Overseas Non-Permanent Judges

Section 4 of our Basic Law sets out the constitutional framework of the judiciary of Hong Kong. The judicial system remains the same as it was before 1 July 1997 except with the changes consequent upon the establishment of the Court of Final Appeal (“CFA”) which has the power of final adjudication. The courts shall adjudicate cases in accordance with the laws applicable to Hong Kong and may refer to precedents of other common law jurisdictions. They shall exercise judicial power independently, free from any interference.

More than two decades have passed since 1997. The constitutional framework of the judiciary has remained intact, notwithstanding the frequent unfair and unfounded attacks, which were apparently fuelled by political motives, at the judiciary attempting to threaten judicial independence. The latest challenge came with the recent call by the President of the UK Supreme Court to British judges in the CFA to quit as a kind of political protest.

It is perhaps a timely opportunity to explain a bit more on the appointment and the role of overseas judges in Hong Kong.

As the final appellate court in Hong Kong and acting in accordance with the Court of Final Appeal Ordinance (“Ordinance”), the CFA hears civil and criminal appeals involving legal issues of general or public importance.

A distinguishing feature of the constitution of the CFA is that in addition to the Chief Justice and permanent judges, there is a panel of non-permanent judges (“NPJs”) from Hong Kong and other common law jurisdictions invited as required to sit on the CFA. The terms of appointment of NPJs are clearly set out in the Ordinance.

To be eligible for appointment as a judge from another common law jurisdiction, one must be ordinarily resident outside Hong Kong, must be a judge or retired judge of a court of unlimited jurisdiction in either civil or criminal matters in another common law jurisdiction and must have never been a judge of the High Court, a District Judge or a permanent magistrate, in Hong Kong. The term of office of a NPJ is 3 years, but it may be extended by the Chief Executive acting in accordance with the recommendation of the Chief Justice. Once appointed, a NPJ, same as other Hong Kong judges, is required to take the judicial oath to uphold the Basic Law, serve Hong Kong conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.

The total number of NPJs shall not exceed 30 at any one time. There are currently 18 NPJs, out of whom, 14 are from other common law jurisdictions including the UK, Canada and Australia.

Pursuant to section 16 of the Ordinance, an appeal shall be heard by a “4+1” formula, i.e. by the Chief Justice (or a permanent judge designated to sit in his place), three permanent judges nominated by the Chief Justice; and one NPJ from Hong Kong or another common law jurisdiction selected by the Chief Justice and invited by the CFA.

The participation of overseas NPJs, who have made significant contributions to the development of jurisprudence in their own jurisdictions, brings with them a diversity of international judicial experience in different specialised areas of law that enriches the perspectives of the court.

NPJs are all eminent judicial officers highly respected in their own jurisdictions and committed to the fair administration of justice in accordance with the law. Their acceptance of the appointment as NPJs to sit on the city’s top court sends a clear message of their confidence in Hong Kong’s judicial system in upholding the rule of law and judicial independence.

Political differences should be resolved in the political arena. Attempts to interfere in the constitutional framework of the judiciary, which has worked well in safeguarding the rule of law and judicial independence, by political boycotts must cease.

As The Right Honourable Lord Sumption, one of the NPJs, put it, participation in political boycotts is not the proper function of judges.

It is pleasing to note that three NPJs, The Honourable Mr Justice Murray Gleeson, The Right Honourable the Lord Neuberger of Abbotsbury and The Right Honourable the Lord Walker of Gestingthorpe, have just extended their term for another 3 years from 1 March 2021.

On this note, we extend our deepest gratitude to the distinguished NPJs from other common law jurisdictions for bringing new perspectives in the jurisprudential development of Hong Kong through their participation in the work of the CFA. Their support of the unique model of the 4+1 formula is one of the key factors in the success of the CFA since its establishment in 1997 and we look forward to their continual support.

President

The Law Society of Hong Kong