Exclusive | Exit of 2 UK judges won’t affect top Hong Kong court’s independence, ex-justice chief says
The resignation of two British judges from Hong Kong’s top court will not affect judicial independence, former justice minister Teresa Cheng Yeuk-wah has said, amid questions over whether the system of having foreign justices serving will remain in place over the long term.
The sudden departure of Lawrence Collins and Jonathan Sumption from the Court of Final Appeal on Thursday sent shock waves through legal circles and left only eight overseas non-permanent judges on the top bench.
Cheng, who served as secretary for justice in the previous administration and witnessed the first round of resignations by overseas judges in the wake of political changes in Hong Kong, said the latest development would not affect the judiciary.
“The quality of the appellate mechanism depends on the ability, experience and commitment to the rule of law of members of the bench, and not one’s nationality,” said Cheng, who has rarely commented publicly since leaving the government in 2022.
“We are grateful for the contributions the two [judges] have shared with Hong Kong. Yet, with nearly 27 years of having our own independent Court of Final Appeal, the rule of law will no doubt continue to be upheld and judicial independence practised in accordance with the Basic Law,” she added, referring to the city’s mini-constitution.
Cheng stressed that judicial independence was premised on the ability of judges to decide cases based only on the evidence and the law.
There was not “a shred of evidence” to suggest otherwise, she noted.
“The open court, the well-reasoned judgments made publicly available, the observance of due process and a mature appellate mechanism are the essence of judicial independence,” she added.
Cheng said she stood by remarks she made in 2021 that the central and Hong Kong governments had done nothing to interfere with the independence of the judiciary.
She made the comments following two overseas non-permanent judges – Justice James Spigelman of Australia and former UK Supreme Court president Brenda Hale – leaving after the 2020 enactment of the Beijing-decreed national security law. Spigelman resigned while Hale said she did not want to be reappointed.
In 2022, Britain pulled Supreme Court president Robert Reed and vice-president Patrick Hodge from the city’s top court. Reed had said he was “in agreement with the government that the judges of the Supreme Court cannot continue to sit in Hong Kong without appearing to endorse an administration”.
Collins, whose resignation came to light on Thursday, attributed his departure to the city’s “political situation”.
The exit of Sumption and Collins has reduced the pool of overseas judges on the Court of Final Appeal to eight, almost the lowest since 1997 when there were six.
With Hong Kong being the only common law jurisdiction in China, the city’s mini-constitution states that the Court of Final Appeal “may as required” invite overseas judges to sit on it. The tradition is seen as an indicator of confidence in the city’s rule of law.
Philip Dykes, a former Bar Association chairman, said the presence of overseas judges sitting in the top court without generating controversy was a sign the judicial model implemented through the Basic Law was working as intended.
There would be a greater strain on the model with fewer overseas judges remaining, he warned.
Dykes said an excellent pay package was not what these judges were after. They wanted to still find the city was “a place where they can properly discharge the judicial responsibilities that come with taking the judicial oath”.
He added: “Lords Sumption and Collins obviously feel that they cannot continue.”
Simon Young Ngai-man, a law professor at the University of Hong Kong, said he believed the opportunity to join the top court would still be of interest to many highly talented and experienced jurists from other common law jurisdictions.
“I’ve not seen any of our judges and former judges raise concerns about the rule of law or judicial independence in Hong Kong,” he said.
Young also noted the importance of having overseas non-permanent judges in the judicial system, saying their contribution lay in the wisdom, authority and diversity they could bring to decision-making in the top court.
Grenville Cross, a former director of public prosecutions, noted that two Australian judges had joined the top court in the past two years.
“They enrich our jurisprudence, and can bring useful perspectives to bear which the permanent judges sometimes find useful,” he said, adding that it would be business as usual despite the latest resignations.
Hong Kong is one of the few former UK colonies that has retained a mechanism under which British judges can sit on its top court. Commonwealth jurisdictions such as Australia, Canada, Malaysia and Singapore ditched similar systems as early as decades ago.
Eugene Tan Kheng Boon, an associate law professor at Singapore Management University , argued that the importance of overseas judges “should not be overstated” even though the resignations had fuelled disappointment.
He also said it might be time for the city to consider doing away with foreign judges.
“Hong Kong authorities and the judiciary may wish to bite the bullet and not have foreign judges in the top court,” Tan said, adding it would mean the court comprising Hong Kong judges only would have to let its judgments speak for themselves.
“They will have to show that the court is impartial and independent given the legal regime that governs its jurisdiction, powers and prerogative.”
