As a Hong Kong student striving to engage in the legal profession in Hong Kong, I am, as many others, tormented and agonised by the swift developments in recent years on all fronts, particularly within the judiciary.

Almost two and a half years have passed since the social unrests ignited by the proposed extradition law in Hong Kong, there we have this even more notorious National Security Law (“NSL”) enacted directly by Beijing which has so blatantly bypassed the Hong Kong Legislative Council - the Hong Kong pro-democracy legal community and the arrested persons have seen and experienced themselves far more than enough on how “flexible” the Basic Law can be for the authorities to manipulate and interpret as they please.

As such, when Lord Neuberger of Abbotsbury expressed his view on Hong Kong at the 7th May 2021 online forum, that the Basic Law “is still very much alive and effective”, one finds it rather astonishing how ivory-towered some judges could be on their benches, who do not seem to have the faintest idea about the gross impact brought by the NSL to our common law system at all levels.

With all due respect, it appears that one of his Lordship’s propositions during the online forum has shown the lack of contextual understanding of the enforcement of NSL. While it is true that Article 55 of the NSL [1] stipulated three specific situations [2] where the Office for Safeguarding National Security (“NSD”) could only exercise its jurisdiction, one must bear in mind that it is the Beijing government which we are dealing with – a government that is ruled by man, not by law. It does not matter what has been written literally to become a provision of the NSL, it is about “whom” Beijing and Carrie Lam deem as the dissidents thus their behaviours would then be “violations” to the NSL. In a nutshell, there is simply no right to dissent whatsoever in Hong Kong.

So, what is it that Beijing and Hong Kong governments are so uncomfortable with? I am afraid his Lordship would not need to “wait and see” so to figure it out - the conduct of those who have been arrested and/or charged with NSL have spoken volumes already - the pursuit of democracy and justice. Period. I wonder, with no disrespect, if this kind of law enforcement is still “not particularly objectionable”.

Initially and historically, the idea of having British judges sit in the Hong Kong Court of Final Appeal was to maintain the image of sound judicial independence and operative Rule of Law, the cornerstones of Hong Kong which are now being carved to cater to the Chinese way and redefinitions. Without the actual ability to resist the fierce intervention from Beijing, it is only by resigning altogether that the British judges could honour their last but not least service for Hong Kong’s judiciary – to stop glossing over for Beijing by their very existence; instead, to accept and voice for the fact that, Hong Kong legal system is simply malfunctioning.

If the British judges would ever aspire to effect some positive changes on Hong Kong in a legitimate and appropriate way, the time has come that their resignation letters would have done the job.

[1] “The Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region shall, upon approval by the Central People’s Government of a request made by the Government of the Hong Kong Special Administrative Region or by the Office itself, exercise jurisdiction over a case concerning offence endangering national security under this Law”

[2] (1) the case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the Region to exercise jurisdiction over the case; (2) a serious situation occurs where the Government of the Region is unable to effectively enforce this Law; or (3) a major and imminent threat to national security has occurred.

(Angie Te, law student)

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