Prologue Journal

Explainer: Why do foreign judges sit on Hong Kong’s top court?

• prologu5
• 06/15/202406/15/2024

Hong Kong Free Press

Since its establishment in 1997, Hong Kong’s Court of Final Appeal (CFA) has sporadically extended invitations to judges from other common law jurisdictions to join its appeal panel.

This practice has been regarded as testament to the international community’s trust in the city’s judicial system, which has helped Hong Kong maintain its reputation and credibility as a global financial and business hub.

Nevertheless, in recent years, the engagement of overseas judges has become a subject of controversy over a series of resignations following the implementation of a Beijing-imposed national security in June 2020. The UK also considered withdrawing British judges from Hong Kong’s top court.

Notably, the remarks by UK judge Lord Sumption, who recently quit the CFA, sparked anger from the Hong Kong and Beijing authorities. By claiming that Hong Kong was “slowly becoming a totalitarian state,” Sumption was acting as “a tool of the UK’s political manoeuvring and a pawn of foreign interference trying to destroy Hong Kong’s stability,” China’s liaison office in Hong Kong said on Friday.

Against a backdrop of controversy and growing debate within the community regarding the presence of foreign judges on Hong Kong’s top court, HKFP delves into the background and intricacies of this long-standing practice.

Why does the CFA host overseas judges?

The unique structure of Hong Kong’s final appellate court is rooted in the Basic Law, the city’s mini-constitution. Established on July 1, 1997, the Court of Final Appeal (CFA) replaced the Judicial Committee of the Privy Council in London as the city’s apex court when British colonial rule came to an end. 

The Basic Law outlined the city’s post-1997 judicial system – consisting of the CFA, the High Court, District Court, magistrates’ courts and other special courts – and stated that the common law system previously practised would remain.

The CFA was given the power of final adjudication, and the ability to invite judges from other common law jurisdictions to sit on the CFA as required. 

Appeals at the CFA are heard by the chief justice, three permanent judges nominated by the chief justice and a non-permanent judge (NPJ), either from Hong Kong or from another common law jurisdiction, who is also selected by the chief justice. 

Stuart Hargreaves, a law professor at Chinese University of Hong Kong (CUHK), described Hong Kong’s practice of importing judges as “unusual, but not unprecedented.” In an article published in the Asian Journal of Comparative Law in 2022, Hargreaves said it was a solution adopted by “some poor or small states” to tackle “severe capacity limitations in legal talent.” Elsewhere, non-local judges may also be engaged in post-conflict scenarios, Hargreaves said. 

In the case of Hong Kong, however, inviting an overseas judge to be part of a five-member final appeal panel was crucial because they could bring “enormous judicial experience and wisdom” to the CFA. 

CFA Permanent Judge Joseph Fok said at the Commonwealth Law Conference in 2017 that prior to 1997, no judges in Hong Kong had the experience of handling cases in a final appellate court, which he said was “not simply a second court of appeal reviewing again the decision of a trial court.” 

NPJs from other common law jurisdictions were therefore important, especially during the early years of the CFA’s existence, Fok said. 

“They are all judges who have had significant influence in shaping the jurisprudence of their own jurisdictions and they bring that wealth of experience to bear when they participate in the deliberations and decisions of the Court,” he said.  

Overseas NPJs can also benefit Hong Kong’s top court by offering their fields of specialty in law, Fok said, adding they can review whether the CFA’s decision was in line with the general principles of common law.

Government officials and legal figures in Hong Kong have often cited the presence of overseas judges as proof of international confidence in the independence of Hong Kong’s judiciary. 

But in light of the recent controversy sparked by the resignations of overseas judges, pro-establishment barrister and government advisor Ronny Tong questioned whether the city still needed them. He said it was “ludicrous” to suggest that Hong Kong’s judicial independence depended on the presence of one or two British judges. 

He also suggested that because foreign judges owed allegiance to other countries, they should not preside over national security cases, particularly if their countries were “hostile to China or Hong Kong.” 

“At the end of the day, one is forced to arrive at the logical conclusion that foreign judges sitting on our Court of Final Appeal is more for perception, or for show, if you like, rather than actually making a difference in the exercise of the judicial function,” Tong wrote in an op-ed published in the South China Morning Post on Tuesday. 

The recent resignations also came three weeks after NGO, the Committee for Freedom in Hong Kong Foundation, released a report claiming “foreign judges are lending legitimacy to Beijing’s crackdown on political freedoms in Hong Kong,” as they called on them to step down.

Who can be an overseas judge?

Under the Hong Kong Court of Final Appeal Ordinance, an overseas NPJ must be a judge or a retired judge of a court of unlimited jurisdiction in either civil or criminal matters in another common law jurisdiction. They should also ordinarily reside outside Hong Kong. 

The ordinance stipulates that an overseas NPJ should never have served Hong Kong’s High Court, District Court or magistrates’ courts. 

At present, Hong Kong has eight NPJs sitting on the city’s apex court on an ad hoc basis. They are from the UK, Australia and Canada. But Canadian judge Beverley McLachlin announced earlier this week that she will step down when her term ends next month. 

Name	Year of birth	Nationality	Date of first appointment	Expiry date of present appointment
Leonard Hoffmann	1934	British (born in South Africa)	January 12, 1998	January 11, 2025
David Neuberger	1948	British	March 1, 2009	February 28, 2027
Nicholas Phillips	1938	British	October 1, 2012	September 30, 2024
William Gummow	1942	Australian	July 29, 2013	July 28, 2025
Robert French	1947	Australian	May 31, 2017	May 30, 2026
Beverley McLachlin	1943	Canadian	July 30, 2018	July 29, 2024
Patrick Keane	1952	Australian	April 6, 2023	April 5, 2026
James Allsop	1953	Australian	May 24, 2024	May 24, 2027

Together with a separate panel of Hong Kong NPJs, the total number of NPJs at the CFA is capped at 30, all of whom have been appointed by the chief executive based on the recommendation of the Judicial Officers Recommendation Commission. 

What kind of cases do they rule on?

There are no restrictions on the type of cases an overseas judge may preside over. In January, Australian Justice Anthony Gleeson contributed to a unanimous decision that quashed the acquittal of activist Chow Hang-tung on a charge of inciting others to take part in an unauthorised assembly to commemorate the 1989 Tiananmen crackdown. He later declined to renew his tenure, citing his age.

Last September, the CFA ruled that Hong Kong must create a legal framework for same-sex partnerships. Justice Patrick Keane, also from Australia, wrote in the judgement that the absence of legal recognition of same-sex relationships was “an occasion of arbitrary interference with the right to privacy and private life.”

But, in two landmark appeals concerning the Beijing-imposed national security law, no overseas judges were involved. 

The NPJ who heard the case of Lui Sai-yu, a student who pleaded guilty to inciting secession under the national security law but was denied a customary sentence discount, was Patrick Chan from Hong Kong. The CFA ruled last August that a guilty plea could not be used in mitigation to reduce jail terms below the five years minimum for security law offences deemed “serious.”

Chan was also on a panel that ruled media tycoon Jimmy Lai must remain behind bars pending trial, in February 2021. The CFA said at the time that a lower court judge had failed to properly interpret a new and more stringent threshold for granting bail in national security cases. 

How long do foreign judges serve in Hong Kong?

The term of an NPJ lasts three years. Their tenure may be extended for one or more terms by the city’s leader in accordance with the chief justice’s recommendation. 

How often do foreign judges come to Hong Kong?

Permanent Judge Fok estimated in 2017 that an overseas NPJ would come to Hong Kong and sit on the CFA once every 12 to 18 months. His estimation was based on the number of final appeals at the CFA annually, and the number of overseas NPJs at the time. 

According to Fok, an overseas NPJ would typically spend around four weeks in the city, spending the first two hearing the appeal, with the latter two weeks reserved for writing judgements.

How much are foreign judges judges paid?

The Hong Kong government engages NPJs on an ad hoc basis. Remuneration for their period of engagement is calculated proportionally based on the monthly salary of the CFA’s permanent judges, which is currently HK$399,950. 

The figure reflected a 3.62 per cent pay rise proposed by the government and approved by the legislature last year. The authorities cited  a report by the Judicial Committee last July that said national security cases and those linked to the 2019 protests posed “mounting challenges” to the Judiciary’s resources and manpower.

An investigation by the UK’s Independent also showed that judges were provided with first class flights and luxury accommodation.

Do foreign judges’ swear oaths of allegiance?

Both local and overseas judges are required to take the same oath of office before the chief executive, in which they pledge to uphold the Basic Law and bear allegiance to Hong Kong. 

Full text of the oath

“I swear that, in the Office of a Judge of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.”

When do foreign judges retire? 

While the chief justice and permanent judges of the CFA retire at 70, there is no retirement age for a non-permanent judge. At present, Lord Leonard Hoffmann is both the longest-serving and oldest overseas NPJ. He joined the CFA in 1998, and is 90.

Are foreign judges declining in prominence? 

Overseas judges have penned fewer lead opinions in judgements in recent years, and no longer appear to write opinions relating to Hong Kong’s relationship with Beijing, CUHK law professor Hargreaves said in his journal article published in 2022. Nor do they engage in public law questions concerning the protection of human rights, he added.

Indeed, there had been a “notable reduction” in the proportion of decisions in which the lead opinion was individually written by an overseas judge, the scholar found. Between 1997 to 2010, the ratio was around 25 percent, but it fell to around 19 per cent between 2015 and 2019. 

By lowering the number of judgements in which overseas judges penned a lead opinion, the court was seeking to minimise “avenues for attacks on the legitimacy of its decisions,” Hargreaves said.

Hargreaves’ analysis also found that the judgements which included lead opinions from a foreign judge mostly dealt with matters that were non-political. They included beneficial ownership of portions of an estate, evidentiary standards, false trading in the securities market, breach of copyright action and the meaning of malice and qualified privilege under defamation law.

“This is not to diminish the importance of the recent cases for which the overseas judges have taken the lead, but it is striking that not a single one of those opinions over the last five years deals with questions of the boundaries of human rights protections under the Basic Law or the relationship between the Region and the rest of China,” he wrote.

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