Opinion | With British judges resigning, does Hong Kong really need foreign judges anymore?

In recent years, the British government has claimed that these are its judges you shouldn’t sit and giving legitimacy to Hong Kong’s Supreme Court. This is distorted logic. If the British government means by this legal standing, this is obviously wrong. Following the Joint Declaration, the Chinese government established courts in Hong Kong in the exercise of its sovereign power.

If the British Government has moral standing in mind, does this mean that, despite its assertion of the independence of the Hong Kong judiciary in the Joint Declaration, it is morally obliged to act contrary to the Declaration and interfere with the exercise of judicial power by the Court of Final Appeal?

Apart from this rather strange philological question, won’t forcing British judges to resign from court somehow affect the independence of the judiciary in Hong Kong? Most would agree that it is absurd to suggest that the independence of Hong Kong’s courts depends on the presence or absence of one or two British judges.


Hong Kong’s leader and chief justice express regret after British judges resign from the Supreme Court

Hong Kong’s leader and chief justice express regret after British judges resign from the Supreme Court

I am sure that the insinuation that judicial independence depends on the presence of one or two British judges would be quite offensive to the judges still sitting in our courts, including the foreign judges of the Court of Appeal. I note that Lawrence Collins, one of the two justices who resigned, offered praise “total independence” Hong Kong judiciary. If so, what will come from forcing British judges to resign from Hong Kong?

It is important to understand that the influence of British judges, whether sitting or not, on our Court of Final Appeal is less than the impression it creates. Both the Joint Declaration and the Basic Law provide that the court “may, if necessary, invite judges from other common law jurisdictions to serve on it.” The Hong Kong government has remained committed to this requirement.

It is the British Government that is acting against this understanding. In any event, even if no British judge sat on our Court of Appeal, our high court would still refer to common law precedents, including, where appropriate, English, so that the legal wisdom of British judges would not be lost in the development of our jurisprudence.

When it comes to rulings in individual cases, the foreign judge is only one of five, so only in the most controversial cases where local judges are deadlocked can a foreign judge make a difference, as in the recent thing including same-sex rights. Some argue that under no circumstances should foreign judges decide such controversial issues on behalf of Hong Kong residents, but should defer to local judges who best understand local conditions.
And finally, foreign judges, just because they exist owes loyalty to other countries – especially if their countries are hostile to China or Hong Kong – and are not appropriate to hear national security matters.


Hong Kong and Beijing condemn Britain’s withdrawal of the city’s Supreme Court judges over security law concerns

Hong Kong and Beijing condemn Britain’s withdrawal of the city’s Supreme Court judges over security law concerns

Ultimately, one must come to the logical conclusion that foreign judges sitting on our Court of Appeals serve a function of perception or, if you will, display, rather than actually influencing the exercise of power in the judicial function.

We must accept that, with China regaining sovereignty over Hong Kong, it may have been important to maintain the current perception of the situation as we establish a new final court of appeal. However, 27 years later, our Court of Final Appeal has established itself as a court of reason, worthy of international respect. Its decisions are not only respected but, I am told, often cited in other common law jurisdictions.

So do we still need British judges to enhance our reputation? Some say no. Few other places on Earth allow foreign judges to serve on the final court of appeal, so should we, for lack of a better word, continue this tradition forever?

Don’t get me wrong, I am not in favor of banning foreign judges from serving on our Court of Appeals. This would require a change to the Basic Law, and the British people could then turn around and argue that this would be a breach of the Joint Declaration. The only question is: is it worth making such a fuss? Especially when the entire case is nothing more than a political stunt in which the judges are reluctant participants to discredit one country and two systems in a war of perception.

Ronny Tong, KC, SC, JP, is former President of the Hong Kong Bar Association, member of the Executive Council and organizer of Path of Democracy