Opinion | Court of Final Appeal: Overseas judges must prioritize service over politics

By Grenville Cross

The rule of law has always been fundamental to the success story that is modern Hong Kong, and its custodian is the judiciary. So long as its legal system is protected by capable, independent and professional judges, the city has a bright future. Anybody, therefore, who wants to undermine the "one country, two systems" policy knows the judiciary stands in their way, which is why its judges have been targeted in the West.

After the insurrection in 2019, the overseas non-permanent judges who sit on the Hong Kong Court of Final Appeal (HKCFA) were targeted. They came under pressure to resign from foreign powers sympathetic to those who tried to wreck the Hong Kong Special Administrative Region and undermine China. In late 2019, for example, the British parliamentarian Tom Tugendhat, now the UK's security minister, called for the role of the British judges sitting on the HKCFA to be reviewed.

The campaign gained momentum with the enactment of the Hong Kong National Security Law (NSL) in 2020. The overseas judges from Australia, Canada and the UK found themselves in the firing line, but most stood firm, at least initially. The campaign, therefore, increased the pressure, and everything was done to besmirch the Hong Kong judiciary.

In 2020, for example, Sir Iain Duncan Smith, the former UK Conservative Party leader, told the Sydney Morning Herald 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 vile calumny.

However, this was not how the HKCFA's overseas non-permanent judges saw things. The former chief justice of Canada, Beverley McLachlin, explained that the HKCFA "is completely independent and functioning in the way I was used to in Canada". She added, "There's no governmental influence, and, if there were, I wouldn't be there".

Sadly, this did not prevent the then UK foreign secretary, Liz Truss, from claiming in 2022 that the presence of British judges in Hong Kong's legal system "risked legitimizing oppression".

On March 30, 2022, after meetings with the government, two British judges who sat on the HKCFA as non-permanent judges, Lords (Robert) Reed and (Patrick) Hodge, threw in the towel. Unlike the UK's other overseas judges, who were all retired, they were still serving in the UK Supreme Court, meaning they were on the government's payroll (and controllable). Although everybody claimed the two judges made up their own minds, the former governor, Chris Patten, also the former chairman of the governing Conservative Party (and privy to its internal dealings), knew otherwise. On Nov 6, 2022, he told the journalist Howard Davies that Truss had told the judges not to sit on the HKCFA any longer. He said, "I thoroughly disapprove of politicians telling judges what to do", and called Truss's remarks "a very damaging thing for her to have said".

In 2023, the US Congressional-Executive Commission on China upped the ante. It called upon the US government to "consider imposing sanctions" on 29 Hong Kong judges, some of whom were British nationals, who had presided over national security cases, whether at trial or on appeal. This must have been unnerving for the potential victims, but, as professional jurists, they refused to buckle to outside threats, at least for the most part.

On June 6, 2024, two other British judges sitting on the HKCFA, Lords (Lawrence) Collins and (Jonathan) Sumption, suddenly announced their resignations. Whereas Collins had been a non-permanent judge since 2011, Sumption became one in 2019, and each made a sterling contribution to the city's jurisprudence. Each, moreover, had been a doughty defender of Hong Kong, with Sumption, for example, having highlighted how the NSL has in-built human rights protections. Their ill-judged move will have disappointed their admirers, who expected more of them.

Although Collins stressed he still had the "fullest confidence" in the HKCFA and the independence of its members, he said he was leaving "because of the political situation in Hong Kong", which made little sense. After the turmoil of 2019-20, the city is once again a safe place to live and work, and the common law system is now secure, up to and after 2047. If the judiciary was no longer functioning independently, his departure might have been understandable, but he made no such claims. It is, therefore, extraordinary that he abruptly walked away from his responsibilities and left the chief justice, Andrew Cheung Kai-nung, and his other colleagues, in the lurch.

In explaining his resignation, Sumption went further than Collins and put the boot into all and sundry (including the judiciary, which he found wanting). This surprised everybody who recalled his words in 2021, when he told The Times that the overseas judges "will serve the cause of justice better by participating in the work of Hong Kong's courts". He even announced then that "as a Hong Kong judge, I serve Hong Kong people" and that "I must be guided by their interests and not by the wishes of UK politicians". Fine words indeed, but now forgotten.

As if he were a prosecutor trying to build a case against a criminal suspect, Sumption, in an article for the Financial Times, highlighted what he claimed were problem areas in Hong Kong's legal system. The rule of law, he claimed, was "profoundly compromised", which must have come as a surprise to his fellow judges, who spend their days upholding it. His analysis was fundamentally flawed, and no prosecutor in their right mind would have proceeded with such a weak case. Whereas he has been called "the cleverest man in Britain," he can no longer see the wood for the trees.

Although the legal proceedings involving the trials of the 14 defendants who were found guilty on May 30 of conspiracy to subvert state power have not concluded, he chose to intervene, which is taboo, as any judge should know. He declared they were not guilty, even though he had heard neither the evidence against them nor the legal submissions. Although the defendants had sought to paralyze the Legislative Council, provoke a constitutional crisis and wreck the "one country, two systems" policy, he concluded the verdicts were "legally indefensible" and "the last straw". In an astonishing slur on the trial judges, he told the BBC that their judgment "was a major indication of the lengths to which some judges are prepared to go to ensure that Beijing's campaign against those who have supported democracy succeeds". This was slanderous, as anyone familiar with the integrity of the judges involved can attest. It is open to the defendants to challenge their convictions up to the HKCFA, although he will no longer be there. That is fortunate, as he has already prejudged the issues.

Sumption also indulged in some cheap shots over the power of interpretation of the Basic Law, vested in the Standing Committee of the National People's Congress (NPCSC). He said the power was one about which "every judge knows", although it did not seem to bother him when he joined the HKCFA in 2019, or when he defended Hong Kong in 2021. He did not explain his volte-face, and his muddled thinking shone through. He even claimed the 2022 NPCSC interpretation concerning the admission of overseas lawyers to conduct national security cases arose under the Basic Law when, in reality, it derived from the NSL.

Although Sumption wanted to alarm his readers by giving the impression that the judges were forever looking over their shoulders at possible NPCSC interpretations, he failed to give them chapter and verse. This was unsurprising, as the power has always been exercised with great restraint. It is 27 years since the Basic Law became operational in 1997, yet the NPCSC has only issued five interpretations before 2022 (about once every five years and five months), and not one concerned a criminal matter. In the four years since the NSL was enacted, there has only been one interpretation. It is illuminating that Sumption did not share any of this information with his readers, although the reasons are not hard to find.

A self-publicist, he wanted to sensationalize his resignation while also providing the anti-China lobby with manna from heaven. Although not much has changed since he sprang to Hong Kong's defense in 2021, he wanted to put the city in the worst possible light. It is hard to think of any other explanation for insulting his former colleagues by suggesting that "many judges have lost sight of their traditional role as defenders of the liberty of the subject". As he should have known, Hong Kong has one of the most professional judiciaries in the Asia-Pacific region, and its judges, in the words of the judicial oath, "administer justice in full accordance with the law, without fear or favor, self-interest or deceit".

As Sumption must have realized, the individual judges were unable, given the constraints of office, to rebut his slurs. However, the chief justice, Andrew Cheung Kui-nung, spoke for the entire judiciary when, on June 11, he said, "Any suggestion that their decisions have been or may be influenced by extraneous considerations, political or otherwise, is a serious allegation that must be duly substantiated and should not be lightly made".

Although, moreover, everybody is entitled to their views, Cheung emphasized, in an apparent reference to Sumption's ill-judged comments about the guilty verdicts of the 14 defendants, that "opinions voiced publicly could amount to pressure on or interference with the courts' administration of justice and should be expressed, if at all, with the greatest circumspection". There was a time when the likes of Sumption did not need to be reminded of such self-evident truths, but Cheung spoke for everybody who values the rule of law.

If Collins and Sumption felt they had to leave, they could, out of respect for Hong Kong and its judiciary, have served out the remainder of their contracts and departed quietly. This, after all, is what their fellow overseas judge, Canada's Beverley Mclachlin, did on June 10, when she said that, given her age (80), she would not be seeking a further appointment when her term expires on July 29. She said it had been "a privilege serving the people of Hong Kong", and she retained her "confidence in the members of the Court, their independence, and their determination to uphold the rule of law". Although a dignified exit like McLachlin's would have been the decent thing for Collins and Sumption to have done, they have left a bad taste in everybody's mouths and delighted those who wish China ill.

Their actions have provided succor to the anti-China forces everywhere, particularly those who are always on the lookout for negative news about Hong Kong. They have not only done Hong Kong a disservice, but also diminished themselves in the process.

Some people, however, were ecstatic. Whereas the convicted felon and fugitive offender, Ted Hui Chi-fung, described the resignations as "a vote of no confidence", the serial fantasist Benedict Rogers, who runs Hong Kong Watch, the anti-China hate machine, hailed the "good news...better late than never". The resignations were "extremely welcome" for Alyssa Fong, the public affairs and advocacy manager for the US-based Committee for Freedom in Hong Kong Foundation (CFHK), which claimed last month that the HKCFA's 10 overseas judges were lending legitimacy to a crackdown on political freedom in Hong Kong. From Australia, another criminal fugitive, Kevin Yam Kin-fung, weighed in, claiming the resignations showed the judges "have lost confidence in the city's executive and legislative systems".

If Collins and Sumption are happy to be the poster boys of the likes of Hui, Rogers, Fong and Yam, then so be it. It must, however, be hoped they do not go the whole hog, and become patrons of Hong Kong Watch or CFHK.

The news, however, is not all negative. Most of the HKCFA's remaining overseas judges have confirmed, in emphatic terms, that they will remain faithful to Hong Kong. For example, Australia's former chief justice, Robert French, announced he would continue to "support the judges of the Court of Final Appeal in their commitment to the rule of law and judicial independence". The former president of the UK Supreme Court, Lord (David) Neuberger, declared he had "great respect" for his colleagues in the HKCFA, and would continue to "support the rule of law in Hong Kong, as best I can". As Neuberger is arguably the UK's greatest jurist, his unflagging support of Hong Kong and its judiciary is significant, and will hopefully go some way towards restoring the faith of the chief justice, Andrew Cheung, in British honor.

Although Cheung will naturally be bitterly disappointed by the four British judges who have let everybody down, he need not despair. The remaining judges know where their duty lies and will continue to serve Hong Kong to the best of their ability.

Cheung, moreover, retains his confidence in the appointment system. Responding to the resignations, he said "suitable candidates from overseas common law jurisdictions will continue to be appointed to the Court as non-permanent judges", which is good news. If the UK can no longer be trusted to the extent it once was, he has other options, apart from Australia and Canada.

Although all the overseas judges since 1997 have come from Australia, Canada, New Zealand and the UK, the world is Cheung's oyster. In the future, he can look elsewhere in the common law world. There will, for example, be eminent jurists in places like India, Ireland, Malaysia, Singapore and South Africa who would jump at the chance to serve on the HKCFA. No one jurisdiction has a monopoly on judicial wisdom, and there is much to be said for casting the net more widely.

The resignations of the two judges are a setback, but also an opportunity. If overseas jurists want to play politics and are not genuinely interested in contributing to maintaining the rule of law, Hong Kong is better off without them. By sitting on the HKCFA, the overseas jurists, like their local colleagues, serve the people of Hong Kong, and the Court only needs people who are entirely focused on this objective.

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

The article was first published in China Daily.