Subject: Joinder Complaint #1B – Safeguarding the Legacy of the Overseas NPJ Tradition

To (bcc):
The Hon. Mr Justice James Leslie Bain Allsop
The Right Hon. the Lord Hoffmann
The Right Hon. the Lord Neuberger of Abbotsbury
The Hon. Mr Justice William Montague Charles Gummow
The Hon. Mr Justice Patrick Anthony Keane
The Hon. Mr Justice Robert French
The Right Hon. the Lord Phillips of Worth Matravers
The Right Hon. the Lord Collins of Mapesbury
The Hon. Mr Justice Anthony Murray Gleeson
The Right Hon. Madam Justice Beverley McLachlin
The Right Hon. Lord Sumption
The Right Hon. the Lord Reed of Allermuir
The Right Hon. Lord Hodge

Cc:
Secretariat for Complaints against Judicial Conduct
Judiciary Administrator

Dear Honourable Justices,

I write to bring to your attention Joinder Complaint #1B (22 April 2025, see attached), accusing Chief Justice Andrew Cheung and four other CFA judges of grave misconduct in their final adjudication of HKSAR v Tam Tak Chi [2025] 1 HKCFA 4. This complaint follows earlier warnings issued in Complaint #1 (9 March 2024) and Joinder Complaint #1A (31 October 2024), which were communicated to you on 27 May 2024 and 31 October 2024, respectively. Regrettably, the CFA dismissed these warnings, culminating in the misconduct realized in Tam Tak Chi [2025].

As the CFA’s first substantive ruling under the Hong Kong National Security Law (HKNSL), this decision extinguishes free expression—the “gateway right” that underpins assembly, political participation, judicial accountability, and press freedom, as affirmed by the UN Human Rights Committee. By endorsing sedition laws that criminalize peaceful opinion, the CFA has suppressed dissent and undermined the constitutional foundation of Hong Kong’s rule of law.

As esteemed members or alumni of the Overseas Non-Permanent Judge (NPJ) tradition, your legacy—and the CFA’s credibility as a global symbol of judicial independence—stands at a critical juncture.

The Stakes

In Tam Tak Chi [2025], the CFA Panel’s actions, as detailed in Joinder Complaint #1B, have far-reaching consequences:

Decisions (Grounds 1–3):

• Unlawfully reclassified colonial-era sedition laws as HKNSL offences ultra vires by bypassing legislative amendment, enabling harsh procedural applications ahead of the Safeguarding National Security Ordinance (SNSO, Cap 3601), enacted in March 2024.
• Failed to fulfill its duty under Basic Law Articles 11(2) and 39 to scrutinize the reclassified sedition offences.
• Renounced binding CFA precedents safeguarding freedom of thought and expression, endorsing an unconstitutional sedition regime.

Consequences:

• Enabled prosecutions of nearly 100 defendants, including Stand News and Jimmy Lai Chee-Ying, under extra-legislative sedition provisions prior to their institutionalization by the SNSO, violating due process and posing an existential threat to Hong Kong’s freedoms.
• Excluded essential external scrutiny by sidelining Overseas NPJs through procedural reclassification.
• Undermined constitutional foundations established by Overseas NPJs such as Sir Anthony Mason, The Hon. A M Gleeson, and Lord Neuberger, threatening Hong Kong’s rule of law and the legacy of the Overseas NPJ tradition.

This ruling signifies not just the erosion of Hong Kong’s judiciary but a direct attack on the freedoms the Overseas NPJ tradition was designed to protect.

Why It Matters

This judgment was not inevitable. Unlike jurisdictions constrained by parliamentary supremacy, Hong Kong’s judiciary is empowered by Basic Law Articles 11(2), 39, and 84 to strike down laws contravening the Basic Law or Hong Kong Bill of Rights (HKBOR). As Lord Neuberger explained in Lee Cheuk Yan [2024] HKLRD 611 at para 151:

“Hong Kong fundamental rights are constitutional ‘basic rights,’ whereas UK fundamental rights are statutory ‘Convention rights’… the powers of the UK courts are… more limited than those of the courts of Hong Kong.”

The CFA Panel’s failure to review sedition laws was not due to statutory constraint—it was a deliberate decision that undermines the Court’s role as guardian of constitutional compliance under Basic Law Article 82.

Disregard of Landmark Precedents

The Overseas NPJ tradition has been instrumental in defining this mandate, safeguarding fundamental rights through landmark rulings. However, these precedents were ignored:

• Sir Anthony Mason Ng Ka Ling [1999], Ng Kung Siu [1999], Leung Kwok Hung [2005]—affirming generous rights interpretation, narrowly construing restrictions (e.g., only on the “mode” but not the “message” of expression), and emphasizing vigilance in protecting freedoms.
• The Hon. A M Gleeson KC: Chan Chun Kit [2022], Chow Hang Tung [2024], Tsang Yam-kuen [2019]—emphasizing actus reus in criminal cases, affirming that inconsistent laws must yield, and defining grave judicial misconduct.
• Lord Neuberger: Hysan Development [2016], Lee Cheuk Yan [2024]—refining proportionality tests and reaffirming constitutional supremacy under the Basic Law.

Lord Neuberger, an active Overseas NPJ, was excluded from Tam Tak Chi [2025]. His expertise in proportionality and constitutional enforcement could have averted this grave misconduct. His exclusion reflects an alarming disregard for judicial independence and undermines the Overseas NPJ tradition as a safeguard of Hong Kong’s rule of law.

The resignations of six Overseas NPJs—Lord Sumption, Lord Collins, Madam Justice McLachlin, The Hon. A M Gleeson, The Hon. Robert French, and Lord Phillips—since the SNSO’s enactment in March 2024 further highlight the adverse impact of sedition laws on judicial integrity. In his Financial Times op-ed (10 June 2024), Lord Sumption warned:

“The rule of law is profoundly compromised… The Hong Kong National Security Law was imposed… to crush even peaceful political dissent.”

His 2025 book, The Challenges of Democracy and the Rule of Law (p. 79), further cautions:

“The rule of law is indivisible. If it is not respected across the board, it will sooner or later wither across the board.”

That warning now descends upon the CFA, signaling the collapse of Hong Kong’s constitutional order.

The Complaint and Its Urgency

Chief Justice Cheung’s refusal to address prior complaints (Complaint #1 and Joinder Complaint #1A) or conduct an en banc review enabled misconduct to fester, culminating in Tam Tak Chi [2025]—the CFA’s first substantive HKNSL adjudication, irreparably harming free expression. Judicial independence cannot shield the CFA Panel from accountability when it fails to uphold the Basic Law or administer justice “without fear or favour, self-interest, or deceit.”

Joinder Complaint #1B seeks either the resignation of the five CFA judges responsible or a meaningful public response by 22 May 2025, consistent with Tsang Yam-kuen [2019] and the Judiciary’s Guide to Judicial Conduct (2022).
Preserving the Integrity of the Overseas NPJ Tradition

The Overseas NPJ tradition is integral to the CFA’s global credibility and Hong Kong’s judicial independence. At this critical juncture, engagement by members of this tradition can help reaffirm its foundational role in defending the rule of law.

I respectfully invite you to:

• Review Joinder Complaint #1B and reflect on its implications for Hong Kong’s judiciary and the Overseas NPJ tradition.
• Consider how your voice or actions could help restore the Court’s commitment to its constitutional mandate.

These next 30 days may define how the Overseas NPJ tradition is remembered in Hong Kong’s judicial narrative. Please confirm receipt and, if willing, share any reflections or intended actions you may undertake.

Yours sincerely,

Chi-Sang Poon, PhD (潘志生博士)
Hong Kong Resident (Overseas)
Principal Research Scientist, MIT (Retired)
Date: 22 April 2025
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