Hong Kong courts

Hong Kong’s latest top court appointments send a signal that the rule of law remains strong

Bernard Chan says the appointment of four respected judges to the Court of Final Appeal shows that judicial independence and the rule of law are intact and that the city welcomes overseas legal talent

PUBLISHED : Thursday, 29 March, 2018, 10:49am
UPDATED : Thursday, 29 March, 2018, 6:21pm

The business community, politicians from almost all parties and the rest of us in Hong Kong probably agree on one thing: our legal system is the foundation of our way of life and economy. An independent judiciary is the core of this system and our rule of law, without which there would be no guarantee that our rights and freedoms as individuals are secure. Businesses and investors could not be sure that contracts would be enforced impartially.

It is vital for people to have confidence that our judiciary remains independent – and of high quality.

In recent years, growing political differences in the community have encouraged accusations against the courts and judges when some people do not like a decision. We have seen angry activists on one side use racist abuse against a judge. Activists on the other side insist the courts are politically biased.

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This criticism is unfounded – the fact that some high-profile cases have gone to appeal shows that the system works. But these accusations can undermine the image of our legal system and increase the distrust in society. Such allegations also get into the international media and damage Hong Kong’s reputation for the rule of law and as a financial centre.

These latest appointments should make it clear that there is no official or other trend away from having eminent and international judges in our top court

Against this background, it is good to have a serious reminder of the continued integrity of our judiciary. Chief Executive Carrie Lam Cheng Yuet-ngor last week announced a number of senior judicial appointments. They were one permanent and three non-permanent judges of the Court of Final Appeal – two of these three being from overseas common-law jurisdictions.

All four individuals have impressive track records. The new permanent judge, Justice Andrew Cheung Kui-nung, joined the judiciary in 2001, while the new non-permanent judge, Justice Robert Tang Kwok-ching, has judicial experience going back to 1982.

The other two appointments received more media coverage, largely because they are the first women to be on the Court of Final Appeal. The chief executive – the first woman to hold the post – made no secret of her delight at seeing this happen, and she is not alone.

The appointments of Baroness Brenda Hale and Beverley McLachlin also send a powerful signal that overseas judges continue to have a strong presence on our Court of Final Appeal. Baroness Hale has had a distinguished academic and legal career, having served as president of the Supreme Court of the United Kingdom. McLachlin was the first woman, and longest serving, chief justice of Canada, and is the first Canadian to serve on our Court of Final Appeal.

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The court currently has three Hong Kong permanent judges (two are whom are not Chinese), and 12 of the 15 non-permanent judges are from overseas. Two thirds of all the Court of Final Appeal judges are therefore from other common-law jurisdictions. Not only do the new appointments increase this international presence, they also uphold the high standards of legal talent in the court.

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In recent years, some local people and at least one mainland academic have questioned the presence of foreign judges in Hong Kong’s Court of Final Appeal. (Under the Basic Law, the chief justice is the only judge required to be a Chinese citizen.) These latest appointments should make it clear that there is no official or other trend away from having eminent and international judges in our top court.

I have heard of concerns in the international business community that Hong Kong courts could become less impartial – specifically in commercial disputes involving Chinese state companies. There is absolutely no evidence for this, but such ideas can still damage Hong Kong’s reputation. Hopefully, the appointment of top local and international legal talent will show that these fears are unfounded.

These appointments should reassure the whole community that an independent judiciary remains at the core of our legal system.

Bernard Chan is convenor of Hong Kong’s Executive Council