Recently BBC News on-line reported the following:
'Becoming a totalitarian state': UK judge on why he quit
Hong Kong court (2/2)
11 June 2024
By Frances Mao, BBC News
(continue)
Why are there foreign judges serving in Hong Kong?
It is a holdover from Hong Kong’s past as a British colony.
After the UK handed Hong Kong back to China in 1997, the
agreement between the countries stipulated that the special territory would
continue to operate with its freedoms and systems for 50 years- including its
common law legal system which operates in several other jurisdictions
worldwide.
Currently there seven foreign judges remaining on the court–
three British and four from Australia. Typically they are very experienced
senior judges who have retired from their countries’ senior courts.
They operate as overseas non-permanent appointees; a typical
appeal bench of five judges at the Court of Final Appeal will see a foreign
judge hearing the case along with three other local judges.
Their presence was long seen as a sort of bulwark protection
to help uphold the British-style common law legal system which has been key to
Hong Kong’s stature as a global financial hub.
As recently as March this year, Hong Kong’s leader praised
the foreign judges saying their appointments "help maintain a high degree
of confidence in (Hong Kong's) judicial system". According to recent media
reports, they are paid £40,000 per case.
Lord Sumption had said most of Hong Kong’s judges are
“honourable people with all the liberal instincts of the common law.”
“But they have to operate in an impossible political
environment created by China.”
Controversial presence
Since Hong Kong’s security laws kicked in, rights groups,
critics and even the UK government had questioned the foreign judges’ continued
presence on the court.
In 2020, a senior Australian judge was the first to step
down from the court. James Spigelman directly cited the impact of the
wide-sweeping National Security Law which hadn’t kicked into operation yet.
Two years later, UK Supreme Court justices Robert Reed and
Patrick Hodge also stepped down following concerns raised by the British
government.
Lord Reed, the chief justice of the top UK court, said he
agreed with the government that serving Supreme Court justices could not
continue to serve in Hong Kong without appearing to endorse a government that
had “departed from values of political freedom, and freedom of expression”.
The remaining judges on the court at the time – which
included Lords Collins and Sumption – issued a statement shortly after
defending their position.
They said they believed their “continued participation”
would be “in the interest of the people of Hong Kong”.
But on Monday, Lord Sumption said he no longer believed
this.
He told the BBC he had chosen to stay on the first few years
"to see how things develop and to hope that one can make a positive
contribution." He had written he hoped "the presence of overseas
judges would help sustain the rule of law."
"It's taken a long time to
conclude that that is not realistic."
His sharp criticism
and the resignations of the other judges will further fuel concerns about Hong
Kong’s status as an international city, particular as the latest resignations
come just weeks after the city implemented a second, even more wide-scoping security
law known as Article 23.
Legal scholar Eric Lai, told the BBC the two British judges
had been “well known” for their support of Hong Kong’s legal system in the past
and their commitment to the court in critical cases.
“Their change of mind to resign signals the worsening legal
environment in HK,” he said.
But the city's authorities defend the integrity of their
legal system.
The chief justice of the Court of Final Appeal said last
week the court would continue to function regardless of the resignations.
Andrew Cheung stressed the court's independence: "All
judges and judicial officers will continue to... administer justice in full
accordance with the law, without fear or favour, self-interest or deceit".
（繼續）
為什麼會有外籍法官在香港服務？
它是香港過去作為英國殖民地的遺物。
1997年英國將香港交還給中國後，兩國之間的協議規定，這個特殊領土將繼續以其各種自由和制度運作50年，包括在全球其他幾個司法管轄區運作的普通法法律制度。
目前，法庭上仍有七名外國法官 - 三名英國法官，四名澳洲法官。通常，他們是從本國高等法院退休的經驗豐富的高級法官。
他們以海外非常任任命者的身分運作；終審法院典型的上訴法庭由五位法官組成，其中一名外國法官與另外三名本地法官一起審理案件。
長期以來，它們的存在被視為一種保護牆，有助於維護英國式的普通法法律體系，而這個體系對於香港作為全球金融中心的地位至關重要。
就在今年三月，香港領導人還讚揚了外國法官，稱他們的任命「有助於保持對（香港）司法制度的高度信心」。據最近媒體報道，每單案件他們的報酬為
4 萬英鎊。
岑耀信勳爵曾表示，大多數香港法官都是「受人尊敬的人，地具有普通法中的所有自由本能」。
「但他們必須在中國搭建出來的不可能的政治環境中運作」。
有爭議性的存在
自香港國安法生效以來，人權組織、批評人士甚至英國政府都對外國法官是否繼續出庭提出質疑。
2020年，澳洲一名資深法官率先卸任。James Spigelman 直接指出了尚未實施的, 廣泛的國家安全法的影響。
兩年後，英國最高法院法官 Robert Reed 和 Patrick
Hodge 也因英國政府提出的擔憂而辭職。
英國最高法院首席大法官 Reed 勳爵表示，他同意政府的觀點，即在香港高法院法任職，不能避免顯得是在支持一個 “背離政治自由和言論自由價” 的政府
。
當時法庭上的其餘法官 - 包括 Collins 勳爵和岑耀信勳爵 - 在辯解自己的立場後不久發表了一份聲明。
他們表示，相信「繼續參與」是會「符合香港人民的利益」。
但在周一，岑耀信勳爵表示他不再相信這一點。
他告訴英國廣播公司，他選擇留在最初幾年「去看看事情如何發展，並希望人們能夠做出積極的貢獻」。他寫道他希望「海外法官的存在將有助於法律規則」。
「我花了很長時間得出結論是這是不切實際的」。
他尖銳的批評和其他法官的辭職將進一步加劇人們對香港作為國際城市地位的擔憂，特別是在最近的辭職是發生在香港實施第二項範圍更廣的安全法, 即 “第23條 幾週之後。
法律學者 Eric Lai 告訴英國廣播公司，這兩位英國法官因過去對香港法律制度的支持以及在關鍵案件中對法院的承諾而「眾所周知」。
他說: 「他們改變想法而去辭職表明香港的法律環境正在惡化」。
但香港政府辯解其法律體系有誠實和堅持原則性。
終審法院首席法官上週表示，不管有出現辭職，法院將繼續運作。
Andrew Cheung(張舉能)強調法院的獨立性：「所有法官和司法人員將繼續……完全依法施法，不畏不偏、不謀私利、不欺騙」。
So,
Lord Sumption gives his warning that the city is
“slowly becoming a totalitarian state” and judges are being compromised by an
“impossible political environment created by China” after the implementation of
Hong Kong’s security laws. In 2020, a senior Australian judge was the first to
step down from the court. Two years later, UK Supreme Court justices Robert
Reed and Patrick Hodge also left their posts. I am wondering will all non-permanent overseas leave Hong Kong
eventually.
Note:
1. The Court of Final Appeal in
Hong Kong is made up of the Chief Justices, Permanent Judges, and non-permanent Judges who can come from Hong Kong or any
overseas Common Law jurisdictions. All
appeal cases are heard by a bench of these five judges. (Wikipedia)
2. Andrew
Cheung Kui-nung, (張舉能) is currently the chief judge of the Court of
Final Appeal of Hong Kong and the designated judge of the Hong Kong version of
the National Security Law. (Wikipedia)
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