On June 4, the Legislative Council, as required by the Basic Law (Art 90), endorsed the appointment of a former New Zealand judge, Sir William Young, as a non-permanent judge (NPJ) of the Hong Kong Court of Final Appeal (CFA).
Having served in the High Court of New Zealand from 1997 to 2010, he then joined its supreme court, where he served until his retirement in 2022. He is the third NPJ to have been appointed in the last three years, following in the footsteps of Patrick Keane (2023), a former judge of Australia’s high court, and James Allsop (2024), a former chief justice of Australia’s federal court. He brings huge experience to bear upon his new role, and, like Keane and Allsop, he will undoubtedly enrich the CFA’s deliberations.
The chief secretary, Eric Chan Kwok-ki, told the Legislative Council that Young had “a high status and outstanding reputation”, with his areas of expertise including crime, taxation and competition law (a burgeoning field).
There are two NPJ lists, comprising both local and overseas jurists. The local list currently comprises four retired Hong Kong judges, Kemal Bokhary, Patrick Chan Siu-oi, Robert Tang Kwok-ching and Frank Stock. The overseas list now consists of six jurists, the other three being the United Kingdom’s Lords (Leonard) Hoffmann and (David) Neuberger, and Australia’s William Gummow.
When the HKCFA hears an appeal, it comprises five judges. They invariably include the chief justice, Andrew Cheung Kui-nung, the three permanent judges, Roberto Ribeiro, Joseph Fok and Johnson Lam Man-hon, and an NPJ from one or other of the two lists (on occasion two NPJs may sit simultaneously). As Young’s arrival brings the number of NPJs to 10, there should be no great difficulty in servicing the CFA properly, although Cheung may wish to expand the pool yet further (it was markedly larger in the region’s early years).
Since the establishment of the CFA in 1997, overseas judges have come from Australia, Canada, New Zealand and the UK. This is undoubtedly because of the standing these jurisdictions enjoy in the common law world. However, there is no reason why the net should not be cast more widely, particularly if there is a reluctance of some jurists, after the enactment of the Hong Kong National Security Law in 2020, to take up CFA appointments.
In the UK, for example, jurists have faced ongoing pressure not to serve on the CFA, and some serving judges have buckled (unfortunately, not all are cut from the same cloth as Hoffmann and Neuberger, who have bravely stood their ground). Thus, in 2022, when the UK government wanted Lords (Robert) Reed and (Patrick) Hodge, who were members of the UK Supreme Court, to quit as overseas NPJs, then-foreign secretary, Liz Truss, told them it was “no longer appropriate for serving UK judges to continue sitting in Hong Kong courts”, and that their presence was “no longer tenable”. Having also faced similar pressure from then-justice secretary, Dominic Raab, the two judges duly quit the CFA on March 30.
Nobody was more disgusted by Truss’ behavior than former governor Chris Patten. On Nov 6 that year, he said, “I thoroughly disapprove of politicians telling judges what to do,” calling Truss’ remarks “a very damaging thing for her to have said”. He could have added that Truss had also violated the Universal Charter of the Judge (2017), adopted by the International Association of Judges, which states that the personal autonomy of judges must be safeguarded, and that they must not be subjected to any “influence, pressure, threat or intervention, either direct or indirect”.
If there are recruitment difficulties in the UK and elsewhere, there is no reason why the net should not be cast more widely. After all, the Basic Law stipulates that Hong Kong “may as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal” (Art 82), and no particular jurisdiction is identified. Therefore, the door is open for recruitment from untapped jurisdictions, including, for example, India, Ireland, Malaysia, Singapore and South Africa.
There is no reason to suppose that the contributions of the overseas NPJs will be any less significant in the future (including after 2047) than over the last 28 years. ... Everybody, therefore, who wants Hong Kong to succeed should endorse an arrangement that not only benefits the legal system but also helps to ensure the success of the “one country, two systems” governing policy
Be that as it may, the contributions of the overseas judges to Hong Kong’s jurisprudence have been remarkable, and the CFA’s judgments are sometimes cited in other common law jurisdictions, including the UK. When one of its permanent judges, Joseph Fok, addressed the Commonwealth Law Conference in 2017, he said it was to “Hong Kong’s great advantage” to have distinguished overseas judges participating in the CFA’s work. He explained “their influence, collectively, on the development of the law of Hong Kong since 1997 has been immense”, adding that the CFA’s standing “has been raised by their participation”. As an insider, he was uniquely placed to evaluate their contribution and had no need to gild the lily.
As Hong Kong is a global city with an international mindset, the involvement of overseas jurists at the apex of its legal system undoubtedly enhances its credentials. Although the CFA’s permanent judges are also of the highest quality, they, like the wider legal profession, benefit from the involvement of eminent outsiders. They help to uphold the rule of law and maintain Hong Kong’s international standing, which is precisely why the anti-China forces want to force them out.
Although several of the overseas NPJs have turned out to have feet of clay, the system that appointed them is fundamentally sound. Whereas a handful, like Britain’s Lord (Jonathan) Sumption, who resigned in a blaze of self-generated publicity in 2024, turned out to be fair-weather friends, they are by no means representative. To change the appointment system, as has been suggested, simply because several jurists have let the side down, would be self-defeating and tantamount to throwing the baby out with the bathwater. In any event, although several individuals have caused it embarrassment, Hong Kong only needs overseas jurists who are principled and can be relied upon to remain true in difficult times.
There is no reason to suppose that the contributions of the overseas NPJs will be any less significant in the future (including after 2047) than over the last 28 years. Indeed, their role may assume even greater significance, given global tensions. Everybody, therefore, who wants Hong Kong to succeed should endorse an arrangement that not only benefits the legal system but also helps to ensure the success of the “one country, two systems” governing policy.
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.
