• Mon
  • Dec 22, 2014
  • Updated: 9:57am
Column
PUBLISHED : Wednesday, 08 May, 2013, 12:00am
UPDATED : Wednesday, 08 May, 2013, 3:19am

Recruiting overseas judges the right thing to do for now

Frank Ching says foreign judges are still needed here for now, to ensure high judicial standards, but only until the local talent pool fills up

BIO

Frank Ching opened The Wall Street Journal’s bureau in Beijing in 1979 when the U.S. and China established diplomatic relations. Before that, he was with The New York Times in New York for 10 years. After Beijing, he wrote the book Ancestors and later joined the Far Eastern Economic Review.
 

Our judiciary remains fiercely independent," Secretary for Security Lai Tung-kwok said at a luncheon address in London last week. "We uphold the rule of law and Hong Kong people enjoy a wide range of rights and freedoms."

An independent judiciary is one of Hong Kong's most positive attributes, especially now that the civil service's image is somewhat tarnished. However, while the quality of judges remains high, there is a troubling shortage of suitable candidates who can move up to the bench.

One reason is that Hong Kong did not develop legal education until very late. The Hong Kong College of Medicine for Chinese produced its first medical graduates in 1892 but the first law graduates from the University of Hong Kong did not appear until 80 years later, in 1972. Because of that, Hong Kong's first local judges were all British-trained. Even then, there were disincentives to serve as judges under the colonial system.

Simon Li Fook-sean, who died recently, was the first Chinese person to serve as a high court judge in 1971 and retired in 1987 when he was vice-president of the Court of Appeal. Throughout this period, he complained bitterly about the discriminatory treatment accorded local judges.

In those days, however, Hong Kong could draw on other sources for legal and administrative talent - not just from Britain but from its colonies around the world. Those expatriate judges served Hong Kong well but many are now retired or close to retirement.

None of the original judges on the Court of Final Appeal in 1997 was locally trained. Currently, only one - Patrick Chan Siu-oi - graduated from the University of Hong Kong, but he is retiring in October and will be replaced by another British-trained jurist, Joseph Fok.

Fortunately, China was pragmatic when it enacted the Basic Law. That document stipulates that only the chief justice of the Court of Final Appeal and the chief judge of the High Court must be Chinese nationals. Other judges - and other legal personnel - can be recruited overseas.

Since 1997, there has been a perhaps understandable reluctance to recruit overseas judges. But Hong Kong has no choice if it is to maintain its high standards. The city itself simply does not have the depth and breadth of legal talent.

Chief Justice Geoffrey Ma Tao-li has acknowledged the problem and said: "So far as I'm concerned, it is better to leave a position vacant than to get people who are not qualified or are not the right people." Of course, positions cannot be left open indefinitely. Already, the waiting time for both civil and criminal cases has lengthened beyond prescribed targets.

Overseas judges are at a disadvantage in not knowing the Chinese language and the local culture. But until Hong Kong can fill the void - by training top legal minds and perhaps also by widening the pool to include more solicitors and academics - there may well be a need to recruit judges from overseas.

Frank Ching is a Hong Kong-based writer and commentator. frank.ching@scmp.com. Follow him on Twitter: @FrankChing1

Share

Related topics

For unlimited access to:

SCMP.com SCMP Tablet Edition SCMP Mobile Edition 10-year news archive
 
 

 

7

This article is now closed to comments

lucifer
The fact of the matter is that Hong Kong has to do whatever it takes to preserve the system we enjoy, especially the rule of law. Hong Kong is not uniquee in hiring foriegn judges and some smaller common law jurisdictions even higher foiriegners fo rthe suprme court. A judge is trained to be impartial and I have no problem with a well educated and well trained judge from any common law juridiction serving in Hong Kong. Hearing cases and making impartial decisions is what matters most. Loyalty matters least. If the legal system is ever bombarded by the "love the mother country" attidudes becoming more prevalent in HK, then its finished.
caractacus
jpinst hits the nail on the head. There are already a few judges, mainly presiding over lower courts, with a chip on the shoulder about "foreigners". Whatever happens, they must not be allowed to dominate or influence the legal system or we shall end up with a judiciary whose decisions are improperly influence by government or PRC officials, according to political expediency or national policy. Then the way will be open to uncontrolled corruption.
The rule of law is about application of the law to everyone, particularly the government, just that, not race or nationalism and especially not so - called patriotism.
pslhk
Extract from my comment on
HK News: "Catholic principal guilty of slander" of May 11
-
That said let me continue my comment here below on Frank Ching’s May 8 column
-
M Sandel’s opinion about “local judges for local adjudication”
repeats the cross cultural cliché: “in Roman do what Romans do”
The Chinese saying is: every village has its own regulations (一條鄉村一條例)
-
However In dynastic China, as every local high school student should know,
judges must work out of province and were disallowed adjudication in their own home provinces
-
To reconcile differences involving judges, laws, natives and outsiders
we must begin with demarcating domain and jurisdiction
then we may consider R Posner’s proposed distinction between thin and thick laws
-
Questions about legal standards and foreign judicial recruitment,
which deserve better than FC’s habitual knee jerk dissolution
are beyond the comprehension of anencephalic legal dogmatists
those who know no better than mouthing politically biased legal slogans
pslhk
Caractacus, (May 8th 6:44pm)
You’re barking up the wrong tree
Racism and hate email are criminal offences in HK
If victimized you should report to the police
and not just whining in SCMP comments
Don’t make yourself more foolish than is necessary
to demonstrate your low intelligence
The racism and hatred you persistently perceive
are but self-reflective illusions
-
The crux of the discussion is about judicial standards
FC talked about ”breadth and depth of legal talent”
referring to irrelevant differentiations between local and foreign judges
that shouldn’t be how standards are determined
-
United S and United K, each being a separate country
sharing a common law tradition.
Do they allow cross-border legal practice?
Even within the United S,
does Nevada admit lawyers from NY
which supposedly has more breadth / depth
in terms of history, population, diversity, economics …
And in the tiny United K of great Britain
Scotland has its own legal system
-
I agree with Michael Sandel
who holds that local justice should be decided by local judges
-
For long term judicial development
we may have to learn from experienced mountaineers
sometimes we must take a step back
so that we can move ten steps forward
With good court leaders at the helm
now we can afford strategic planning in judicial deployment.
Byebye
Someone like Sir John Deed in the British legal drama television series, "Judge John Deed"?
pslhk
Let me tell you why I find your “analysis” shallow
You repeat other people’s observations out of context
those of the late Simon L j and Geoffrey M CJ
and add irrelevant trivialities from popular archive about Chan j, Fok j …
to come to your simple-minded conclusion:
“Hong Kong has no choice if it is to maintain its high standards.
The city itself simply does not have the depth and breadth of legal talent.”
What are the factors that gauge the scale of “your” inexplicable standards?
Would maintaining “high standards” by importation help developing local legal talent?
You mentioned “discriminatory treatment” without knowing its significance
You are the knowing expert I’m ignorant like most other curious readers
Please tell us
about that high pay UK legal Bigwig (what’s his name)
who defended HK’s first white female **** and the government in residency matter
He got permission to advocate here because his talent was needed
for our judiciary to maintain high standard decisions
Tell us what tacks, angles, insights, interpretations, expressions, questions, explanations …
of his are evidence of your so-called breadth and depth
of which you claim the local legal pool is deficient?
What HK needs is sustainable development and not “maintaining” “high”” outlandish” standards
I must run to attend other matters
simply: liberate the legal profession from the bondage of a foreign language
for sustainable development of a respectable legal mechanism
caractacus
pslhk is the racist Pierce Lam who often writes hate emails and letters to the SCMP. One wonders at the reasons for his spite, was he once bitten by a "****"?
 
 
 
 
 

Login

SCMP.com Account

or