Hong Kong Judiciary’s qualities are recognized globally by objective observers. They will, for example, have played a significant part when, in its Rule of Law Index 2025, the New York-based World Justice Project, which objectively evaluates rule of law data worldwide, ranked Hong Kong as 24th out of the 143 jurisdictions surveyed, no mean feat in anybody’s book (particularly following the smears of Sumption and his ilk).
Although nobody likes criticism, the rantings of a fair-weather friend are best ignored. Sumption may be brilliant, but once brilliance is detached from reality, it is worthless. The Hong Kong Judiciary has broad shoulders and can withstand the calumnies of people elsewhere who wish it ill. The judges are wholly committed to upholding the rule of law and maintaining the common law system, and will never be deflected by the likes of Sumption, Hong Kong Watch, IPAC, or the CFHKF.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
