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Justice Patrick Hodge is to join Hong Kong’s Court of Final Appeal as a non-permanent judge. Photo: Warton Li

Top Scottish judge appointed to Hong Kong’s Court of Final Appeal in move seen as bid to assure public on judicial independence

  • Justice Patrick Hodge serves as deputy president of the Supreme Court of the United Kingdom
  • Hodge’s appointment comes after sudden departure of judge James Spigelman, who resigned over national security law concerns
A top Scottish judge has been appointed to Hong Kong’s Court of Final Appeal following the controversial resignation of an Australian judge last month over the Beijing-imposed national security law.

The government announced in a statement on Monday that Chief Executive Carrie Lam Cheng Yuet-ngor had accepted the recommendation to appoint Mr Justice Patrick Hodge, who serves as the deputy president of the Supreme Court of the United Kingdom, as a non-permanent judge from another common law jurisdiction.

The number of overseas judges on Hong Kong’s top court was reduced to 13 from 14 following the resignation of Australian judge Mr Justice James Spigelman due to concerns over the contents of the national security law.

It was not made clear if Hodge was brought in to directly replace Spigelman, although analysts noted the timing of the appointment, with one saying the move by Lam marked her bid to reassure the public that the city’s judicial independence remained her top priority.

Hodge’s appointment will be confirmed once the Legislative Council endorses the recommendation of the independent Judicial Officers Recommendation Commission.
Justice Patrick Hodge is deputy president of the Supreme Court of the United Kingdom. Photo: Handout

The national security law, which Beijing enacted for Hong Kong, criminalises acts of secession, subversion, terrorism and collusion with external forces. The legislation’s broad language and scope had attracted criticisms that it would limit free expression.

Lam said in a statement that she was pleased to accept the recommendation.

“[Hodge] is a judge of eminent standing and reputation. I am confident that he will be a great asset to the Court of Final Appeal,” she said.

“The presence of these esteemed non-permanent judges manifests the judicial independence of Hong Kong, helps maintain a high degree of confidence in our legal system, and allows Hong Kong to maintain strong links with other common law jurisdictions.”

Hong Kong government defends judicial independence after foreign judge quits

Chinese University political scientist Ma Ngok said the appointment sent a positive message to society.

“Some people were previously worried that more and more of these judges could leave the city’s top court, but now at least there’s one more coming to serve as a non-permanent judge,” he said.

“The timing of the announcement also shows that the government wants to deliver that message to society, that the judges are not leaving.”

But Ma added that Hong Kong’s judicial independence did not centre on a single judge. “It depends on the judgments being made and public perception.”

Opposition lawmaker James To Kun-sun, a veteran lawyer from the Democratic Party, also welcomed the appointment. “I hope that judges from common law jurisdictions around the world are coming to sit on the top court. This helps our judicial system to be trusted,” he added.

To said he would not speculate on the motive of Lam’s appointment of the new judge.

These judges are not ‘political vases’, they do actively participate in adjudication
Ronny Tong, executive councillor

Former Bar Association chairman Ronny Tong Ka-wah, an adviser on the city leader’s de facto cabinet, the Executive Council, said he believed Hodge’s appointment would be helpful to the city’s judiciary.

“It once again proves that our judiciary is independent, and judges who are well-respected and enjoy high standing are willing to come to Hong Kong,” he said.

“Our judicial independence will not be weakened by an individual incident or resignation.”

But Tong argued that the appointment could not be interpreted as the government attempting to replace Spigelman.

“These judges are not ‘political vases’, they do actively participate in adjudication. They were recommended by the Judicial Officers Recommendation Commission, which is a crucial element of Hong Kong’s judicial independence,” he added.

The commission has 10 members – the city’s chief justice and justice minister, two judges, three lawyers and three individuals not connected with the practise of law.

A senior legal source, who spoke on condition of anonymity, told the Post the commission might consider names put up by anyone.

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“In practice, it would essentially rely on the chief justice to come up with suggestions,” the source said.

“For such an appointee, the chief justice would presumably have sought the input of the [president of the Supreme Court of the United Kingdom].”

Pro-establishment lawmaker Priscilla Leung Mei-fun, a member of the Basic Law Committee, which advises the central government on the city’s mini-constitution, also welcomed Hodge’s appointment.

“Hong Kong’s judicial independence does not only depend on foreign judges. But under the Basic Law, we have always welcomed them, so that we can make use of their expertise to enrich our legal development,” she said.

“This appointment shows that the [judicial] mechanism has been operating as usual.”

Hodge studied history at Corpus Christi College, Cambridge, before reading law at the University of Edinburgh. He was called to the Scottish Bar in 1983.

Before his judicial career, he was junior counsel to the Department of Energy and worked at the Inland Revenue. He was appointed a Queen’s Counsel in 1996, and focused on commercial and property law, as well as judicial reviews.

From 2000 to 2005, he was appointed a judge of the Courts of Appeal of Jersey and Guernsey. After that, he became a judge of the Court of Session, Scotland’s top civil court. He was appointed to the Commercial Court within the Court of Session in 2008.

Hodge became a judge on the Supreme Court of the United Kingdom in October 2013, and was appointed its deputy president in January this year.

The overseas judge from other common law jurisdictions is one of five judges on the top court bench when hearing cases, besides three Hong Kong permanent judges and a local non-permanent judge.

They serve part-time in Hong Kong in addition to appointments in their home jurisdictions.

This article appeared in the South China Morning Post print edition as: Top Scottish judge appointed to the Court of Final Appeal