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LCQ17: Retirement age of judges and judicial officers
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     Following is a question by the Hon Abraham Shek Lai-him and a written reply by the Acting Chief Secretary for Administration, Mr Michael Suen, in the Legislative Council today (June 13):

Question:

     It has been reported that half of the 38 judges working in the Court of Final Appeal (CFA), Court of Appeal and Court of First Instance (CFI) of the High Court will reach the statutory retirement age of 65 in the next five years.  Although an extra discretionary term of three years may be allowed under "exceptional circumstances" relating to operation needs (after which judges of CFA must retire), it is not known how the exceptional circumstances are defined when it has been reported that a permanent judge of CFA will be replaced by a judge nine months older than him when he retires on turning 65 in October 2012.  In addition, it has been reported that about a quarter of the judge and judicial officer (JJO) posts have been lying vacant for at least nine months, which has aroused concerns that the quality of judiciary work will be affected.  In this connection, will the Government inform this Council if it knows:

(a) whether the Judiciary has considered any new measures (including increasing the salaries for JJOs) to expedite the recruitment process; if yes, the details; if not, the reasons for that;

(b) the criteria for extending the term of office for JJOs who approach the retirement age of 65; whether the decision to replace the aforesaid permanent judge of CFA by a judge nine months older than him complies with such criteria; if yes, the details; if not, the details of other affirmative reasons for the decision; whether there are any similar precedent examples in the past three years; if yes, of the details;

(c) whether the waiting time of the hearing of the cases in the Civil Fixture List of CFI of the High Court had failed to meet the target of 180 days in the past three years; if yes, the details and the justifications for keeping the current target at 180 days in 2012-13; and

(d) given that it has been reported that the retirement age of the judges of the British Supreme Court and the Federal Courts in Canada and Australia is set at 70, whether the Judiciary will review and set the retirement age of JJOs on par with that of such common law jurisdictions; if yes, the details; if not, the reasons for that?

Reply:

President,

     The Administration has consulted the Judiciary on the question and has received the following information -

(a) The Judiciary has been taking prompt actions in filling judicial vacancies at different levels of court.  In accordance with Article 92 of the Basic Law, Judges are chosen on the basis of their judicial and professional qualities.  In the past 18 months, nine judicial vacancies have been substantively filled (namely, the offices of the Chief Judge of the High Court, three Justices of Appeal of the Court of Appeal of the High Court and five Special Magistrates).  In addition, when the current constitutional process for the appointment of a Permanent Judge (PJ) of the Court of Final Appeal (CFA) is completed, the anticipated PJ vacancy will be filled when it arises in October 2012.  

     Furthermore, the recruitment exercises for Judges of the Court of First Instance of the High Court (CFI Judges), District Judges and Permanent Magistrates are in good progress and are expected to be completed in 2012.  The Chief Justice is cautiously optimistic about the outcomes of these on-going recruitment exercises and hopes that, upon their completion, most of the fillable vacancies would be substantively filled by suitable candidates.  

     Under the existing mechanism for the determination of judicial remuneration, judicial remuneration is determined by the Executive after considering recommendations by the Judicial Committee.  This institutional framework and mechanism was approved by the Chief Executive in Council in May 2008.  Judicial remuneration is subject to annual reviews.  It was last increased on April 1, 2011.  The review of judicial remuneration for 2012-13 is now in progress.

     In the Judiciary, the Chief Justice has appointed a committee, chaired by a PJ of the CFA and comprising Judges and Judicial Officers from different levels of court, to advise him on matters relating to judicial remuneration.  These matters are kept under constant review.

(b) The policy of the Judicial Officers Recommendation Commission (JORC) is that extension of the term of judicial office beyond the statutory normal retirement age should not be automatic.  It should be regarded as exceptional and would not normally be approved unless -

(i) the Judiciary has operational needs, including the need for continuity; and

(ii) the extension would not hinder the advancement of junior officers who are suitable for elevation (Note).
 
     The above policy was made in September 1998 and has been applied consistently in all cases since then.  The Chief Justice applies the JORC policy above in considering whether the term of office of a PJ of the CFA should be extended or not.

     On the specific case of the retiring PJ as referred to in the question, the PJ concerned will reach the statutory normal retiring age of 65 years in October 2012.  By then, he would have served for over 15 years as a PJ.  The Chief Justice is of the view that no exceptional reasons exist to justify the extension of the term of office of the PJ concerned when applying the factors referred to in sub-paragraphs (i) and (ii) above and that there are judges in the High Court suitable for elevation to the CFA.  

     The candidate proposed to fill the anticipated PJ vacancy is currently a serving Justice of Appeal of the Court of Appeal of the High Court.  His term of office as a Justice of Appeal has been extended beyond the normal retiring age of 65 years for three years until January 6, 2015.  Section 11A(3) of the High Court Ordinance (Cap. 4) provides that in such a case (i.e. where the term of office of a judge of the High Court is extended), the judge shall accordingly be regarded as having attained the retiring age at the expiration of the period of extension.  Therefore, the judge concerned is regarded as no different from any other serving judge of the High Court who has not yet reached the (normal) retiring age for the purpose of his eligibility for the PJ vacancy.  His advancement to the CFA would be fully justified and deserved.

     JORC noted that all High Court judges (including the judge proposed to fill the anticipated PJ vacancy) are eligible candidates for consideration.  JORC then agreed that three judges of the High Court should be placed on the shortlist.  Having regard to Article 92 of the Basic Law that judges shall be chosen on the basis of their judicial and professional qualities, the JORC then gave detailed consideration to the suitability of the three Judges, having regard to the qualities required of a PJ and all relevant factors including operational requirements.  The judge proposed to fill the PJ vacancy was considered to be the most suitable candidate.

     Section 14(2)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides for a person who has attained the age of 65 years to be appointed as a PJ for a term of three years.  The JORC resolved to recommend to the Chief Executive the appointment of the proposed candidate for a term of three years from October 25, 2012 to October 24, 2015.

     As regards precedent cases for extension of term of office, at the CFA level, since its establishment in 1997, there has only been one case of extension of the term of office of a CFA Judge in October 1998.  At that time, the CFA was a young court.  The CJ made the recommendation because he considered that in the interest of the Judiciary and, in particular, for the continuity and development of the young CFA, the term of office of the CFA Judge concerned should be extended.

(c) The average waiting time for the Civil Fixture List of the Court of First Instance of the High Court was within the target of 180 days in 2009 (179 days) but exceeded the target in 2010 (215 days) and in 2011 (231 days).  This was due to more complex, lengthy and refixed cases.  It was also due to the temporary constraints in the deployment of judicial manpower in the High Court caused by the temporary shortfall of substantive judicial manpower as a result of the retirement of Judges and elevation of Judges to higher positions.  As mentioned in (a) above, the recruitment exercise for CFI Judges is well underway.  To address the situation in the interim, the Judiciary has been making every effort to engage deputy judges who are considered suitable for appointment as Deputy High Court Judges from both within and outside the Judiciary to help reduce the waiting times.

(d) Notwithstanding the more senior retirement age for judges in some overseas jurisdictions, the Chief Justice is of the view that the existing arrangement of the age of 65 as the normal retirement age for judges in Hong Kong has worked well and remains appropriate for the time being, having regard to the circumstances in Hong Kong.

Note: After a review in September 2001, the JORC resolved to add that the extension would not hinder the appointment of members of the legal profession who are well suited and available for appointment.

Ends/Wednesday, June 13, 2012
Issued at HKT 13:31

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