‘No question’ over impartiality of hand-picked national security judges, says Hong Kong chief justice

Following is the full text of the speech delivered by the Chief Justice of the Court of Final Appeal, Mr Andrew Cheung Kui-nung, at the Ceremonial Opening of the Legal Year 2022 today (January 24):

Secretary for Justice, Chairman of the Bar, President of the Law Society, fellow judges, distinguished guests, ladies and gentlemen,

     On behalf of the Hong Kong Judiciary, I extend a warm welcome to all of you to the Opening of the Legal Year. This important occasion focuses public attention on the administration of justice and the rule of law. It reminds our community of the essential role played by an independent judiciary in the continued success of Hong Kong under the “one country, two systems” arrangement. It also provides an occasion for us to address the public on the challenges we face.

     Hong Kong is a society governed by the rule of law. Article 25 of the Basic Law provides that all Hong Kong residents shall be equal before the law, and Article 22 of the Hong Kong Bill of Rights further states that all persons are entitled without any discrimination to the equal protection of the law. Government and other public authorities are accountable under the law, just as all private individuals and organisations. As a mature common law jurisdiction, Hong Kong has an established public law regime which ensures that the Government and other public bodies operate within the law and that public powers are exercised in accordance with the requirements of the law.

     The rule of law ensures and promotes fairness, equality and justice, which are the core values in the administration of justice under our system of law. Many regard the protection of fundamental human rights as a key component of the rule of law. In Hong Kong, fundamental rights are constitutionally guaranteed in Chapter III of the Basic Law, as well as the Hong Kong Bill of Rights, which is constitutionally entrenched under Article 39 of the Basic Law. Our law reports are full of cases where these fundamental rights are generously interpreted and restrictions narrowly confined by reference to their aim, relevance, necessity and proportionality.

     An essential lynchpin of the rule of law in Hong Kong is an independent judiciary. Judicial independence in Hong Kong is constitutionally guaranteed by the Basic Law. Articles 2, 19 and 85 of the Basic Law specifically provide that the judicial power, including that of final adjudication, enjoyed by the Hong Kong Special Administrative Region under the Basic Law is exercised by the Judiciary independently, free from any interference. The Basic Law and the relevant legislation also provide clear and strict provisions regarding the appointment and removal of judges. Article 88 of the Basic Law provides that judges and judicial officers (collectively “judges”) are appointed by the Chief Executive on the recommendation of the independent Judicial Officers Recommendation Commission. The Commission is chaired by the Chief Justice, and also comprises the Secretary for Justice as an ex-officio member and seven members appointed by the Chief Executive. Of these seven members, two are judges, one is a barrister appointed after consultation with the Bar Council, another one is a solicitor appointed after consultation with the Council of the Law Society, and the remaining three are persons who are not connected with the practice of law. Appointment of judges, whether local or from overseas, must be based on and only based on judicial and professional qualities, as stipulated under Article 92.

     For those who are interested in finding out how the constitutional guarantee on judicial independence in Hong Kong is practised on the ground, our court hearings are open to the public, our judicial decisions are publicly announced, and the courts’ reasons are published for everyone to study.

     For cases concerning offences endangering national security, only judges designated by the Chief Executive under Article 44 of the National Security Law can handle them, and this has given rise to comments in some quarters in relation to the impartiality of the designated judges. It is of course not my role as Head of the Judiciary to make extra-judicial comments on the law or its operation. However, it is conducive to public confidence in our judicial system to assure the community that, from the Judiciary’s perspective, there is no question of the impartiality of our courts being affected by this special arrangement under Article 44. In this regard, I would like to highlight several important facts.

     First of all, judges are designated by the Chief Executive who may consult the Chief Justice before making a designation. The Chief Justice also makes suggestions to the Chief Executive on possible designations where appropriate.

     In this connection, it should be noted that judges hearing national security cases are designated from serving judges only. By definition, they are persons who have satisfied the high requirement of judicial and professional qualities under Article 92 of the Basic Law to be appointed as judges in the first place.

     Moreover, designated judges, like all other judges, are subject to the Judicial Oath which all judges are required to take under Article 104 of the Basic Law. Under the Judicial Oath, a judge swears to serve Hong Kong conscientiously, dutifully, in full accordance with the law and with integrity, and to safeguard the law and administer justice without fear or favour, self‑interest or deceit. In particular, this means that no political or other personal considerations of the judge can be entertained in the judicial decision‑making process. The Judicial Oath is binding on a designated judge when he or she sits on a national security case, just as it is binding on them when hearing other types of cases.

     It is also important to point out that whilst the general power to designate judges to hear national security cases vests in the Chief Executive, the actual assignment of designated judges to hear individual cases remains the responsibility of the Court Leaders, just like all other types of cases.

     Finally, where three designated Court of First Instance judges sit without a jury to hear a national security case that falls within Article 46 of the National Security Law, their verdict is given in a fully reasoned judgment which is published online for public scrutiny. Moreover, the same procedural safeguards are in place to ensure a fair trial as in a jury trial, and the same appeal procedure is available to a defendant in case of a conviction.

     In the past two years, the subject of judicial independence in Hong Kong has attracted a fair amount of attention and comments, not only locally but overseas also. Healthy attention and constructive comments on the Judiciary and its work are always to be welcomed as they help to improve our work and remind us of the utmost importance of judicial independence to the maintenance of the rule of law and the continued success of Hong Kong under the “one country, two systems” arrangement. However, when such attention and comments are not based on objective facts and rational arguments, but rather on surmises, political stances or geopolitical considerations, they are of no value to the advancement of the rule of law in Hong Kong or the upholding of judicial independence. Criticisms of court decisions which are made without first ascertaining the facts in a case or reading and understanding the reasons for the court’s decision are as meaningless as they are hollow. So is any unsubstantiated doubt over the courts’ independence. Judicial independence in Hong Kong exists as a fact. And we are here today to bear witness to this fact.

     In recent months, attempts to intimidate or otherwise exert improper pressure on judges involved in trying cases arising from the events in 2019 or national security cases are on the rise. These attempts are a direct affront to the rule of law and judicial independence. They certainly deserve condemnation and indeed many have spoken out against them in strong terms.

     What should also be stressed is that these attempts to threaten and pressurise our judges are completely futile and pointless. The work of our courts remains wholly unaffected by them and our judges continue to dispense justice as it ought to be. Criminal liability will continue to be determined in accordance with the applicable law and the strength of the evidence presented before the court. Those who are proven guilty will be convicted and those not so proven will be acquitted. Convicted defendants will be given punishments that their crimes deserve, no more and no less. This is our job as judges, and we are determined to discharge our duty without regard to any threats that are made to deter us from it.

     Without giving these distracting threats and interferences any more attention than they require, we have appropriately stepped up security measures in our court buildings so as to ensure the personal safety of all our judges and court users, as well as the due administration of justice and the solemnity of judicial proceedings.

     Turning to a different but related topic, in my address given at the Opening of the Legal Year last year, I mentioned that we would review our existing mechanism on handling complaints against judicial conduct. The review has since been completed, and the enhanced mechanism with a two‑tier structure was set up and came into effect on August 16 last year. In short, pursuable complaints against judicial conduct which are serious or complex, or have aroused wide public attention will now be dealt with under the two‑tier system. A panel of judges comprising more than one High Court judge will first investigate these complaints. The second tier Advisory Committee, comprising senior members of the Judiciary and members from the community with a good and balanced mix of expertise and experience in professional and public services, will then review and advise on these cases before the Chief Justice makes a final decision on each complaint. All results are made public and annual reports are published. The first meeting of the Advisory Committee was successfully held in September last year and the next one will be held in just over a month’s time. Premised on the principle that there should be no undermining of judicial independence, this revised mechanism of handling complaints against judicial conduct will further enhance the transparency and accountability of our system, as well as public confidence in the Judiciary.

     Allied to the enhancement of the complaints handling mechanism is the updating of the Guide to Judicial Conduct which was first published in 2004. Judges hold positions of trust and responsibility with regard to the cases and other judicial work that they handle. We owe it as much to ourselves as to the public to observe at all times the highest standards of judicial conduct. At the time the Guide to Judicial Conduct was first published, the topic of judicial ethics, or judicial conduct, was still in its early stages. Indeed the Guide was a pioneer work. In the years since the Guide was first published, the topic of judicial conduct has seen much growth and development. Given the increasingly complex conditions in which judging takes place, and the increased public interest in the performance of judicial duties, the time has come to review the Guide. Accordingly, in March last year, I set up a Working Party, chaired by the Chief Judge of the High Court, to conduct a review of the Guide. In reviewing the provisions of the Guide, the Working Party consulted the Bangalore Principles of Judicial Conduct developed by the United Nations Office on Drugs and Crime, as well as overseas material from major common law jurisdictions. I have since accepted the report of the Working Party and the new edition of the Guide is now being finalised. I believe that when published, this new edition will continue to assist our judges to maintain the highest standards of judicial conduct, and give the public a better understanding of our judicial work and the uncompromised standards we set for ourselves.

     Turning lastly to the question of judicial efficiency, I would like to assure the community that Hong Kong is blessed with dedicated judges at all levels of court who are committed day in, day out to the practical administration of the law, regardless of praise or criticism. The workload is always heavy, and manpower tight. All this must be firmly borne in mind in any discussion on further improving judicial efficiency and output. In my address at the Opening of the Legal Year last year, I mentioned the importance of judicial recruitment. I am happy to say that in the latest recruitment exercises for different levels of court, the responses have been encouraging. Three appointments to the Court of First Instance of the High Court were made in November last year and earlier this month. In the coming months, there will be further announcements made on judicial appointments to different levels of court. Moreover, deputy appointments from the legal profession will continue to be made to provide temporary manpower relief. However, the quality of justice is not something we can compromise on in the pursuit of efficiency, and only those who are of the appropriate judicial and legal qualities may be appointed to deputise in our courts.

     Apart from increasing manpower, various measures have been and will be adopted to improve judicial efficiency. One important measure is to better manage the inevitable tension between efficient listing of cases for hearing and allocation of adequate time for judges to read into cases and judgment writing. In some cases, this would mean the imposition of more stringent case management directions, as to which I would ask the legal profession for its support and co‑operation. It would also mean longer waits for trials in some cases, or longer waits for judgments in others. Striking the right balance is never an easy task. We are fully aware of the public’s expectations and are doing all we can to meet them.

     Another measure, which was first experimented with last year in cases and appeals falling within the Constitutional and Administrative Law List in the High Court, is the giving of a judgment handing down date at the conclusion of a hearing when judgment is reserved. Once given, the date will not be subsequently changed save for exceptional circumstances. This measure will in the course of this year be generally extended to all civil cases in the High Court and the District Court. It will align the practice, in this regard, between civil courts and criminal courts. The measure will also be extended to all criminal appeals and reviews in the High Court. New Practice Directions will be issued to give guidance on the timeframes within which judgments in different types of hearings are normally expected to be handed down. Judgment handing down dates will be given at the conclusion of hearings in accordance with these timeframes. For judgments reserved before the coming into effect of this new arrangement, administrative measures are in place to ensure that they are handed down within a reasonable time, and to this end extra efforts are being made.

     Thirdly, we will continue to expand our judicial assistant scheme to provide support for more judges. In the High Court, we now have both full‑time and part‑time judicial assistants providing much needed assistance to some of our judges. Their service is of particular importance given the huge number of non‑refoulement cases that are still pending before the Court of First Instance and the Court of Appeal. Of course, the judicial assistants also provide legal and research assistance in other types of cases and work.

     Fourthly, as has been widely reported, we have renovated the mega court in the West Kowloon Law Courts Building and are in the process of constructing new court rooms in the Wanchai Law Courts Building to cater for the hearing of criminal cases which involve a large number of parties and lawyers. There are still a significant number of criminal cases pending before the District Court arising from the events in 2019. The availability of court rooms with a higher seating capacity and the more flexible use of existing court rooms will go some way towards expediting the hearing of these cases. The bottom line remains, however, that there can be no compromise on the fairness of the legal process.

     Lastly, the Judiciary has been developing by phases an integrated court case management system across all levels of court for handling court‑related documents and payments through an electronic mode. The entire project is expected to be completed in around three years.

     We will implement e‑filing in the District Court by phases from March this year starting with civil proceedings. As for the Summons Courts at the Magistrates’ Courts, the rollout is tentatively planned for December this year. For the other courts, detailed planning has started. The Judiciary aims to roll out the external functions of the integrated court case management system for the other courts incrementally starting from 2024.

     Besides, the Judiciary is working on the necessary legislative amendments to fully enable both the civil and criminal courts to conduct remote hearings as they see fit, having regard to all relevant circumstances, including in particular the dual requirements of open justice and fairness. Taking into account the need to further consult stakeholders and finalise the proposed legislative amendments, we plan to introduce the Bill into the Legislative Council later this year.

     In conclusion, I would reiterate that the Hong Kong Judiciary is fully committed to maintaining an independent, impartial and efficient judicial system which upholds the rule of law and safeguards the rights and freedoms of everyone in Hong Kong in accordance with law.

     It remains for me to wish you and your families good health and every happiness in the new year. Thank you.

[Chief Justice, Secretary for Justice, President of the Law Society, Judges, Distinguished Guests, Members of the Legal Profession, Ladies and Gentlemen]

1. The Hong Kong Bar Association has a long and honourable history and many eminent members have previously occupied the position of chairman. I have the honour of addressing you today as the new chairman having been elected together with a number of new council members at our AGM last week. My new colleagues and I look forward to the opportunity of working with those members whose tenure carried over this election.

2. The Hong Kong Bar Association came into being with clear aims, to maintain the honour and independence of the Bar, to improve administration of justice, and to establish rules of conduct and discipline among barristers. The aims are set out in the general Rules and Regulations of the Bar and have become the established high standards to which we are held.

3. Today I am grateful for this opportunity to share with you our vision for the Bar as Hong Kong moves forward.

The role of the Bar in upholding the rule of law

4. A strong and independent bar exists to serve the public and to further the administration of justice. As specialist advocates, we help litigants uphold their legal rights and play a part in the efficient and effective operation of our courts. But our duties do not stop in the courtroom. It has been repeatedly emphasized by my predecessors that the Bar has a societal role in promoting the rule of law and explaining it to the community.

5. The rule of law is the bedrock of our democratic society. A lot has been said over the years on its two key facets: the independence of the judiciary, and the fundamental requirement of equality and fairness before the law. The maintenance of the rule of law, and the authority of the Court, are matters of special importance in our society and essential parts in the Hong Kong’s success story.

6. What we stress today is that whilst the law plays the role of keeping politics within certain limits that are dictated by the ideas of justice and social order, there is no place for politics in the administration of justice. 

7. Over the years there have been a significant number of cases before the Courts with important political, economic and social repercussions. However, it is important for the community to understand that judges do not function in the political arena. They decide cases strictly in accordance with the law based on facts and evidence presented, without being influenced by any extraneous considerations. While the Courts may, in appropriate cases, carefully consider the views of the legislative and executive branches, it is the court that has the ultimate responsibility of determining cases by reference to legal principles based on arguments presented. 

8. Even in the United States where the appointment of Supreme Court justices has been described by its Congress as”an event of major significance in American politics”, senior judges have repeatedly warned against the politicisation of the US Supreme Court. In a recent speech at the Scalia Lecture in Harvard Law School, Supreme Court Justice Breyer has this to say: 

“If the public sees judges as ‘politicians in robes’, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the Court’s power, including its power to act as a”check on the other branches.”

9. Politics also has no role to play in the affairs of the Bar. If barristers are seen as”politicians in wigs”, public confidence in the Bar and the role we play in the administration of justice will diminish. One is not suggesting that members of the Bar cannot get involved in politics, but the role of the association itself is a different story.

10. As part of the interface between the judiciary and members of the public,  the Bar has an important role to play in speaking out on issues concerning the rule of law and the administration of justice. The line between law and politics can in some instances be a fine one, but as exemplified by our judges who are accustomed to dealing with multidimensional issues, the Bar will continue to speak out on rule of law issues without political considerations.

Unique role of the Bar

11. Next I would speak about the unique role of the Bar in upholding the rule of law and how the existence of an independent self – regulated Bar is in the best position to discharge that role. 

12. Like the Hippocratic Oath which binds the doctor to a patient, barristers must take up any case which comes their way, irrespective of the public perception of the client or the cause advanced. 

13. The growth of the internet and social media platforms in many places, including Hong Kong, has been said to result in an increased polarization of society. 

14. In the legal context, it must be borne in mind that in a society governed by the rule of law, everyone is entitled to a fair trial and this entails unhindered access to the Courts and to legal advice and representation. Trial purely by public opinion – including through the internet and social media platforms – which is not only instantaneous but without any natural justice protection, has no place in a democratic society. 

15. Regrettably in Hong Kong and elsewhere there has been a trend whereby lawyers are subjected to an increasing amount of pressure by segments of the public to prevail upon the lawyers not to act for certain clients or in certain cases. This trend must not be allowed to grow. It is for the Courts to determine the legal rights and wrongs of entities and individuals. It would be a sad day indeed where individuals were unable to obtain legal advice and representation because lawyers were pressured whether morally or economically not take up certain cases deemed to be sensitive. 

16. I would venture to remind us all that having legal representation is a fundamental right irrespective of who the person seeking that representation is, no matter how “good” or “bad” that person appears to be. The purpose of having lawyers in a Court is to assist the Court in reaching a reasonable decision on the facts and based on the law. In the same vein, it is sad to see lawyers being castigated or depicted as if they and their client were the same. I would urge members of the public to be mindful of the role actually played by lawyers. Failure to recognize that may result in an insidious and dangerous encroachment of the fundamental right I have referred to.

17. The Bar’s Code of Conduct requires barristers to be uncompromisingly independent, and to act irrespective of our personal views. It is the high level of independence and the degree of freedom from conflict of interests that place the Bar in a unique role in the legal profession in Hong Kong.

18. Specifically, paragraph 6.1 of our Code of Conduct preserved the “Cab-Rank Rule”, which, for those unfamiliar, provides that if the brief or instruction is within the barrister’s capacity, skill and experience and that he is available and properly remunerated, the barrister is obliged to act irrespective of the nature of the case, the party on whose behalf he is instructed and the belief or opinion which he may have formed as to the character, reputation, cause, conduct, guilt or innocence of that person. 

19. This ensures that everyone in Hong Kong can be assured that he or she will have access to fearless legal representation and advice. 

20. In 2013 the Bar Standards Board in England commissioned an independent report to evaluate whether the”Cab – Rank Rule”was still relevant. The conclusions were clear: removing the rule would threaten access to justice ; the rule protects the interests of litigants by ensuring the availability of a wide pool of counsel from which real and meaningful choices of suitable counsel can be made. 21. Barristers do not choose who they prosecute nor defend, whether they are acting for a consumer or a bank, whether they are acting for the Government or individuals. They act to the best of their abilities and always remembering their higher duty owed to the Court so that it could discharge its constitutional duties in administering justice.

22. An independent Bar of course does not mean a Bar which is purely self interested, nor one which is aloof. Internally, in the coming year we will look into a wide range of measures to further enhance training for our members. Externally, the Bar shall continue to play its role in providing its input on law reform, legal education and general awareness of the rule of law principles. The Bar is always to be guided by the public interest.

23. This year marks the 25th anniversary of the establishment of the HKSAR. We are half-way through the 50 years of unchanged way of life provided for in Article 5 of the Basic Law. It is, therefore, natural for aspiring law students to ask whether there is a future for them if they are to enter into the legal profession as they will be leaders of the profession going forward and beyond 2047.

24. The same question was asked of myself and the two new Vice-Chairmen of the Bar when the three of us commenced our legal studies shortly before the handover. In the eyes of our critics, there were considerable doubts over our future back then. The 3 of us together with other young lawyers who joined the legal profession then put in a vote of confidence for Hong Kong. If I had decided otherwise I would not have the privilege of addressing you today.

25. We are living in challenging times. The Rule of Law here and elsewhere faces constant challenges, and Hong Kong is not alone in this regard. Law students and our young lawyers will have a significant role to play in the years to come. I urge you to continue to believe in Hong Kong, just as we did 25 years ago and continue to do. Hong Kong has weathered many storms over the years and has always emerged stronger, with the rule of law safeguarded we can be sure it will continue to thrive. 

26. It remains for me to wish you a happy new year, good health and good fortune.