Age crisis prompts fears for judiciary

PUBLISHED : Monday, 09 April, 2012, 12:00am
UPDATED : Monday, 09 April, 2012, 12:00am

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Half of all top-tier judges will reach retirement age over the next five years, prompting fears of a fall in standards in the judiciary.

The South China Morning Post, can reveal that half of the 38 judges working in the Court of Final Appeal, Court of Appeal and Court of First Instance - the top three tiers of the court system - are aged over 60. The statutory retirement age is 65.

Hong Kong's top court, the Court of Final Appeal, will suffer the most.

The average age of Court of Final Appeal judges is 62, compared to 59 for the Court of Appeal and 58 at the Court of First Instance.

The government is already struggling to fill positions in the lower courts, with the Post revealing last month that almost a quarter of positions for judges and magistrates have been lying vacant for at least nine months.

The retirement problem also emerged last month when it was revealed that Court of Final Appeal judge Mr Justice Kemal Bokhary would be replaced by a judge nine months older than him when he retires on turning 65 in October. Mr Justice Robert Tang Ching, vice-president of the Court of Appeal, will take his position.

Over the next two years, the other two permanent top court judges, Mr Justice Patrick Chan Siu-oi and Mr Justice Roberto Ribeiro, will turn 65.

Most Court of Final Appeal judges are appointed from the Court of Appeal - but that court's judges include the city's two oldest, Mr Justice Michael Hartmann, who is 68 this year, and Mr Justice Frank Stock, 67, who are both working on extended terms of office at the discretion of the chief executive.

Such discretion is only granted in what the judiciary calls 'exceptional circumstances' relating to operational needs. High Court judges - including those of the Court of Appeal and Court of First Instance - can stay on for up to five years on a discretionary basis after the age of 65.

For Court of Final Appeal judges, an extra discretionary term of three years is allowed. That term can be extended for a further three years, after which the judge must retire.

A lower court judge over the age of 65 can be appointed to the top court on a three-year term, which can be renewed once.

University of Hong Kong law professor Eric Cheung Tat-ming is concerned about a possible knock-on effect on the lower courts.

'In the event that the two Court of Final Appeal judges retire, and the judiciary picks two judges from the appeals court, I'm worried that the judiciary will not be able to find enough judges to fill the vacancies, and in turn the quality of the judiciary would be affected,' Cheung said.

'My concern is not about the retirement of a particular judge but a knock-on effect. The problem is most acute at the Court of Final Appeal.

'The shortage of judges was, in fact, highlighted by former chief justice Andrew Li Kwok-nang when he stepped down [in 2010]. But I do not see the judiciary doing much to address the problem.'

One problem could be that efficiency of the courts is affected, with cases taking longer and longer to reach trial.

Last month, the Judiciary told a Legislative Council panel that 45 of the city's 189 posts for judges and magistrates had been vacant since June. A recruitment exercise is now taking place.

Junius Ho Kwan-yiu, president of the Law Society, said the problem was not a lack of talent but the fact that few lawyers were tempted to become judges.

He suggested that the salary for judges be doubled and that a rule banning judges from later re-entering private practice should be scrapped.

At present, a High Court judge earns more than HK$200,000 a month, but Ho says an average senior counsel earns more than HK$5 million a year, while top barristers can earn more than HK$30 million a year.

But experienced barrister and lawmaker Audrey Eu Yuet-mee had reservations about allowing judges back into private practice.

'Many people consider judicial appointment a prestigious conclusion for a legal career. It should not be seen as a stepping stone to private practice so that one can charge extra fees because he was previously a judge,' Eu said.

Eu and Cheung said Chief Justice Geoffrey Ma Tao-li should take a more proactive role in hunting for talented lawyers with the integrity and temperament to serve at the bench.

But Eu, Cheung and other senior counsels questioned by the Post said there was no pressing need to amend the law to raise the retirement age of judges.

In most other countries with a legal system based on Britain's, the retirement age is higher. British Supreme Court judges can serve until they are 70, as can federal judges in Canada and Australia.