As UK judges resign, does Hong Kong really need foreign judges any more?

Decades after China established the Court of Final Appeal, it could be argued that Hong Kong no longer needs British judges to shore up its reputation

Ronny Tong

Published: 9:30am, 11 Jun 2024

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Few will disagree that the rule of law, encompassing the concept of judicial independence, is the cornerstone of success for Hong Kong. This was true before the handover in 1997, and is true now. It is therefore not surprising that the fact was not lost on the leaders of China and Britain when they negotiated the resumption of sovereignty over Hong Kong in the 1980s.

Some may even say the success of “one country, two systems” depends on the maintenance of judicial independence, so much so that both Annexe I of the Sino-British Joint Declaration and Article 85 of the Basic Law provide that Hong Kong’s courts “shall exercise judicial power independently” and “free from any interference”.

Sadly, the British government seems to be bent on interfering with British judges sitting on our Court of Final Appeal, bringing political pressure to bear on them to resign.

In recent years, the British government has maintained that its judges should not sit on and lend legitimacy to Hong Kong’s top court. This is warped logic. If by that, the British government means legal legitimacy, it is plainly wrong. Hong Kong courts have been established by the Chinese government in the exercise of its sovereign power as a result of the joint declaration.

If the British government means moral legitimacy, is it saying that despite the assurance of Hong Kong’s judicial independence by the joint declaration, it is morally obliged to act contrary to the declaration and interfere with the exercise of judicial power by the Court of Final Appeal?

Putting aside this rather strange philological question, would forcing British judges to resign from the court in some way affect the independence of the Hong Kong judiciary? Most would agree it is ludicrous to suggest that Hong Kong’s judicial independence depends on the presence or otherwise of one or two judges from Britain.

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I am sure that the insinuation that the independence of the courts depends on the presence of one or two British judges would be quite offensive to the judges still sitting on our courts, including the foreign judges in the Court of Final Appeal. I note that Lawrence Collins, one of the two judges who have resigned, praised the “total independence” of Hong Kong’s judiciary. If so, what will forcing British judges to resign from Hong Kong achieve?

One needs to understand that the effect of British judges sitting, or not, on our Court of Final Appeal is less than the perception it creates. Both the joint declaration and the Basic Law provide that the court “may as required invite judges from other common law jurisdictions” to sit on it. The Hong Kong government has stayed true to that requirement.

It is the British government that is acting contrary to this understanding. In any event, even if no British judge were to sit in our Court of Final Appeal, our highest court would still refer to common law precedents, including English ones, where appropriate, so the legal wisdom of British judges will not be lost in the development of our jurisprudence.

As to the decisions in individual cases, the foreign judge is but one of five so it is only in the most controversial cases where local judges are deadlocked that the foreign judge might make a difference, as in the recent case involving same-sex rights. Some argue that it is not, in any event, right for foreign judges to make decisions on such controversial issues on behalf of the people of Hong Kong but that they should defer to local judges who understand local conditions best.

Last but not least, foreign judges are, by the fact that they owe allegiance to other countries – especially if their countries are hostile to China or Hong Kong – not suitable for hearing national security cases.

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At the end of the day, one is forced to arrive at the logical conclusion that foreign judges sitting on our Court of Final Appeal is more for perception, or for show, if you like, rather than actually making a difference in the exercise of the judicial function.

We must accept that upon resumption of sovereignty by China over Hong Kong, it was perhaps important to maintain a perception of business as usual when we established a new final appeal court. But 27 years down the road, our Court of Final Appeal has firmly established itself as a court of reason, worthy of international respect. Its decisions are not only well respected but, I am told, also frequently cited in other common law jurisdictions.

So do we still need British judges to shore up our reputation? Some would argue not. Few other places on Earth allow foreign judges to sit on their final appeal court, so should we continue this tradition, for want of a better word, forever?

Do not misunderstand me, I am not advocating the barring of foreign judges from sitting on our Court of Final Appeal. That would require an amendment to the Basic Law, and those in Britain might then turn around and argue that it would be in breach of the joint declaration. The point is, is it worth such a fuss? Especially when the whole thing is nothing but a political ploy, with judges as unwilling participants engineered to discredit one country, two systems in a war of perceptions.

Ronny Tong, KC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy