Ted Hui is one of Hong Kong’s most wanted.
He is which were sparked by a plan to allow extradition from the special administrative region to mainland China.
Critics feared the bill was an attempt to undermine Hong Kong’s judicial independence and endanger dissidents. While it was withdrawn, Beijing responded by imposing a draconian 2020 national security law to crack down on all forms of dissent.
It forced Hui to flee to Australia while on bail for protest-related criminal charges.
Former Hong Kong democratic legislator Ted Hui. Source: Getty / South China Morning Post
“It was an outrage,” Hui told SBS News.
“Millions of people came to the streets, and there was police brutality to crack us down.
“Afterwards, there were endless prosecution cases … that’s why, at that time, I had to leave Hong Kong and go into exile.”
One of the most high-profile voices of the Hong Kong democracy movement, Hui is also part of a group of overseas activists — including Australian citizen Kevin Yam — who have had arrest warrants issued against them by Hong Kong authorities.
as a reward for information leading to their arrest.
Ted Hui has criticised the Australian judges serving on Hong Kong’s Court of Final Appeal, describing the situation as an increasingly hostile environment. Source: AFP / Anthony Wallace
Hui, who now lives in Adelaide and practices law, is critical of the Australian judges sitting on Hong Kong’s Court of Final Appeal in what he calls an increasingly hostile environment.
Hong Kong authorities implemented another security law, Article 23, earlier this year, a move the government said was needed to promote stability.
The law covers crimes such as treason, sedition, espionage, theft of state secrets, and external interference and allows for trials to be held behind closed doors.
Hong Kong’s legislature has passed a new security law — Article 23, which the government says is crucial for maintaining stability. Source: AP / Vincent Yu
“There is no freedom in Hong Kong … there’s no freedom of assembly, and when people criticise the government, the government will lock us up,” Hui said.
“All the freedom and democracy that we once enjoyed in the past has now collapsed.”
Foreign judges in Hong Kong
The involvement of foreign judges in Hong Kong dates back to 1997, when Hong Kong, a former British colony, was handed back to China. The Court of Final Appeal was established as the territory’s highest court.
Some critics say Hong Kong’s current retention of the system is a move to preserve the city’s international image and prove the independence of its judiciary from Chinese rule.
“It’s supposed to be a system that allows recognition that the Hong Kong common law system will be in sync with Western Democracies,” Hui said.
“But at the same time [the foreign judges] are lending their own reputations and integrity of their respective jurisdictions to Hong Kong’s already eroded and authoritarian regime.”
Four Australian judges continue to serve on Hong Kong’s top court despite critics calling for them to step down. Source: AFP / Peter Parks
According to the Judiciary of the Hong Kong Special Administrative Region, overseas non-permanent judges have made significant contributions to the development of Hong Kong’s judicial system.
In a statement to SBS Cantonese, its press and public relations office wrote: “They [overseas non-permanent common law judges] are all top common law experts specialising in different legal fields.”
“They have rich judicial experience and are known for their noble, professional status and reputation.”
There are seven overseas non-permanent common law judges, three British and four Australians in the Court of Final Appeal. Previous overseas judges have come from other common law jurisdictions such as Canada and New Zealand.
The Australian judges currently serving are former High Court Judges Patrick Keane and William Gummow, former High Court Chief Justice Robert French and, since May this year, the court’s newest overseas appointment, former Federal Court Chief Justice James Allsop.
All the freedom and democracy that we once enjoyed in the past has now collapsed.
Ted Hui
The retired Australian judges serve in a private capacity and are offered briefings by the Department of Foreign Affairs and Trade (DFAT) on Australia’s approach to Hong Kong’s national security legislation.
French defended his role on the Court of Final Appeal, telling SBS News in a statement also provided previously to the Sydney Morning Herald they are “good, decent people and high-quality judges who are indispensable to the Rule of Law in Hong Kong”.
“A mass resignation would be damaging to the Rule of Law and contribute to the isolation of Hong Kong from international legal thinking,” the statement added.
At least six overseas judges have resigned from the top court since Beijing’s national security law was imposed, though not all have cited this as the reason for their resignation.
In June this year, three overseas judges resigned in the space of a week.
Following his departure, former British Supreme Court Justice Jonathan Sumption wrote in the Financial Times: “Hong Kong, once a vibrant and politically diverse community, is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly.”
Jonathan Sumption, a former overseas judge on the Court of Final Appeal, says Hong Kong is “slowly becoming a totalitarian state”. Source: AAP / /
Alyssa Fong, the public affairs advocacy manager for the Committee for Freedom in Hong Kong Foundation, said these resignations have made Australian judges look increasingly isolated.
“What is it for these judges that they feel the need to stay because clearly the rule of law in Hong Kong has been curtailed,” Fong told SBS News.
“I know that Australian judges have before said to imply that it’s for the money, which is $78,000 Australian dollars per sitting that they get, would be insulting.
“It feels like the judges are either very out of touch with what has happened [in Hong Kong], or they’re turning a blind eye to what is happening.”
‘A fig leaf of due process’
While the Hong Kong Court of Final Appeal hears appeals from a range of civil and criminal matters, sentences upheld by the court include that of a teenager for shining a flashlight at a police officer during a protest and
“[Jimmy Lai] has now spent over three and half years in solitary confinement simply for being a journalist and for believing in democratic values which Australians hold dear,” Caoilfhionn Gallagher, a barrister at Doughty Street Chambers in London, who leads Lai’s international legal team told SBS News.
“He’s been the victim of lawfare … he’s already served sentences for peaceful protest activities, he’s serving a sentence on charges which are completely unfair, regarding fraud, and he’s now facing a trial under the national security law, which has been roundly condemned including by Australia, the United Nations, many countries worldwide.”
Jimmy Lai is a pro-democracy campaigner in Hong Kong who founded Apple Daily, a newspaper advocating freedom of speech. Source: AAP / Kin Cheung/AP
Gallagher describes the choice of foreign judges to sit on the Court of Final Appeal as a “difficult issue”.
“While Jimmy Lai is going through this process, we simultaneously have a fig leaf of due process being given to the system in Hong Kong,” she said.
“In my view, this is a form of judicial washing and presents Hong Kong as if it is [the] rule of law compliant instead of recognising it for what it’s become.”
According to a DFAT spokesperson, the Australian government continues to call for the repeal of the national security law in Hong Kong and “is deeply concerned by the systemic erosion of Hong Kong’s rights, freedoms, autonomy and democratic processes”.
According to estimates by the Hong Kong Democracy Council, there are more than 1,800 political prisoners in Hong Kong.
Australian-Hong Kong dual citizen Gordon Ng is among those convicted on national security charges.
In my view this is a form of judicial washing and presents Hong Kong as if it is rule of law compliant instead of recognising it for what it’s become.
Caoilfhionn Gallagher
Senator David Fawcett, the deputy chair of the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade, told SBS News: “The presence of our judges there has no bearing on how these fundamentally undemocratic and oppressive laws are applied, despite the fact that there is an agreement between the UK and China, held by the UN which is supposed to still be valid.”
“The fact that they [foreign judges] may not sit on a national security law case doesn’t resolve the fact that the national security law is cracking down on basic human rights … and so their presence there and ruling on other cases that may intersect essentially implements the national security law.”
“The rule of law is like a woven fabric — you can’t say this part of the system is fair, the rest of it may be problematic.
“It’s like cream in your coffee, it’s simply impossible to isolate it.”
This story was produced in collaboration with SBS Cantonese.
