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The following is the speech (English only) by the Acting Chief Secretary for Administration, Mr Michael Suen, in moving a resolution under section 7A of the Hong Kong Court of Final Appeal Ordinance in the Legislative Council today (June 22):

Madam President,

I move the resolution standing in my name in the Agenda. The resolution is to the effect that this Council endorses the appointment of Mr Justice Patrick Chan and Mr Justice Ribeiro as permanent judges of the Court of Final Appeal, the appointment of Mr Justice Litton and Mr Justice Ching as non-permanent Hong Kong judges of the Court of Final Appeal, and the appointment of Sir Gerard Brennan, Sir Thomas Eichelbaum and Lord Millett as non-permanent judges of the Court of Final Appeal from other common law jurisdictions.

The Panel on Administration of Justice and Legal Services of the Legislative Council discussed the legal and administrative matters relating to the appointment of judges of the Court of Final Appeal ("CFA") at its three special meetings held on 3, 13 and 17 of June. Since it is the first time that the first Legislative Council considers the appointment of CFA judges, we fully understand Members' wish to be clear about the appointment procedures, to ensure that the exercise is conducted in the proper way. Representatives from the Administration and the Secretary to the Judicial Officers Recommendation Commission attended the meetings and we believe the discussions were helpful.

Legal and Constitutional Background

As the Administration has explained to the Panel on Administration of Justice and Legal Services, in accordance with Article 88 of the Basic Law and sections 7, 8 and 9 of the Hong Kong Court of Final Appeal Ordinance, judges of the CFA shall be appointed by the Chief Executive in accordance with the recommendation of an independent commission, namely the Judicial Officers Recommendation Commission ("JORC"). Under the Judicial Officers Recommendation Commission Ordinance, the JORC is entrusted with the function to advise or make recommendations to the Chief Executive regarding the filling of vacancies in judicial offices. In the case of the appointment of judges of the Court of Final Appeal and the Chief Judge of the High Court, Article 90 of the Basic Law provides that the Chief Executive shall, in addition to following the procedures prescribed in Article 88, obtain the endorsement of the Legislative Council. Article 73(7) correspondingly confers on the Legislative Council the power and function to endorse the appointment.

The system of appointments by the Chief Executive acting in accordance with the recommendation of JORC, together with the provision for endorsement by the Legislative Council for appointment of the Chief Justice, the CFA judges and the Chief Judge of the High Court, reinforces the constitutional guarantee of the independence of the Judiciary stipulated in Article 85 of the Basic Law.

In accordance with Article 90 of the Basic Law, after all the above steps have been taken, the Chief Executive shall report the judicial appointments to the Standing Committee of the National People's Congress for the record.

Current Appointment Exercise

Having set out the legal and constitutional background, I now turn to the current appointment exercise.

The legal qualifications required of CFA judges are set out in the Hong Kong Court of Final Appeal Ordinance.

A person is eligible to be appointed as a permanent judge if he is the Chief Judge of the High Court, a Justice of Appeal or a judge of the Court of First Instance; or a barrister who has practised as a barrister or solicitor in Hong Kong for a period of at least 10 years.

As for non-permanent Hong Kong judges, a person is eligible to be appointed if he is a retired Chief Judge of the High Court; a retired Chief Justice of the Court; a retired permanent judge of the Court; a Justice or retired Justice of Appeal; or a barrister who has practised as a barrister or solicitor in Hong Kong for a period of at least 10 years, whether or not he is ordinarily resident in Hong Kong.

A person is eligible to be appointed as a non-permanent judge from another common law jurisdiction if he is a judge or retired judge of a court of unlimited jurisdiction in either civil or criminal matters in another common law jurisdiction; provided he is ordinarily resident outside Hong Kong and has never been a judge of the High Court or District Court or a permanent magistrate in Hong Kong.

In accordance with the Basic Law and the Hong Kong Court of Final Appeal Ordinance, the JORC has recommended the appointment of Mr Justice Patrick Chan and Mr Justice Ribeiro as permanent CFA judges, Mr Justice Litton and Mr Justice Ching as non-permanent Hong Kong CFA judges, and Sir Gerald Brennan, Sir Thomas Eichelbaum and Lord Millett as non-permanent CFA judges from other common law jurisdictions. These recommendations have been communicated to the Chief Executive.

The Chief Executive was satisfied that the recommendations of the seven appointments were in order. In accordance with Article 88 of the Basic Law and Sections 7, 8 and 9 of the CFA Ordinance, the Chief Executive has accepted the recommendations of the JORC on these appointments.

The Appointees

Mr Justice Patrick Chan, currently Chief Judge of the High Court, is highly respected by members of the Judiciary, the profession and the community for his utmost integrity and his distinguished judicial qualities. Mr Justice Patrick Chan's appointment will increase the bilingual capability of the Court of Final Appeal. He would also be the first locally trained law graduate to reach the Court of Final Appeal. Mr Justice Ribeiro was an outstanding legal practitioner. Since he joined the bench, he has served with great distinction in the Court of First Instance and now as a Justice of Appeal.

Pursuant to Section 7(1) of the CFA Ordinance, Mr Justice Patrick Chan and Mr Justice Ribeiro are appointed with a view to succeeding Mr Justice Litton and Mr Justice Ching.

Mr Justice Litton, who has already reached the retirement age of 65, is on an extended term of 3 years from 1999 to 2002. He is resigning as a permanent judge of the Court of Final Appeal with effect from 14 September 2000 to give priority to his family commitments overseas.

Mr Justice Ching will be reaching his retirement age of 65 in October 2000.

The rule of law and an independent Judiciary are of vital importance to the Hong Kong Special Administrative Region. The establishment of the Court of Final Appeal at the apex of the Judiciary is of particular importance. I would like to take this opportunity to pay tribute to Mr Justice Litton and Mr Justice Ching who have played a key role in the early years of the Court of Final Appeal as two of the founding judges. They have made enormous contributions to the Judiciary and to the development of Hong Kong's legal system. We are fortunate to have judges of their stature serving on the Court of Final Appeal in its early years and we are most grateful for their contribution to its work.

Upon their ceasing to hold office as permanent judges of CFA, Mr Justice Litton and Mr Justice Ching are eligible to be appointed as non-permanent Hong Kong judges. They will be invaluable additions to the list having regard to their recent judicial experience in the Court of Final Appeal and we are most grateful for their willingness to serve in their new capacities. The term of their new appointments is 3 years.

The appointment of Mr Justice Litton and Mr Justice Ching will bring the total number of non-permanent Hong Kong judges from 11 to 13.

At present, there are 6 non-permanent judges from other common law jurisdictions. The Chief Justice is of the view that a panel of only 6 non-permanent common law judges does not give sufficient flexibility for dealing with the CFA's increasing caseload, nor enable him to appoint a non-permanent common law judge to sit in each appeal as the need arises. The retired non-permanent common law judges are sometimes engaged in inquiries, arbitrations and judicial commitments in other jurisdictions. The non-permanent common law judges who are serving Law Lords of course have judicial and other commitments in the United Kingdom.

At the request of the Chief Justice, the JORC has considered the matter and recommended the appointment of Sir Gerard Brennan, immediate past Chief Justice of Australia, Sir Thomas Eichelbaum, immediate past Chief Justice of New Zealand, and Lord Millett, Lord of Appeal in Ordinary in UK, as non-permanent judges from other common law jurisdictions. All three judges have a pre-eminent reputation not only in their respective jurisdictions, but also throughout the common law world. They are invaluable additions to the overseas component of the Court of Final Appeal and will help further enhance the international standing of the Court.

These three appointments will bring the total number of non-permanent judges from other common law jurisdictions to 9. Together with the 13 non-permanent Hong Kong judges, the total number of non-permanent judges will be 22.

I urge Members to endorse the seven appointments.

Effective Dates

With Members' endorsement and the completion of technical formalities, it is intended that the appointment of Mr Justice Patrick Chan and Mr Justice Ribeiro, made under section 7(1) of the Hong Kong Court of Final Appeal Ordinance, will take effect from 1 September 2000. This is because Mr Justice Litton will take leave from early August and Mr Justice Ching will have completed his tenure of office in early October. It is also intended that the appointment of Mr Justice Litton and Mr Justice Ching as non-permanent Hong Kong judges will take effect upon their ceasing to hold office as permanent judges of the Court of Final Appeal. As for the new non-permanent judges from other common law jurisdictions, it is intended that their appointments will take effect from 28 July 2000 to coincide with the start of the extended term of other non-permanent judges.

To ensure that the effective functioning of the CFA would not be adversely affected, it is intended that the new bench should start work this September. Accordingly, the Administration seeks Members' support for this resolution today so that the constitutional process for appointment may be completed in the current legislative session.

Madam President, I recommend the resolution to Members.

End/Thursday, June 22, 2000

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