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Published: 22:10, December 06, 2023 | Updated: 09:38, December 07, 2023
Maintaining professional Judiciary is key to upholding rule of law
By Grenville Cross
Published:22:10, December 06, 2023 Updated:09:38, December 07, 2023 By Grenville Cross

In 2020, the outgoing chief justice, Geoffrey Ma Tao-li, stressed the importance of the rule of law in Hong Kong. Having said it was “rightly cherished by the community and is the foundation of a cohesive society”, he emphasized, “We must do our best to preserve it and to treasure it.” Since his departure, this has been successfully achieved, as independent observers acknowledge.

When the World Justice Project issued its “WJP Rule of Law Index 2023” on Oct 25, Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed, which was no mean feat. It ranked ahead of many Western nations, including the United States (26th), Italy (32nd) and Greece (47th). The index is the world’s leading source for independent, original data on the rule of law, and good rankings need to be earned.

That Hong Kong was rated so highly is attributable primarily to its Judiciary. It is staffed, at all levels, by judicial officers of the highest quality, with 10 of the judges who sit as nonpermanent judges on the Hong Kong Court of Final Appeal (HKCFA) being eminent overseas jurists. Without its leadership, Hong Kong would, moreover, not have been ranked sixth out of 15 in the index’s survey for the East Asia and Pacific region.

If, however, the Judiciary is to continue serving the community as successfully in the future as it has in the past, it must attract people of the right quality. Only if adequately staffed can it discharge its responsibilities to the necessary standard and in good time. It has, therefore, done much in recent years to make the packages it offers potential recruits as attractive as possible.

In October, after reviewing various factors, including the workload of judges and private-sector pay, the chief executive, John Lee Ka-chiu, on the advice of the Standing Committee on Judicial Salaries and Conditions of Service (Judicial Committee), approved a pay increase for judges of 3.62 percent for 2023-24, backdated to April 1, 2023.

This means, for example, that a high court judge will earn HK$343,759 ($43,970) a month, in addition to other benefits. These include security of tenure, double pension (after age 50), a housing allowance, paid holidays, medical entitlements, and (since 2019) employment up to the age of 70.

However, although the terms of service for judicial officers are now more attractive than ever, recruitment problems persist. As of March 31, 2023, the Judiciary had an establishment of 222 posts, of which only 166 were substantively filled. Although this was a net increase of six compared to the position a year previously, it meant that 56 posts (25.2 percent) were unfilled, which is a concern.

In October, the Judicial Committee disclosed that, in the 18 open recruitment exercises held since 2011, 148 judicial appointments were made. These included the five district judges and 10 permanent magistrates appointed in 2022-23. The Judicial Committee also noted recruitment exercises planned in 2023 for the Court of First Instance, the District Court and the Magistrates’ Courts, and these will hopefully bear fruit.

The shortage of experienced judges can have various consequences, not least of which is waiting times for the hearing of cases. In 2022, for example, in the Court of First Instance, a defendant in a criminal case had to wait approximately 323 days for his trial, while in the District Court, it was 350 days. The Judiciary, however, has pointed out that the complexity of cases and the problems caused by the COVID-19 pandemic have also contributed to the delays. Still, it cannot be happy to have so many vacancies in its ranks.

The chief justice, Andrew Cheung Kui-nung, has emphasized that however desirable it may be to have a full house, judicial standards must not be compromised. In 2021, he said that “judicial vacancies at all levels should be filled by competent and efficient judges and lawyers of the appropriate qualities”. This meant, whatever the shortage, there could be “no lowering of judicial and professional requirements for our judges”.

Cheung also highlighted the “substantial contribution” made by the overseas nonpermanent judges to the HKCFA, which had to be composed of judges “of the highest caliber”. Provided this was done, the top court would be able to “maintain full confidence in our legal system and the hard-earned reputation of our court in the common law world”. Earlier this year, the distinguished Australian jurist Patrick Keane joined the HKCFA as a nonpermanent judge. Fortunately, there is no reason to suppose the top court faces any recruitment difficulties.

It is no less crucial for the Court of Appeal to be composed of the brightest brains, not least because it is the final arbiter for the bulk of appellate cases. As some of its more outstanding members prepare to depart, replacements of equal stature must be found. If no obvious candidates emerge from the Court of First Instance, it may be necessary to appoint judges straight from the bar, for which there is precedent.

In 1992, Henry Litton QC, a former chairman of the Hong Kong Bar Association, was directly appointed to the Court of Appeal, becoming a permanent judge of the HKCFA in 1997.

At a higher level, there is also the precedent of Andrew Li Kwok-nang. In 1997, he was parachuted into the HKCFA from the bar as the first chief justice of the Hong Kong Special Administrative Region. Although his previous judicial experience was confined to sitting as a deputy judge in the lower courts, he showed, once appointed, that he was more than capable of holding his own among the HKCFA’s heavyweights. They included leading judges and law lords from other common law jurisdictions, including Australia, New Zealand and the United Kingdom.

On recruitment, Cheung noted that the legal profession had a role to play in encouraging “suitable lawyers” to apply to become judges. The Judiciary will undoubtedly be only too willing to work with the legal profession in promoting the idea of a judicial career among its members, even though the cream may be somewhat reluctant to make a move (it is by no means uncommon for a senior counsel to earn at least HK$1 million a month).

Although judges of the high court (and above) can now remain in harness until they turn 70 (with the option of extensions thereafter), this, for no good reason, does not apply to district judges (or permanent magistrates). As judges are barred from returning to private practice once they retire, this is a disincentive to potential district judges, and the retirement ages should be synchronized at a higher level.

Whereas Cheung, like Ma before him, is right to insist upon the maintenance of judicial standards, a Judiciary that is adequately staffed should remain the ultimate objective. However, if this cannot be timeously achieved, it is not the end of the world. The Judiciary has always been innovative, and it has various options at its disposal, none of which will harm the Judiciary or undermine the rule of law

In the past, moreover, there was a steady stream of prosecutors to the Judiciary, many of whom have made very significant contributions at all levels (most notably in the Court of Appeal). Given their existing pay scales and conditions of service, they sometimes adjust more easily to the judicial regime than private practitioners. They provide an obvious reservoir of talent, and it needs to be fully tapped.

Whereas it is traditionally the barristers who take up most of the senior judicial appointments, it is possible the more experienced solicitors might also be interested in a judicial career, and suitable encouragement could be welcomed by them.

The Judicial Committee will also be helping the Judiciary with its recruitment. It has undertaken to regularly track the earning levels of legal practitioners through benchmark studies and to review service conditions for judicial officers when invited by the government. It has also noted that “judges enjoy security of tenure and high esteem, which may be attractions for legal practitioners joining the bench”.

When all is said and done, however, there is still a severe manpower shortage, and various expedients are unavoidable.

It is, for example, typical for judges from lower courts to act up in higher courts as required (deputy judges), and this provides them with invaluable exposure to cases of greater significance. It also gives the Judiciary a chance to assess them, with a view to future promotion. There may be some scope for expanding the program, with more private practitioners also being invited to sit as deputy judges (and hopefully gain new insights into judicial work).

As of Nov 17, 15 of the bar’s senior counsel (SC) were serving as recorders of the Court of First Instance. A recorder typically devotes several weeks a year to trying cases, and their services are always in great demand during the holiday periods, when the regular judges take leave. It may be necessary to appoint additional recorders, and some of them, having tested the water, may decide to take up a judicial career.

As the HKCFA has overseas judges serving on it, there appears to be no valid reason why foreigners should not also be recruited to sit in the Court of First Instance and the District Court. This was common before 1997, and, in the absence of suitably qualified local candidates, there is no impediment to recruiting them now. After all, the Basic Law, prescient as ever, confirms they are welcome. It provides that judges (and other members of the Judiciary) “may be recruited from other common law jurisdictions” (Art.92).

If this were done, there would undoubtedly be great interest worldwide, most notably in places with traditional ties to Hong Kong, like Australia, Ireland and the United Kingdom. Overseas professionals could either be appointed as permanent judges or as deputy judges, and one recent appointment illustrates the point.

In 2018, a retired British high court judge, William Blair, the brother of former prime minister Tony Blair, was appointed as a deputy judge of the Court of First Instance. Given his area of expertise, he was assigned to commercial cases, and, having served on the court for a few weeks, he returned thereafter on several occasions, making, by all accounts, a valuable contribution. There would undoubtedly be other retired judges (and practicing barristers) who would jump at the opportunity to serve in Hong Kong’s courts for a while, and it may be time to put out feelers.

It is undoubtedly true that threats to the Judiciary from US ideologues may unnerve some people. What, however, is required are jurists who are fearless, determined to uphold the rule of law, and desirous of serving Hong Kong. Faint hearts need not apply.

Whereas Cheung, like Ma before him, is right to insist upon the maintenance of judicial standards, a Judiciary that is adequately staffed should remain the ultimate objective. However, if this cannot be timeously achieved, it is not the end of the world. The Judiciary has always been innovative, and it has various options at its disposal, none of which will harm the Judiciary or undermine the rule of law.

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.

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