Opinion | Court of Final Appeal remains strong and vibrant despite departures

By Grenville Cross

In most jurisdictions, only a country's own nationals can sit as judges on the top court. This is certainly true of, for example, the Supreme Court of the United Kingdom or the United States. In Hong Kong, however, foreign judges are allowed to sit on the Court of Final Appeal (CFA), the court that exercises the power of final adjudication for the Hong Kong Special Administrative Region. This, of course, is remarkable, not least because it sometimes adjudicates upon issues of national importance.

This situation came about for both historical and policy reasons. The Basic Law provides that judges "may be recruited from other common law jurisdictions" (Art.92), and this reflects Hong Kong's unique legal status as the only such jurisdiction in China. The Hong Kong Court of Final Appeal Ordinance (Cap 484) took this one step further, and enables an overseas non-permanent judge to sit as the fifth member of the CFA when it hears appeals, together with the chief justice and the three permanent judges.

Although overseas judges can come from any common law jurisdiction, most have come from the United Kingdom. Since 1997, under an agreement between the then-chief justice, Andrew Li Kwok-nang, and the then-lord chancellor, Lord Irvine of Lairg, two serving members of the UK's highest court have served as non-permanent CFA judges. Some eminent retired judges have also been appointed, and, although they have, thus far, all come from Australia, Canada, New Zealand and the UK, there is no reason why judges from, say, India, Ireland or Singapore should not also be invited to sit.

This arrangement has greatly benefited Hong Kong, and reinforced its credentials as an international city. It ensured continuity after 1997, as the city has always benefited from the involvement of foreign jurists, and it has also enriched the CFA's judgments, some of which enjoy international stature. The involvement of foreign judges has also reassured local people, which perhaps explains why it has always been supported by all sides of the political spectrum.

The rule of law has always been fundamental to Hong Kong's success, and it depends on an independent judiciary. Its courts uphold the principles of criminal justice, resolve disputes impartially, and provide a level playing field for litigants. If, therefore, anybody wants to harm Hong Kong, and thereby weaken China, they need to strike at its legal system, particularly its judiciary, as has recently happened.

Once the insurrection engulfed Hong Kong in 2019-20, those seeking to wreck the "one country, two systems" policy realized that the judiciary stood in their way. Whereas judges held rioters to account and clamped down on black violence, they also issued anti-doxxing orders, and kept the city running. When cases reached the CFA, its judges made clear that violence was intolerable, that the criminal law had to be respected, and that those promoting mayhem faced condign punishment. To teach the judges a lesson, therefore, the fanatics firebombed the CFA, the High Court and the Shatin Magistrates' Court, and threatened judges and their families.

The protest movement also mobilized its foreign backers, many of whom were only too happy to help out. On Nov 6, 2019, for example, the chairman of the British Parliament's House of Commons Foreign Affairs Committee, Tom Tugendhat, took aim at the CFA. Long before anybody had even heard of the National Security Law for Hong Kong, and while judges were struggling to uphold the rule of law in Hong Kong, he tried to undermine the judiciary. He whipped up concerns over the presence of British judges on the CFA, claiming they gave the appearance of UK complicity "in a system that is undermining the rule of law", and this was only the start.

On Sept 18, 2020, the former Conservative Party leader, Sir Iain Duncan Smith, said that the future of all the CFA's overseas judges needed to be considered, as their presence was providing "cover to what is a totalitarian regime". In a particularly vile slur, he declared that, whereas judges in the UK and Australia were "free to reach decisions without fear or favor", this was "not the case in Hong Kong", a brazen lie.

This gibberish, unfortunately, was not confined to the Conservative Party. On June 9, 2021, the Labor Party's Asia and Pacific spokesman, Stephen Kinnock, appeared at a "Stand Up For Hong Kong" rally in London, and engaged in inflammatory ranting at the city's expense. Having declared that its legal system was "completely broken", he said, "Our judges must stop sitting in the Court of Appeal", presumably meaning the CFA, although the difference between the two courts was clearly lost on him.

Few people, however, have tried harder to harm Hong Kong than Britain's erstwhile foreign secretary, the hapless Dominic Raab. On Nov 24, 2020, caving in to the likes of Duncan Smith, Tugendhat and Kinnock, he said he was considering the situation of the British judges on the CFA. He said consultations would be held with Lord (Robert) Reed, president of the UK Supreme Court, over "whether it continues to be appropriate for British judges to sit as non-permanent judges on the Hong Kong Court of Final Appeal". This played very well with those who wanted to undermine Hong Kong's judiciary, but things did not turn out that way, at least initially.

On Aug 27, 2021, on what was clearly good news for Hong Kong, Lord Reed announced that, after reviewing things, he and his deputy, Lord (Patrick) Hodge, would continue to sit in the CFA, adding that the judiciary's decisions "continue to be consistent with the rule of law". His decision, however, went down very badly in some quarters, and the pressure on Reed to rethink, much of it scurrilous, was immediate. Whereas the Labour Party's shadow attorney general, Lord (Charles) Falconer, said the two judges should not let themselves be used by a government that "is undermining the rule of law", Johnny Patterson, Hong Kong Watch's policy director, accused Reed of "providing a veneer of legitimacy to a system which no longer deserves to be considered a bastion of the rule of law".

On March 30, 2022, eight months later, Reed performed a volte-face, announcing that he and Hodge were, after all, resigning. Using highly charged invective, he roundly savaged the government, and, in terminology reminiscent of Tugendhat, Duncan Smith and Kinnock, said he could no longer sit on the CFA "without appearing to endorse an administration" that violated basic values.

This, of course, was quite extraordinary, given the city's commitment to the rule of law and its rich common law tradition, but it was precisely what Raab, now justice secretary, wanted to hear. Indeed, it later transpired that Raab, along with the foreign secretary, Liz Truss, had discussed the resignations with Reed "at length", and that they both welcomed the decision. Although it is not known what pressure, if any, Raab exerted on Reed, what is known is that, in January 2021, in another attempt to undermine Hong Kong's legal system, he pressured the British barrister, David Perry QC, into withdrawing from a trial he was to have prosecuted in Hong Kong, saying he was acting in "a pretty mercenary way" and lacking in "good conscience". Although he is unlikely to have used similar language in his exchanges with Reed, this is clearly an individual who will stop at nothing to harm Hong Kong.

As for Reed, he did at least acknowledge that, despite leaving his fellow judges in the lurch, the "courts in Hong Kong continue to be internationally respected for their commitment to the rule of law", and this may help to limit some of the damage he has caused. As the UK's most senior judge, he will, moreover, be relieved to be free of an ongoing controversy that might have had ramifications for his own court, and he can now concentrate on his home duties. Although his departure, and that of Hodge, is certainly a loss, the CFA is resilient enough to cope without them.

That said, the departures will be regretted by many people in Hong Kong, including Reed's fellow judges, the legal profession, those involved in court proceedings, as well as by ordinary people. Nobody in their right mind can be happy with anything that may harm judicial effectiveness or erode confidence, although certain individuals who do not have the city's best interests at heart were ecstatic, as Reed would have anticipated. Whereas Truss gave the resignations her "wholehearted support", Duncan Smith said he had "cried out for this for some time".

As for Benedict Rogers, the serial fantasist who operates Hong Kong Watch, the anti-China propaganda outfit, he said the two judges "have done the right thing, and we hope all remaining foreign judges will follow suit". He then made the fascinating revelation that "the British government is right to have taken steps to recall them", and this placed the episode in a wholly new perspective. What Rogers let slip, therefore, presumably with insider knowledge, is that the two judges were not free agents, as many supposed, but were instead "recalled" by the government, by which he probably meant Raab and Truss.

In any event, with Reed and Hodge gone, there are now 18 judges left on the CFA, with 10 coming from overseas, and it still has a wealth of talent available to it. Although, as Rogers noted, the overseas judges may also face pressure to resign, they are all retired and no longer on the payroll, and will not be easy to push around. Indeed, some have previously faced pressure to resign, but they have all shown themselves to be people of courage and principle, not quitters. The future of the rule of law is undoubtedly safe in their hands, and those of their fellow judges, and the people of Hong Kong need have no undue concerns going forward.

(Source: China Daily)

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of DotDotNews.

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