Geoffrey Ma, whose tenure as the second Chief Justice of the Hong Kong Court of Final Appeal recently came to a close, is being hailed by the legal profession for his wisdom and poise in a unique period in the city's history. During his distinguished time as the topmost judge of the Judiciary, former CJ Ma has strived relentlessly to maintain professionalism and fairness in the courts.
In this wide-ranging interview with Hong Kong Lawyer, he talks about his journey till date and the way forward for Hong Kong’s legal system, legal education and legal professionals. Despite a celebrated career, it is evident that for former CJ Ma, the rule of law is the real star of the story and using it to serve the community is the way to go.
What first attracted you to the practice of law, and how did your viewpoint change when you were appointed to the bench?
I was attracted to the law almost as soon as I started at the University of Birmingham in 1974. Prior to that, although I had an uncle and aunt who were lawyers in Shanghai, I took no real interest in legal practice. When I was studying for my A levels in England, I was even at a loss to know what to read at university. It was a stroke of fortune that my elder brother suggested that I consider law. I never looked back. The interest I developed in learning the law stayed with me throughout my practice as a barrister and my career on the bench. It continues to this day. The law is fascinating in its diversity of subject matter, it poses great intellectual challenges and above all, it is relevant to the community. Far from being some sort of ivory tower, the law is there is serve society. There is no other reason for it.
How well do you think the Hong Kong public understands the rule of law?
Anyone who takes an interest in the welfare of the community should have a grasp of the rule of law and its importance within it. Distilled to its essence, the rule of law ensures the proper functioning of a society in which each person is accorded dignity in the way he or she works or lives, and respect for oneself and for others in the community. It also requires an independent Judiciary to enforce the law. With the law affecting us ever increasingly, I believe that more people are becoming interested in learning about its significance. There is no doubt that it can be complex at times, and that is why we have lawyers to explain it and to provide assistance so that rights can be protected. The rule of law is about fairness and equality because these constitute the essence of justice. I believe it to be incumbent on all lawyers to explain the proper meaning and significance of the rule of law to members of the public. Otherwise there is a danger of not truly comprehending the vital importance of this concept.
What achievements are you most satisfied with from your tenure as Head of the Judiciary?
I have often said it is for others to judge my work. Nevertheless, I will say this: I am proud of the professionalism of the judges in the Judiciary. Day in, day out, whether times are good or not, they approach their constitutional responsibilities bearing in mind that they have to do their best to uphold the rule of law, regardless of whatever criticisms are made against them. I am glad that I leave the Judiciary with this degree of professionalism in its ranks. Improvements can of course be made but as long as the fundamentals are there, we can have confidence in the Judiciary.
As Chief Justice, was it challenging to lead the bench of the Court of Final Appeal as well as the Judiciary as a whole?
The challenge for me was to make sure that at all times I was fully aware of the pressures facing the Judiciary and to be able to deal with them to the best of my ability. There is no guarantee that one would arrive at the right answer every time but there cannot be any excuse not to be as prepared as one can be or to fail to do one’s best. Judges look to the Chief Justice to lead and I know of no leader who does not meet challenges head on and who does not make decisions however difficult. There are many problems to which there is no obvious right answer and one simply has to make the best decision in the circumstances. Not confronting problems or skirting difficult issues is not really an acceptable approach. So, the simple answer to your question is -yes, it was at times very challenging.
Looking back, what judgment speech or other law related written work are you most proud of and why? How have your views changed since you wrote it? What would you change if you were to write it again now?
The most important judgments have obviously been the public law and constitutional ones because they tend to engage the public interest more than in other areas. These are the judgments that have also caused the most controversy, even at times attracting considerable criticism. Whatever the reactions have been, even with hindsight I do not see how any different a result should have been reached in those cases, even if some of the criticism or controversy could have been avoided by a different outcome. This is consistent with the judicial method: cases are decided according to the law, legal principle and the spirit of the law, and nothing else. They are not decided with a view to the outcome of a case being popular or whether it may be politically acceptable. But your question also asks which judgment I am most proud of. Here, I have a personal favourite. It is Hua Tyan Development Ltd v Zurich Insurance Co Ltd (2014) 17 HKCFAR 493. It is not a particularly important or complex judgment but I have (since my days in practice) always wanted to write a judgment on marine insurance. Cases in this area of the law rarely come before the courts.
In your farewell speech, you advised CJ Cheung to always be guided by his principles, for it is these principles that will see him and the community through all seasons. What are some of the principles that guided you during your tenure and how did they help you?
The overriding principle for me has always been being true to the judicial oath I took when I became a judge. It encapsulates in solemn form the meaning of the rule of law. The oath is not a mere formality. It is quite the opposite: it defines the essence of the responsibilities of a judge.
There were fears that you may be a “conservative” judge when you assumed office a decade ago and today there are similar thoughts on CJ Andrew Cheung. In your case, it turned out to not be the case. How do you interpret the word “conservative” when it comes to judges and why might people be fearful of such a quality?
I have always been somewhat skeptical of labels for judges such as “conservative” or “liberal”, particularly if they carry political undertones as well. I know many people like to use labels for judges, particularly lawyers and academics. As I have said, judges decide cases according to the law, legal principle and the spirit of the law. There is no room to introduce another factor to judging, much less impose a personal trait. Very often labels are descriptive only by reference to the outcome in cases, especially those having political origins (these being cases usually involving the government as a party). It can be as simple as: if the court decides in favour of the government, it is “conservative”; if the government loses, then the court is a “liberal” one. I was indeed described as being conservative when I became Chief Justice in 2010: this was on the basis that I had held in favour of the government in some high profile cases when I was in the Court of Appeal and that I had represented the government in a number of public law cases when I was in practice.
How do you feel judicial independence should best be balanced against the power of the NPCSC to interpret the Basic Law?
The two are not incompatible. Of course, under the Basic Law, the NPCSC has the power to give authoritative interpretations of the provisions of that Law and the Hong Kong courts are bound to give effect to such interpretations. This does not, however, affect the independence of the Judiciary (which is also prescribed under the Basic Law).
What are some of the main developments during your tenure as Chief Justice that you feel particularly shaped the Hong Kong Judiciary to what it is today and what do you think are fundamental issues or threats the Judiciary faces till today?
One of the more noticeable developments in Hong Kong since the exercise of the resumption of sovereignty in 1997 has been the interest shown by the community in the law and the work of the courts. The past ten years has seen this interest increase. This is a healthy trend because it is important that the community should try to understand the concept of the rule of law and our system of law. Afterall the law is an important part of the society in which we all work and live. That said, it is important that the law and rule of law are properly understood and not be distorted. I have constantly spoken out (as indeed have both my predecessor Chief Justice Andrew Li and my successor Chief Justice Andrew Cheung) that the work of the courts must not be politicised.
How do you see the future development of the legal professions in Hong Kong? Is a fused profession likely or desirable in your view?
There has not been much discussion in recent years about fusing the legal professions. But the way forward for the professions should be directed to serving the public interest by concentrating on the law and the rule of law. These are the only matters on which the community can reasonably expect the professions to comment.
What is your view on legal education in Hong Kong today? What should the educational institutions be focusing on?
I think that on the whole, the law schools in Hong Kong are doing very creditably. This is demonstrated by the quality of the lawyers practising in Hong Kong, some of whom are among the best I have seen in any common law jurisdiction. If I had to suggest an area in which it is worthwhile emphasising at law school, it would be the rule of law, pure and simple, shorn of political considerations.
What would you like to see as your legacy?
It is far too grandiose to talk in terms of a legacy. Judges and chief justices should not be talking in terms of leaving a legacy. They should strive instead on their retirement to feel that they have done their best to have served the community, upheld the rule of law and abided by their oath. No one could ask for more than that and judges should not expect anything less of themselves.
Knowing what you know now, having served for more than a decade, would you have approached the role in any different way? If you had the chance to do it all over again, what would you do differently?
You have saved the hardest question to answer for last! It is tempting of course to say that one would have avoided certain pitfalls and mistakes if one had known certain things but it is of course pointless thinking along these lines. The fact is that in real time decisions had to be made and one simply had to do the best that one could in the prevailing circumstances. Often there was no obvious right answer and many decisions involved the balancing of many factors. The important thing for a Chief Justice to remember is that when a decision has to be made, make the decision. Without doubt, this is always the only option. Not making a decision is the worst of all options.
6 January 2021 at The Court of Final Appeal
This is an abridged version of the speech, for the full version, please visit https://www.info.gov.hk/gia/general/202101/06/P2021010600683.htm
The rule of law represents in any community the necessary foundation to enable all who live and work in it to do so with dignity, and to do so acknowledging the interests of others. That is why it is said to be a cornerstone of the Hong Kong community. It is not just about being conducive to business and investment. It also includes the recognition and enforcement of those rights we call human rights and fundamental freedoms (such as the freedom of assembly, of procession, of association and the freedom of the press), always of course recognising as well the importance of the respect for the rights and entitlements of others in the community. The importance we place on rights and freedoms is a fundamental feature of the Basic Law. That constitutional document, which was enacted by the National People’s Congress in accordance with the Constitution of the People’s Republic of China, remains the starting point in any discussion about Hong Kong’s system of government.
The Basic Law devotes a whole chapter in Chapter III to the fundamental rights and duties of residents. Chapter I sets out the general principles that govern Hong Kong beginning with Article 1 stating that the HKSAR is an inalienable part of the PRC, followed by Article 2 which prescribes that Hong Kong is to enjoy, among other matters, independent judicial power. The concept of independent judicial power is repeated in Article 19 (in the chapter dealing with the relationship between the central authorities and the HKSAR) and in Article 85 (under Chapter IV “Political Structure”) requiring the courts in Hong Kong to “exercise judicial power independently, free from any interference”.
So, whenever there are discussions about the rule of law, the independence of the Judiciary and the role and responsibilities of judges in relation to these fundamental features, the foundation for such discussions must be to refer to the Basic Law.
And let there be no misunderstanding as to what the independence of the Judiciary means. The independence of the Judiciary, which is at the heart of the rule of law, is the guiding concept that underlines the way judges discharge their constitutional responsibilities. The role and responsibilities of the Judiciary are clearly and unambiguously set out in the Basic Law. The independence of the Judiciary means in essence the responsibility and duty imposed on the courts to adjudicate on the law and on legal disputes fairly, evenly and strictly in accordance with legal principle and the spirit of the law. Underlying this is the recognition, again required under the Basic Law, that all are equal before the law and this of course includes the executive authorities. To repeat a phrase that bears reminding at all times: no one is above the law, all are subject to it and everyone is equal in the eyes of the law. Not only that, no one is able to influence the court in the adjudication of a legal dispute, whether civil or criminal. All this guarantees fairness and justice.
When I became a judge in 2001, like all judges, I took an oath of office (this oath is required under the Basic Law) to uphold the Basic Law, to discharge my judicial duties “conscientiously, dutifully, in full accordance with the law, honestly and with integrity” and to “safeguard the law and administer justice without fear or favour, self-interest or deceit”. The judicial oath is a solemn promise to ensure that justice is done, is seen to be done, and that nothing and no one will be allowed to influence a judge to act or compromise in any way the demands of this oath.
The constitutional model mandated under the Basic Law is that of “one country, two systems”. I have always placed great emphasis on the need to have meaningful exchanges with the Mainland courts to enhance mutual understanding of the two legal systems. I wish to acknowledge my gratitude to [successive Presidents of the Supreme People’s Court ] and to the other judges of the Court and also to the many other Mainland judges whom I have met, for their insight and exchange of views. These mutual exchanges and cooperation must, I firmly believe, continue to strengthen.
The Hong Kong Judiciary does not comprise a large number of judges (I include in this term judicial officers such as magistrates). Hong Kong’s judges are dedicated to the practical implementation of the rule of law as I have described and represent the embodiment of the independence of the Judiciary. Throughout my tenure as a judge and particularly in the last ten years as Chief Justice, I can say that I remain proud of all the judges in the way they have fearlessly and without compromise upheld the law and been true to their oath. Whether the political, social or economic atmosphere of Hong Kong has been good or not, the judges have discharged their responsibilities consistently and conscientiously, without regard to the type or level of criticism that may be directed against them. It is comforting to know, as I believe, that the vast majority of our community has confidence in them and find reassurance in the principled way they carry out their daily work.
For my part, I wish to express my deep gratitude to our judges. They have almost invariably given me their wholehearted support and have played their proper role in the administration of justice. For the future I wish to say it is essential that the highest standards, not only of ability but also of integrity, are observed and maintained. It is also critical that judges remain apolitical in the discharge of their duties.