Hong Kong’s Overseas Judge System Under Review Amid Rising Geopolitical Tensions

Recently, the US-based World Justice Project published its 2024 Global Rule of Law Index, where Hong Kong maintained its position at 23rd out of 142 countries and regions, halting a three-year decline. Notably, Hong Kong ranks above the United States, which regularly criticize Hong Kong’s legal system but sits at only 26th place.
 
Despite this ranking, the United States and the United Kingdom persist in their campaign to discredit Hong Kong’s judicial system, focusing particularly on the overseas non-permanent judges serving in Hong Kong. Most recently, Australian non-permanent judge Patrick Keane KC was confronted by protesters following a speech at the Supreme Court of New South Wales, where demonstrators pursued him even as he attempted to leave through a side exit, ultimately forcing him to cancel his attendance from a scheduled reception.
 
This campaign targeted at overseas judge is led by the US-based Committee for Freedom in Hong Kong Foundation, which, in May, published a report targeting Hong Kong’s overseas non-permanent judges. This report was subsequently discussed in the British Parliament by anti-China lawmaker Alistair Carmichael, supported by Chris Patten, Hong Kong's last colonial governor. The Foundation’s former chair, James B. Cunningham, previously served as a U.S. Consul General in Hong Kong, underscoring the close Western ties of this organization.
 
Hong Kong initially appointed 15 foreign non-permanent judges, yet today only six remain, four of whom are Australian. Consequently, opposition groups have refocused their efforts on targeting these Australian judges.
 
Hong Kong’s inclusion of foreign judges in its Court of Final Appeal represents an exceptionally open practice. This policy not only underscores Hong Kong’s adherence to common law principles—largely Western in origin—but also, by implication, safeguards foreign interests in Hong Kong. Recently, a senior Singaporean judicial official noted the contrast between Hong Kong’s extensive inclusion of foreign judges and Singapore’s more limited use, restricted to commercial court cases. It’s noted that Canadian Judge Beverley McLachlin, who recently resigned as a non-permanent judge in Hong Kong, also served on Singapore’s International Commercial Court.
 
To understand the origins of this unique judicial structure, one must look to Hong Kong’s colonial period. Under British rule, Hong Kong lacked ultimate appellate authority, with final appeals sent to the UK Privy Council, which held exclusive control over Hong Kong’s final judgments. During the drafting of the Basic Law prior to the 1997 handover, various proposals emerged regarding the location of the Court of Final Appeal, including both Hong Kong and Beijing. A flexible arrangement was ultimately adopted, granting Hong Kong appellate authority while allowing the appointment of non-permanent foreign judges to help build local experience in final appeals.
 
At a time of relatively stable Sino-US relations, this arrangement was largely uncontroversial. However, as US-China tensions have intensified, so too has criticism of Hong Kong’s judicial system, particularly its foreign non-permanent judge system, which has become a focal point.
 
While many overseas judges maintain an apolitical stance, the campaign against them is clearly politically motivated. At the forefront are certain exiled Hong Kong figures purporting to support activist Jimmy Lai Chi-ying, yet Western political figures like Patten and Cunningham lead from behind the scenes. Through persistent harassment, these groups aim to pressure overseas judges into resigning. Many of these judges, well past retirement age—some over 80—have faced demonstrations in public, outside their homes, and even in their neighborhoods, creating significant disruption to their lives.
 
Hong Kong has several options to address this issue:
 
Maintain the Status Quo: A passive approach that would allow foreign judges to either continue or resign at will, thereby retaining as many as possible.
 
End the Foreign Non-Permanent Judge System: Initially, this system aimed to help Hong Kong develop expertise in final appeals and build a pool of qualified judges for the Court of Final Appeal. Now, 27 years after the handover, Hong Kong has a substantial number of qualified local judges, both active and retired, making it feasible to end the appointment of overseas non-permanent judges.
 
Invite Judges from outside the Five Eyes Alliance: The Five Eyes Alliance —comprising the United States, the United Kingdom, Australia, New Zealand, and Canada—is a politically aligned intelligence-sharing network. Continuing to invite judges from these countries could compromise Hong Kong’s judicial independence. Instead, Hong Kong could turn to other common law jurisdictions with robust legal systems, such as Singapore, Malaysia, and South Africa, for supply of experienced retired judges. This approach could provide Hong Kong with impartial overseas perspectives while reducing political risk.
 
Ultimately, Western criticism of Hong Kong’s legal system, especially concerning the National Security Law, often reflects a selective application of standards. Many Western nations, including the United States and the United Kingdom, maintain stringent national security laws. The U.S. ranking below Hong Kong in rule of law indices highlights that these critiques are frequently more politically driven than substantively justified.

Wing-hung Lo

Bastille Commentary

** 博客文章文責自負,不代表本公司立場 **

The District Court has sentenced Editor-in-Chief Chung Pui-kuen and acting Editor-in-Chief Lam Siu-tong to imprisonment for conspiracy to publish seditious materials through Stand News, concluding a nearly two-year trial.

As the U.S. and Western nations criticize Hong Kong for allegedly suppressing press freedom, it is essential to take a critical view to see whether Stand News is simply a media organization.

First, the promotion of nativism is paramount. The nativist movement aims not only to incite hostility toward the Central Authorities and the Hong Kong SAR Government but ultimately to pursue Hong Kong's independence. District Court Judge Kwok Wai-kan, referencing evidence including Stand News' inaugural edition, three editorials, and its physical publication "Lizhi," concluded that Stand's political philosophy is nativist, serving as a tool to disparage the Central and SAR Governments during the anti-amendment to the extradition law protests.

Second, there are significant ties to Jimmy Lai, owner of Apple Daily. Stand News was founded by Tsoi Tung-ho, one of the ten key figures of the Occupy Central movement, who received considerable support from Lai. While Apple Daily operates its own online media and competes with Stand News and its predecessor, The Home News, Lai has shown support for various local media, even financially assisting his rivals. Notably, Lai contracted out to Home News a section called "Financial Center" in Apple Daily's financial edition, paying hundreds of thousands of dollars monthly to aid Choi during a financial crisis. This kind of direct funding in support of a rival is difficult to explain and reflects a complicated relationship of the two media organizations.

Third, there is an alarming influx of undisclosed funding. Following police action against Stand News in 2021, the Secretary for Security froze its assets under the Hong Kong National Security Law, revealing that Stand had over $61 million in funds. Due to the organization’s lack of financial transparency, this amount might have gone unnoticed without police disclosure. An organization claiming to be non-profit yet possessing substantial assets raises questions about the true source of its funding. It remains unclear whether the $61 million was accrued through public support during protests or other undisclosed means.

Additionally, Stand News has intriguing overseas connections. Reports indicate that Evan Fowler, an overseas director of Stand News, co-founded the Hong Kong Free Press (HKFP), known for its anti-China stance, and is an associate fellow of the Henry Jackson Society, a British think tank with close ties to the U.S. and U.K. governments. Recent media coverage suggests that the U.S. and U.K. are leveraging think tanks like the Henry Jackson Society to shape public opinion against China.

Fourth, the Stand News case has not jeopardized legitimate media. The evidence presented in the Stand News case illustrates that it does not function as a typical media organization. The judgment noted that eleven articles published by Stand News incited hatred without objective basis, undermined the Justice Department's prosecution efforts, and spread falsehoods to encourage anti-government sentiment among protesters.

Judge Kwok emphasized that journalists must adhere to Article 19(3) of the International Covenant on Civil and Political Rights, which stipulates that media freedom is not absolute and does not shield one from legal responsibility. The judgment highlighted that journalists bear "special responsibilities and duties," including safeguarding national security, public order, and public health. Citing the European Convention on Human Rights, it reiterated that journalists must operate in good faith, based on accurate facts, to warrant protection under freedom of expression. The European Parliament's Code of Conduct for Journalists also stresses the importance of factual verification and impartiality.

In summary, legitimate media organizations conducting normal interviews and commentary—even critical of the government—would not face sedition charges. It is reasonable to conclude that typical news organizations do not embrace nativism as a core principle, possess vast financial resources, or publish a multitude of incendiary articles in a politically charged atmosphere, as noted by Judge Kwok.

In conclusion, Stand News was not operating as a normal media outlet.

Wing-hung Lo