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Cliff Buddle

Solicitor-General Ian Wingfield considers the health of Hong Kong's legal system a decade on

As someone who is British and had served the colonial government for many years, what were your thoughts as the handover approached?

By the time we got to the last couple of years, people like me realised we were not going to have to leave.  There was a sense that things were going to go on very much as they had done.

What were your thoughts on how the legal system would fare?

Once it became apparent the civil service was going to be left very much as it was and that the people who were to be appointed principal officials would be those who had previously been serving as the heads of the branches, it was  clear  there could not be any radical changes of direction, at least not for some time.

Are you surprised to find yourself embarking on a new position of solicitor-general in 2007?

Yes. I don't know how long I had really thought of staying on. I had in mind five years or so. I had never thought of becoming solicitor-general.

Three British lawyers have been in senior positions within the department and have had a significant role to play in the past 10 years. Some would say this reflects a lack of talent at this level among local lawyers.

I think what is more interesting is that I was appointed a law officer in 1991. The others were appointed as law officers after reunification, so this reflects a theme of continuity, a willingness to look at the resources you have and to make an appointment irrespective of the race or nationality of the people concerned. I think that really showed an openness which reassured us all.

There was an early controversy about the exemption of state organs from HK's laws. What do you remember about that?

I do not remember it being particularly controversial. The reason it sticks in my memory was because this was when [secretary for justice ] Elsie Leung  was effectively off sick for a month. During that time, I acted as secretary for justice. It gave me the opportunity to sit in on - but not be a member of - the Executive Council. I was amazed at the time because there were other people who could have done it and who I thought might have been preferred from a political point of view.

Interpretation of the Basic Law is one legal issue which, even before the handover, people saw could be a problematic area. That has proved to be the case. When you look back on the early judgments, do you think the courts tried to fix things which did not need fixing?

The courts ruled on questions they were asked to rule on. What was happening was that [the Court of Final Appeal] was a new court and it was inevitably going to seek to give some indication to what it thought its jurisdiction was. I think the matters covered in those judgments were predictable in their scope even if not in the decisions which eventually emanated from them.

Someone said  you were overheard saying 'now for plan B' when leaving court after the landmark right of abode case in 1999. Was there a plan B?

It is complete news to me.

The suggestion was that plan B was the interpretation by the NPCSC, a fall-back position in case the government lost in court. Was that the plan?

I gave no thought to it at all.

So the whole question of the interpretation did not arise until after that judgment?

I certainly had no discussions about it before, subject to this. We had submitted to the court that it should refer the matter to the NPCSC for interpretation under ... the Basic Law. So we had thought of interpretation but only on the basis the court itself should make the reference.

There was a lot of opposition to the NPCSC interpretation at the time.

Some people still feel very strongly about it. Do you accept the criticisms?

I don't think there is any doubt it is an extremely important step to take to seek an interpretation from the NPCSC.  The Basic Law allows for that possibility. Therefore, to say that one is never going to do something the Basic Law expressly provides for is just ignoring the constitutional arrangements that we have. But I understand why people at the time felt strongly about it ...  what is interesting is that huge changes have taken place in the past eight years, in terms of the relationship between Hong Kong and the mainland, in terms of immigration controls, the border and the extent to which people are allowed to come here as tourists.

Was the government's claim that there would be a mass influx of about 1.6 million people  exaggerated?

Even people who were strongly opposed [to the interpretation] accepted there might be as many as 300,000 people with an immediate right to enter Hong Kong. These were very big figures.  The problem with that figure of 1.6 million is that it was an amalgamation of figures; it represented the first and second generation. The trickle-down effect was a real concern. Whether the figures were exaggerated, I think clearly as history has turned out they were rather greater than ... but the other thing was that the wish of people to come was assessed too highly.

In terms of the impact on the legal system, we have had similar interpretations since, but not one which has followed a ruling by the CFA.

And not one at the request of the HK government.

We now have a secretary for justice who came in saying that he thinks interpretations are best avoided.

In fairness to his predecessor [Elsie Leung], I don't think she was enthusiastic either.  But I think the nature of the case was the reason this happened.  The importance of the issue of immigration from the mainland was one of the reasons why the government felt particularly concerned about it. That concern was shared by the British side before 1997.

Did it damage the standing of the court?

I don't think so, no. I think there was a fear that they might feel in some way personally aggrieved. I don't think they did. I think they looked at the Basic Law and determined there was such a power.

Nevertheless,  it strikes at the heart of how  this legal relationship between Hong Kong and the mainland works out, doesn't it?

It is a matter of mutual trust and respect.

What about rendition arrangements for the transfer of suspects across the border?

I think the issue has to be addressed at some stage, particularly as the mainland is developing a network of extradition treaties with other jurisdictions.

Speaking about difficult issues which won't go away ...

You are going to ask me about Article 23.

Does that come with the territory as solicitor-general?

I don't think so. The chief executive has made it clear it is not at the top of his priority list. So I don't imagine it will be knocking on my door any time soon.

You would expect it to come back at some time?

Many of the provisions are already part of our statute book. You are not able to commit treason without punishment because treason is part of the Crimes Ordinance. But there are others which require legislation.

If I ask you to assess how things have gone over the past 10 years, what would your response be?

I didn't expect things to go badly and things have gone better than I anticipated.

Ian Wingfield  began working for the Legal Department in 1982 and was Crown Solicitor in 1997. He became Law Officer (Civil Law) at the handover, and was later  Law Officer (International Law). He was talking to Cliff Buddle



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