Talent pool for finding judges 'running dry'
The growing workload puts many lawyers off, academic warns, while others with fine legal minds are never even invited onto the bench
Patsy Moy and Stuart Lau
The heavy workload of the judiciary and a restricted pool of candidates have created barriers to the recruitment of judges, lawyers and legal academics say.
While court waiting times lengthen and fall further behind official objectives, some judges are said to be using their holidays to write judgments.
And although the ranks of senior counsel - a key recruiting ground for High Court judges - numbers 89, some of the best legal minds are not being approached, the head of the University of Hong Kong's law school says.
The pool is depleted further, according to someone familiar with the recruiting process, because unlike colonial days the judiciary tries as far as possible to avoid appointing foreign judges.
Judiciary figures show that the waiting time for civil cases in the Court of First Instance has increased 30 per cent since 2009 to 231 days, well behind the target of 180 days. Over the same period the wait for criminal cases stretched from 137 days to 169 - 40 per cent behind the 120-day target.
The dean of the University of Hong Kong's law school, Johannes Chan Man-mun, said judges' workloads were so overwhelming that it was common for them to spend public holidays and even their annual leave writing up judgments.
"For lawyers who are determined to become judges, money is no longer their concern as the government can never pay an amount comparable to the money a top lawyer can make," Chan said. "Besides the honour of the judicial appointment, what they want most is a work-life balance, and that attracted some top lawyers to join the judiciary in the past. But working conditions for judges nowadays have completely changed."
Many experienced barristers and senior counsel are also relatively young - in their 40s or early 50s - meaning they might be reluctant to become judges as it would prevent them returning to private practice.
Chan said promoting district judges to the High Court was not a solution as some of them lacked enough experience, while the lower courts were also tied up with cases.
He also said it was questionable whether the Judicial Officers Recommendation Commission, which recommends the appointment of judges to the chief executive, would approach lawyers whose mindsets and political stances were completely opposite to those of the government.
There are no rules to restrict the recruitment of judges due to political affiliation, but the judiciary's guide for judges says they "should refrain from membership in or association with political organisations or activities".
"Some senior counsels who have brilliant minds and enough experience are not even invited to represent the government in court, not to mention being appointed as judges," Chan said, refusing to name the lawyers.
Civic Party lawmaker and senior counsel Ronny Tong Ka-wah, now 62, said he was interested in becoming a permanent judge but had received no invitation from the commission after the change of sovereignty in 1997.
"I worked as a deputy judge on a few occasions in the past to hear civil cases and enjoyed writing judgments very much, which raised my interest in becoming a judge," he said.
Tong said he was invited to become a judge before 1997, but turned it down. "At the time I was unsure whether I would stay in Hong Kong. If I had accepted the judicial appointment, I would not have been able to return to the legal profession. That was my major concern."
Under the High Court Ordinance, solicitors with at least 10 years' seniority are also eligible to be High Court judges.
Law Society president Dieter Yih Lai-tak said he had no interest in becoming a judge.
"There are too many restrictions after becoming a judge. I prefer being a solicitor."