Foreign judges can help Hong Kong plug its gaps and ensure speedier trials
Grenville Cross says Hong Kong retains a high-quality court system, but one whose efficiency can be improved. The appointment of two exemplary jurists to the Court of Final Appeal as non-permanent members shows the role foreign judges can play in helping to tackle the workload
When British Foreign Secretary Boris Johnson issued the United Kingdom’s latest six-monthly report on Hong Kong last month, he said that the “one country, two systems” formula “generally functions well”. He added that Hong Kong’s judiciary “remains in high esteem”, which was timely, not least because several retired British politicians and satraps made some scurrilous attacks on our judges last year.
However, if the judiciary is to retain its high esteem, it must also be efficient.
The judiciary, having recognised that a lack of judges was affecting the waiting time for trials in the Court of First Instance of the High Court, has taken steps to improve the conditions of judges’ service. Plans to raise the retirement age of senior judges from 65 to 70 have also been announced. Only time will tell if these measures will succeed. In the meantime, the problem of delayed trials, particularly in the Court of First Instance, where the most serious cases are heard, remains a concern.
In 2017, the court’s criminal caseload was 449, down from 497 in 2016 and 503 in 2015. However, defendants whose trials were listed on the court’s criminal fixture list, which covers cases assigned a specific trial date, still had to wait an average 164 days for their trials, notwithstanding the judiciary’s target time of 120 days. As for the defendants whose cases were listed on the court’s criminal running list, which covers simpler cases tried only once a judge becomes available, their average waiting time was 111 days, well above the 90-day target.
Even in the District Court, where there is no particular recruitment problem, defendants had to wait an average 152 days for their trials in 2017, notwithstanding a target time of 100 days. A contributory factor to this may, however, be that the ablest District Court judges are often required to take up acting positions in the Court of First Instance to help plug its vacancies.
A check of the judiciary’s daily court lists highlights the scale of the problem. Whereas, for example, there were 30 judges sitting in the Court of First Instance one recent Friday, 11 of these – over a third – were temporary High Court judges. They included an assortment of District Court judges, private lawyers and retired judges brought back into service from the UK. Although Chief Justice Geoffrey Ma Tao-li has emphasised that “it is better to leave positions vacant than to have appointments of persons not of the required standard”, the net may now need to be cast wider, at least as a temporary expedient.
The recent announcement that Baroness Brenda Hale, president of Britain’s Supreme Court, and Beverley McLachlin, Canada’s former chief justice, are set to join the Court of Final Appeal as overseas non-permanent judges, places a welcome focus on the role of foreign judges in our legal system. Whereas the full complement of the top court is currently 19 judges, 12 are overseas non-permanent judges, from either Australia or the UK. Although only one overseas judge can sit at any one time on an appeal, their very presence in the ranks of the judiciary underscores the vital role played by foreign jurists in maintaining the rule of law in Hong Kong.
In the Court of Final Appeal, moreover, the hearing time for appeals is exemplary. In 2017, it took an average of 90 days for a criminal appeal to be heard, well within the 100-day target.
The Basic Law’s Article 92 provides that judges “may be recruited from other common law jurisdictions”, and this applies equally to all court levels. If, therefore, local candidates of the right calibre are not currently available to fill the Court of First Instance vacancies, there can be no valid objection to looking elsewhere for judges. If jurists of the right sort can be recruited from overseas, most likely on fixed terms, as in the Court of Final Appeal, this should help to resolve the judicial shortfall, at least until the recent reforms to the judges’ employment terms have had time to bear fruit.
After all, apart from being independent and professional, our judiciary must also be capable of delivering justice without unnecessary delay.
Grenville Cross SC is a criminal justice analyst