Letters | If Hong Kong must have foreign judges, at least look beyond Britain and its former white settler colonies

Readers discuss the need for a more diverse judiciary in Hong Kong and the role British judges have played in the Court of Final Appeal

Hong Kong courts

Letters

Published: 2:30pm, 7 Apr 2022

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The departure of UK Supreme Court judges from the Court of Final Appeal has drawn criticism from both political camps. Some have criticised Britain’s withdrawal while others feel this indicates an erosion of common law in Hong Kong.

For those who do not know, the Court of Final Appeal comprises judges from Hong Kong as well as foreign judges. Few other jurisdictions in the world would so much as entertain the idea of foreigners ruling in the highest court. The idea was to fill the bench with experts from other common law jurisdictions to uphold the judicial tradition.

The problem is this is not so much a common law institution as it is a remnant of British imperialism. Only four countries have ever had judges appointed to the Court of Final Appeal – Britain, Australia, Canada and New Zealand. More than 25 jurisdictions in the world practise common law, and yet the only nations that have ever been invited to send judges are the former white settler colonies or Britain itself.

Why no justices from Kenya, Malaysia or India? For those who think such countries are not developed enough to staff our courts with judges, I can tell you from my experience that the law schools of Edinburgh, Cambridge and Oxford have no shortage of brilliant African and Indian alumni. How about Singapore? One of the most important judicial hubs for international commerce with striking similarities to Hong Kong has never had a justice sit on the bench in Central.

Even the appointments from countries like the UK and Australia have been far too homogenous. Nearly all of the appointees have been “old white men”, a term used during my time in law school to describe the lack of gender and racial diversity in the courts. Not one person of colour has been appointed from any foreign jurisdiction, even though we have no shortage of brilliant lawyers and justices of African, South Asian and Aboriginal descent all throughout the Commonwealth.

03:17

Hong Kong, Beijing condemn UK withdrawal of judges from city’s top court over security law concern

Judicial independence is important, but it does not mean the system is immune to criticism. The court, the legal community and the city of Hong Kong should take time to reflect on this issue. Is the system really upholding justice, or is it perpetuating the issues of a lack of equality and diversity that are present not only in the West, but also here in Hong Kong?

Timothy Wong, Central

UK judges not merely innocent bystanders

I refer to two of your articles on the departure of two UK judges from Hong Kong’s Court of Final Appeal that misrepresented my solicited views given on March 30.

In the article “National security law: what does the UK withdrawal of judges from Hong Kong’s top court show about respect given to city’s judiciary and government?” (March 31), one of my views was that UK judges in Hong Kong “have thus far absolutely endorsed at every step an administration which has departed from the values of political freedom and freedom of expression”.

I therefore find it troubling that any reasonable reader might consider me one of the “legal experts and political commentators” who “appear to agree on one issue – the city’s judicial system is still respected and seen in a separate light from the government”.

In a December 2020 column in the Post, I specifically suggested that UK judges in Hong Kong should just “fly away” as I agreed with the position of Hong Kong’s secretary for justice that “separation of powers” was a concept foreign to Hong Kong. My views on the role of foreign judges on the bench of the Court of Final Appeal have not changed.

In the article “At least eight out of 10 remaining overseas judges at Hong Kong’s highest court to stay on” (April 1), I was quoted to suggest that “given several high-profile comments on the city’s courts by mainland officials, the move now signalled to foreign observers that the UK Supreme Court no longer wished to be part of a legal system that served Hong Kong and China’s political agendas”.

In my views given to your journalist, I made no such correlation. In enlarging the scope of China’s national security law for Hong Kong to other laws of Hong Kong, UK judges in Hong Kong have not been some passive bystanders witnessing the “evolution” of rule of law in Hong Kong. No “high-profile comments on the city’s courts by mainland officials” necessary.

Phil C.W. Chan, London