The city’s leader says judges in Hong Kong are being “unfairly treated” by some departing foreigners

Lee took aim at views expressed a day earlier by outgoing British judge Jonathan Sumption in an article in which he suggested judges must operate under “impossible political conditions created by China” that require “extraordinary courage” to “swim” against such a strong wave political.”

The leader emphasized that judges’ professional knowledge “does not concern politics.”

“A judge may like or dislike a particular system,” he said. “He may also like or not like a particular law, but it is his professional duty to interpret and apply that particular law in accordance with legal principles and evidence, whether he likes that law or not.”

Jonathan Sumption. Photo: Leaflet

On Thursday, Sumption announced he would step down as a non-permanent judge, as did Lawrence Collins, who cited the “political situation” in Hong Kong as the reason, while expressing his “full confidence in the court and the complete independence of its members.”

On Monday evening, Beverley McLachlin announced she would retire this summer at the end of her term, and the former Chief Justice of Canada said she wanted to spend more time with her family. According to Lee, McLachlin cited her 80-year-old age as another factor in her decision.

In his article published in the Financial Times, Sumption pointed to the recent Supreme Court ruling convicting 14 of 16 opposition activists who contested sedition charges in a landmark national security case, calling the decision legally indefensible.

Claiming that the convictions are a “symptom of a growing malaise” in the judiciary, Sumption said the Beijing-imposed national security law, along with the colonial sedition law, severely limits judges’ freedom of action.

“There are constant calls for judicial “patriotism.” “Swimming under such a strong political wave requires extraordinary courage from local judges,” he said, adding that Hong Kong was “slowly becoming a totalitarian state.”

“I remained in court in the hope that the presence of foreign judges would help maintain the rule of law,” he wrote. “I’m afraid that’s not realistic anymore.”

However, in his response, City Leader Lee said Sumption’s statement was “contrary” to his previous position, noting that in 2021 he stated that the rule of law should not be confused with democracy when he made it clear he would not budge against demands from British lawmakers for Western judges to resign.

Lawrence Collins. Photo: Chris McAndrew / UK Parliament

Chief Justice Andrew Cheung Kui-nung acknowledged Sumption’s contribution but also cautioned against any comments about the ongoing proceedings.

“(The judiciary) respects the right of everyone to hold their own views, but opinions expressed publicly may constitute pressure on or interference in the administration of justice by the courts and should be expressed, if at all, with the utmost caution,” he said.

Any suggestion that judges’ decisions were influenced by external considerations is “a serious allegation that must be properly substantiated and should not be made lightly,” Cheung said.

“Disagreeing with a court’s decision is one thing, but suggesting that fundamental rights have been violated for political reasons is a completely different matter,” Cheung said, expressing confidence in the courts’ ability to handle appeals in a fair and professional manner.

Andrew Li Kwok-nang, the city’s first chief judge after the transition from British to Chinese rule in 1997, called the resignation “most regrettable”, saying foreign non-permanent judges had made valuable contributions to Hong Kong.

“It is important that we in Hong Kong move forward with commitment, rather than dwelling on the past,” he said.

Li said local courts are legally responsible for protecting national security and have an obligation to adjudicate matters, including those involving the government, fairly and impartially, in line with their duty to protect individual rights and freedoms.

“We should have full confidence that the courts, under the leadership of Chief Justice Andrew Cheung, will continue to be able to carry out their duties effectively,” he said.

The Bar Association, the professional body of lawyers, said it had “full confidence in the independence of our judiciary”, while calling on the public to support the work of judges.

Beverley McLachlin. Photo: Reuters

Asked about Sumption’s article, Roden Tong Man-lung, the newly elected president of the Law Society representing solicitors, said that lawyers carrying out their duties must be apolitical.

“(That means) commenting simply from a legal perspective, not from a political perspective,” he said.

Veteran Australian justice James Spigelman and former top British judge Brenda Hale previously left as foreign non-permanent members of the high court following the passage of Beijing’s 2020 national security law.

In 2022, the UK recalled the Chief Justice of the Supreme Court, Lord Robert Reed, and the Vice-President, Lord Patrick Hodge, from serving in Hong Kong.