Foreign interference in Hong Kong’s judiciary “deplorable”

Mark Pinkstone/Former Chief Information Officer of HK government

The arrest and subsequent trials of Apple Daily publisher Jimmy Lai and radicals involved in riots in 2019-20 have been used to weaponize Hong Kong’s judicial system.

The Chief Justice, Andrew Cheung, hit out at critics undermining the rule of law in Hong Kong during the opening of the Legal Year on Monday by describing the politization of the Court as “deplorable”.

He was referring to the resignation of Judge Jonathan Sumption who wrote in the Financial Times on June 10 last that "Hong Kong, once a vibrant and politically diverse community is slowly becoming a totalitarian state. The rule of law is profoundly compromised in any area about which the government feels strongly," This, of course, was the weapon the China/Hong Kong hawks needed to degrade our legal system.

Other judges said they resigned for personal reasons, and this may well be the case. They are an ageing lot and came out of retirement to serve in Hong Kong.

Article 85 of the Basic Law specifically guarantees that the judicial power shall be exercised independently and free from any interference. These are not a mere form of words, but a constitutional mandate that has always been and continues to be vigorously upheld by our judicial system.

Judges, far from being designed to serve political ends, are bound by legal principles. Courts are not arbiters of public opinion, nor are they an extension of the prosecution authority; they are, above all, guardians of the law. Their decisions are reasoned, published, and subjected to appeal. It is through this process that the rule of law is upheld.

The presence of overseas judges, said Cheung, has long stood as a symbol of Hong Kong's commitment to legal excellence and judicial independence. It is unfortunate that a few of these judges have felt unable to continue their service. They are, of course, entitled to their views, and their decisions ought to be respected. However, their premature departures does not mean a weakening of the quality or independence of the Judiciary. It is true that, given the current geopolitical headwinds, recruiting overseas judges with the right stature and experience may be less straightforward than it once was. Overseas judges are appointed to our highest court on account of their acknowledged eminence and legal expertise, not merely to sustain the system of overseas judges for its own sake. Still, as the Court of Final Appeal continues to include both highly esteemed overseas and local non-permanent judges, and their continued participation, speaks to the enduring strength and resilience of the Court.

Despite the number of resignations, one must not overlook that Lord Neuberger, the former President of the Supreme Court of the United Kingdom, has agreed to extend his term for three years from March 1, 2024; and Justice Allsop, the former Chief Justice of the Federal Court of Australia, was appointed for a term of three years from May 24, 2024. And most recently, Lord Hoffmann, the longest serving foreign judge was first appointed back in 1998, has been reappointed for another three years from January 12 this year.

The judges have been severely criticised by their respective governments for serving in Hong Kong and following the rules laid out in the national security laws. These laws are precisely the same as their own and have been adapted into Hong Kong’s local laws, a hybrid of the British local system.

They have also come under pressure from their peers. Many judges, like Sumption, are members of the British House of Lords and are undoubtedly influenced by fellow lords, including Lord Chris Patton and Lord David Alton, both patrons of China Watch, a rapid anti-Hong Kong/China group hell-bent on destabilising Hong Kong.

The historical rationale for the presence of overseas judges in our highest court is clear. In the 1990s, Hong Kong lacked senior judges with experience at the final appellate level. Pre-1997 these were held in London by the Privy Council, selected from the House of Lords. This posed a challenge for filling the judicial positions to be created following the establishment of the Court of Final Appeal in 1997 to replace the Privy Council in London as Hong Kong's ultimate appeal court. The appointment of distinguished overseas jurists as part-time, non-permanent judges to our highest court therefore addressed the inevitable shortfall and served the further purpose of instilling confidence in Hong Kong's judicial system in the post-1997 era.

Secretary for Justice, Paul Lam SC, weighed in with anyone who intimidates judges handling national security cases or interferes with the relevant judicial proceedings in whatsoever manner cannot be genuinely concerned about the rule of law in Hong Kong.

“Over the years,” he said, “the contributions of these overseas judges to the work of the Court and to the upholding of the rule of law have been immense and have been rightly recognised. During this same period, through the efforts of many, the Court of Final Appeal has firmly established itself as a prominent final appellate court within the common law world.”

In the 2024 World Justice Project Rule of Law Index, Hong Kong remained unchanged as it continued to rank sixth in the East Asia and Pacific region and came 23rd out of 142 countries and jurisdictions globally.

One of the difficult tasks of the appeals judges is defining free speech, the defence used by appellants, and opinion. Many journalists and academics write opinions on current affairs in newspapers and other media, often criticizing the administration. This is known as fair comment. However, others write with false claims in the name of free speech and if it is aimed at a person or corporation, the author can be sued for slander or defamation of character. If it is written against the government, there is little government can do except issue a rebuttal. And this is where the national security laws comes into play.

These laws apply in all countries, not only Hong Kong. Hong Kong has had serious experiences in the misuse of opinion as free speech where it instils hatred against the administration and misunderstanding of the law, resulting in many cases being brought before the courts on charges of subversion.

The national security law has brought peace and stability to Hong Kong and Hong Kong is safer than most places in the world with our legal system being untouchable.

Mark Pinkstone

** The blog article is the sole responsibility of the author and does not represent the position of our company. **

Mark Pinkstone/Former Chief Information Officer of HK government

Is the proposed sale of the Cheung Kong Hutchison (CKH) shipping ports at either end of the Panama Canal an astute business deal or a bold political takeover? It can be argued both ways.

The Chinese side of the pendulum foresees doom as the sale would increase the US hegemony over global shipping because the sale includes not only Hutchison’s two shipping ports, but 80 per cent of all of Hutchison’s 43 ports world-wide. The intended principal buyer is BlackRock Inc., a major US financial and investment conglomerate.

The business side of the pendulum sees it as a major business deal worth US$23 billion.
The proposed sale drew the ire of China's Hong Kong and Macau Affairs Office (HKMAO), which reposted a Ta Kung Pao commentary criticising the CKH port deal with U.S. investment firm BlackRock as a betrayal of China, sending shares of CKH sharply lower on March 14.

The commentary said the U.S. would constrain China's maritime trade, and Chinese companies would face great risks in logistics and supply chains, impacting China's Belt and Road initiatives.
"This deal is an act of hegemony by the US, which uses its state power to infringe upon the legitimate rights and interests of other countries through despicable means such as coercion, pressure, and inducement," the commentary wrote.

"It is power politics packaged as a 'business behaviour'."

The in-principle agreement with the BlackRock-led consortium gave the two sides 145 days to hammer out specific terms and details before finalising the transaction, according to a Hong Kong Stock Exchange statement by CKH. Also, the deal will need to be approved by CK Hutchison’s shareholders, obtain approval from the Panamanian government, and meet unspecified customary terms agreed by the two sides, according to the statement “After the Panama Canal has been ‘Americanised’ and ‘politicised’, the US will definitely use it for political purposes and implement its own political agenda, and China’s shipping and trade here will certainly be subject to the US,” Ta Kung Pao wrote in a series of articles blasting the sale.

US president Trump announced immediately after his inauguration in January that he would “recover” the Panama Canal, which was owned by China. He was totally wrong. The Panama Canal is owned and operated by Panama, and the ports at each end are owned by Panama Ports Company, a subsidiary of Hutchison Port Holdings, a further subsidiary of CKH But it’s obvious that kicking China (via Hutchinson) out of Panama had been planned for some time.

Immediately after his inauguration, Trump sounded out potential buyers for the ports and had a meeting with BlackRock’s CEO Larry Fink in the White House. Fink is an old billionaire buddy of Trump. After that meeting, Trump sent his right-hand man, Secretary of State Marco Rubio, off to Panama to sort things out. And, by sheer coincidence, within a month, a deal was made for the sale of the ports.

Meanwhile, Reuters reported that Trump is planning an executive order to charge fees for China-linked vessels in the US. ports, in a bid to resuscitate American shipbuilding and disrupt China's supply chains.

But Li Ka Shing (96) retired, but still an advisor to the company, and his son Victor (60), now chairman of CKH, are businessmen like Trump. And a deal is a deal.

The disposal was primarily driven by an attractive valuation by wealth management firm Morningstar of the ports’ worth undertaken by CKH. Zerina Zeng and Zoey Zhou from debt research firm CreditSights, with offices in the US, UK, and Singapore, said. “CK Hutchison has a track record of recycling assets, and this is not the first time that Li and the conglomerate have faced criticism in the Chinese media, which we do not view as a major hurdle for deal completion,” they said.

The sale is understandable owing to its small returns compared with its role as a lightning rod of US-China tensions. The ports in Panama accounted for merely 1 per cent of CKH’s earnings before interest, taxes, depreciation, and amortisation, according to JPMorgan.

The sales proceeds will generate US$19 billion in cash for CKH, substantially higher than Morningstar’s US$10.5 billion valuation of its port assets. CKH’s shares surged by almost a quarter in intraday trading before closing 22 per cent higher at an 18-month record of HK$47.10 in Hong Kong. Its shares fell after the Chinese criticism later in the week.

But CKH has not totally abandoned its shipping business. After the proposed sale, CKH would still own stakes in four of the world’s 10 busiest container ports: Hong Kong’s Kwai Tsing port, Shenzhen’s Yantian port,Ningbo’s Beilun terminal, and the Mingdong and Pudong terminals in Shanghai.

However, it must be mindful of the words of China’s Foreign Ministry spokesperson Lin Jian when he said that the ministry supported Hong Kong companies in doing business overseas but “opposed any abuse of coercion and pressuring in international trade and economic relations.”
Hong Kong’s Chief Executive John Lee Ka-chiu concurred, adding: “The Hong Kong SAR government urges foreign governments to provide a fair and just environment for enterprises, including enterprises from Hong Kong.”