Hong Kong's judiciary firmly in the common law community

October 27, 2020 11:10
Photo: Reuters

Recently in Hong Kong we received the welcome news of Lord Patrick Hodge’s appointment by Chief Executive Carrie Lam as a non-permanent judge to the Court of Final Appeal (CFA)..

Lord Hodge’s appointment comes at a moment in which our judiciary’s reputation has been taking a hit, from local and international critics alike. Judge James Spiegelman resigned the CFA last month, telling Australian media that his decision had to do with National Security Law (NSL).

Many have suggested that other distinguished international judges will no longer be interested in serving on Hong Kong’s CFA now that the NSL is in effect.

The addition to CFA of the esteemed Lord Hodge should put an end to these concerns.

Lord Hodge, a Scotsman, comes to Hong Kong with a world-class resume. A graduate of Cambridge University and the University of Edinburgh, he has served on the Supreme Court of the United Kingdom since 2013 and is currently its deputy president.

His judicial experience is a good match for Hong Kong. He’s served as a Principal Commercial and Companies judge, an Intellectual Property judge, and as a land valuation court judge. His specialized knowledge of these legal areas should make him an excellent fit for the types of cases that he is likely to encounter here.

And those who may be concerned about whether Lord Hodge can be counted on to rule fairly in matters relating to mainland China should review some of his recent decisions in the UK Supreme Court.

Last August, Lord Hodge ruled against Huawei in what is being called one of the most significant intellectual property decisions in years. Because of Lord Hodge, the Chinese telecom giant will be forced to pay steeper fees in licensing costs on products they sell in the UK. I’m sure that neither Huawei, nor China, is happy about that.

For a judge of Lord Hodge’s calibre to sign on as a non-permanent judge of Hong Kong’s CFA speaks volumes about our judiciary’s global reputation for fairness and integrity. The press and political critics may cast doubts on our judiciary, but Hong Kong continues to enjoy the endorsement of those who truly count-- judges and legal experts from fellow common law constituencies around the world.

When I speak with friends and colleagues from outside of Hong Kong about our legal system, they are often surprised to learn that we have foreign judges serving on our courts. “I thought all of your judges were Chinese,” they often remark.

In fact, with the addition of Judge Hodge, we will have a total of 14 judges from non-Hong Kong common law jurisdictions serving on the CFA ,including former Australian High Court chief justices Robert French and Murray Gleeson and former Australian High Court judge William Gummow.

The non-permanent judges on Hong Kong’s CFA also include the former president of the UK Supreme Court, Lady Barbara Hale, and its current president, Lord Robert Reed. All in all there are now six UK Supreme Court Justices on the CFA--one current, and 5 former. Judge Hodge will make it seven.

Last July, Lord Reed expressed doubts about Hong Kong’s judicial independence in the new NSL era. “The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen,” he told the press.

Lord Reed’s comments were met with concern by the HK legal community. If foreign judges were to quit the CFA, it would create a crisis of confidence in the Hong Kong judicial system, even if there was no factual basis that our legal system had changed. As HKU law professor Simon Young commented, “the exit made by such distinguished jurists would be thunderous and heard around the world.”

A few months can make an enormous difference. Not only does Lord Reed remain on the CFA, but he will soon be joined by his deputy president.

I think that it’s a solid endorsement that judges in international common law jurisdictions are standing with Hong Kong.

This is important because our city’s status as a global centre, and its ability to compete and do business successfully depends entirely on the reliability of its rule of law.

That’s why it worries me when I hear so many complaints from both the pro and anti-government camps, tearing away at the impartiality of our judges and questioning our rule of law.

On one hand, the fact that both sides are complaining about judges’ decisions is a good sign--it means that judges are acting fairly, without favor to one side or another.

However, in the long term, challenging our legal system and judges’ decisions has the potential to do enormous damage to all sectors of society..

If Hong Kong is to continue doing global business, attracting investments and companies, and serving as a top arbitration centre, we have to be seen as a place where everyone can be assured of getting a fair hearing under the law. If we lose this credibility, we lose our value to the world--and our value to China.

Even pro-democracy figures like Philip Dykes, the head of the Hong Kong Law Society, are asking judges in the common law world to continue to support our legal system by sending judges to Hong Kong.

The timing of Lord Hodge’s appointment could not be better. At a moment when Hong Kong’s judicial independence is being questioned, this is a welcome acknowledgement of continued support from the global common law community.

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Executive Council member and former legislator; Hong Kong delegate to the National People’s Congress