Speech by the Secretary for Justice, Miss Elsie Leung,
in moving a resolution under the
Hong Kong Court of Final Appeal Ordinance (Cap. 484)
in the Provisional Legislative Council

Wednesday, July 23, 1997


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 :

Sir Denys Tudor Emil Roberts

Sir Alan Armstrong Huggins

Mr. Art Michael McMullin

Sir Derek Cons

Mr. William James Silke

Mr. Kutlu Tekin Fuad

Mr. Philip Gerard Clough

Mr. Neil Macdougall

The Honourable Mr. Justice Power

The Honourable Mr. Justice Nazareth

The Honourable Mr. Justice Mortimer

as non-permanent Hong Kong judges of the Hong Kong Court of Final Appeal; and

The Honourable Sir Anthony Mason

The Right Honourable the Lord Cooke of Thorndon

The Right Honourable Sir Edward Somers

The Honourable Sir Daryl Dawson

as judges of the Court of Final Appeal from other common law jurisdictions.

The Hong Kong Court of Final Appeal Ordinance provides for a list of non-permanent Hong Kong judges and a list of judges from other common law jurisdictions. The total maximum number of judges from both lists is 30. The term of appointment of such judges is 3 years. When hearing appeals, the Court will have five judges consisting of the Chief Justice, three permanent judges and one non-permanent Hong Kong judge or one judge from another common law jurisdiction selected by the Chief Justice and invited by the Court. Furthermore, where a sufficient number of permanent judges are not available for any cause to hear an appeal, the Chief Justice shall nominate a non-permanent Hong Kong judge to sit in place of a permanent judge.

In accordance with the Basic Law, the CFA Ordinance provides that the judges of the Court of Final Appeal, including the non-permanent Hong Kong judges and judges from other common law jurisdictions, shall be appointed by the Chief Executive acting in accordance with the recommendation of an independent commission, namely the Judicial Officers Recommendation Commission. In the case of the appointment or removal of judges of the Court of Final Appeal, the Chief Executive is further obligated to obtain the endorsement of the Legislative Council.

On 1 July 1997, Members endorsed the appointment of the Chief Justice and the three permanent judges. Since then, the Judicial Officers Recommendation Commission has made recommendations in respect of the appointment of the non-permanent judges of the Court of Final Appeal. The Chief Executive has now received and accepted the Commission's recommendation on these appointments and today I seek Members' endorsement of such appointments as required by the Basic Law and the Hong Kong Court of Final Appeal Ordinance.

Non Permanent Hong Kong Judges

Section 12 of the Ordinance sets out the qualifications required of the judges of the Court of Final Appeal. A person is eligible for appointment as a non-permanent Hong Kong judge if he is a retired Chief Justice or permanent judge of the CFA, a retired Chief Judge of the High Court (or a retired Chief Justice of the previous Supreme Court), a serving or retired Justice of Appeal, or a barrister who has practiced as a barrister or solicitor in Hong Kong for at least 10 years. The Ordinance specifically prohibits any private practitioner appointed as a permanent or non-permanent judge of the CFA from returning to private practice as a barrister or solicitor in Hong Kong.

After careful consideration, the Commission has unanimously recommended 11 persons for appointment as non-permanent Hong Kong judges. In so doing, the JORC has taken account of the following factors:

(a) the candidate's judicial or professional track record while serving in Hong Kong or in other jurisdictions;

(b) whether the candidate is still judicially active;

(c) whether the candidate is holding any public office in the other branches of the government;

(d) whether the candidate is in politics or had adopted such a public political position as to render him or her inappropriate for appointment.

Of the 11 recommended candidates, Sir Denys Roberts is a retired Chief Justice of Hong Kong. Seven, namely Sir Alan Huggins, Mr. Art McMullin, Sir Derek Cons, Mr. William Silke, Mr. Kutlu Fuad, Mr. Philip Clough and Mr. Neil Macdougall, are retired Judges of the Court of Appeal. The other three, namely Mr. Justice Power, Mr. Justice Nazareth and Mr. Justice Mortimer, are serving Vice-Presidents of the Court of Appeal. Their curricular vitae are laid before you. As regards the retired judges, the Commission has noted in particular that Sir Denys Roberts, Sir Alan Huggins, Mr. Art McMullin, Sir Derek Cons and Mr. Kutlu Fuad are serving on the Court of Appeal in Brunei and some in Bermuda as well.

Judges from Other Common Law Jurisdictions

A person is eligible for appointment as a judge from another common law jurisdiction if he is a serving or retired judge of a court of unlimited jurisdiction in either civil or criminal matters in another common law jurisdiction, is ordinarily resident outside Hong Kong, and has never been a judge of the High Court, a District Judge or a permanent magistrate in Hong Kong.

While the appointment exercise in respect of the non-permanent Hong Kong judges is for the moment complete, the present recommendations on the appointment of the judges of other common law jurisdiction represent only part of that particular exercise.

At this initial stage of the exercise, the Commission concentrated on retired judges only. As far as serving judges in other common law jurisdictions are concerned, the Chief Justice will have to discuss with overseas judiciaries to try to secure their agreement for their serving judges to sit on Hong Kong's Court of Final Appeal. This process will take time. To ensure that the Court of Final Appeal will be in a position to function as soon as possible, the Judicial Officers Recommendation Commission has accepted the Chief Justice's recommendation that the list of judges from other common law jurisdictions should start with retired overseas judges first.

The Commission has so far focused on retired judges from England, Australia and New Zealand, being the three countries which have close affinity with Hong Kong in terms of their laws, legal tradition and procedure, including appellate procedures.

The Commission considered a number of names from these three jurisdictions and recommended that 4 be appointed as judges from other common law jurisdictions. They are The Honourable Sir Anthony Mason, The Rt. Hon. the Lord Cooke of Thorndon, The Rt. Hon Sir Edward Somers and The Hon Sir Daryl Dawson.

Sir Anthony Mason was Chief Justice of the High Court of Australia from 1987 to 1995. Lord Cooke was President of the Court of Appeal in New Zealand and now sits in the House of Lords in England. Sir Edward Somers was a judge of the New Zealand Court of Appeal. Sir Daryl Dawson is a judge of the High Court of Australia. His appointment will only take effect on 1 September 1997, after he has retired from the Australian bench. Their curricular vitae are laid before you.

No retired judges from England are recommended on this occasion because the two retired judges sounded out were unable to accept appointment due to their personal plans in retirement.

In considering candidates for the list of judges from other common law jurisdictions, the Judicial Officers Recommendation Commission took account of the candidate's stature and achievements in the common law world, whether he served on a court which has comparable status as the Court of Final Appeal, and the affinity between Hong Kong and the jurisdiction from which he comes. It is the intention of both the Chief Justice and the Commission that this list will be expanded in due time.

The four persons recommended had been prominent judges in their respective jurisdictions, each with a distinguished record of service. Their appointment will bring to the Hong Kong Court of Final Appeal a wealth of invaluable experience. Furthermore they will provide an important conduit between the Hong Kong Special Administrative Region and other common law jurisdictions.

Concluding Remarks

Members' endorsement of these 15 appointments will place the Court of Final Appeal in a fully functional position, ready to hear appeals. I believe that these appointments will be warmly received by the legal profession and will set a tone to the Commission's deliberations on other appointments to be made in the future. With these comments, I seek Members' endorsement of the appointment of

Sir Denys Tudor Emil Roberts

Sir Alan Armstrong Huggins

Mr. Art Michael McMullin

Sir Derek Cons

Mr. William James Silke

Mr. Kutlu Tekin Fuad

Mr. Philip Gerard Clough

Mr. Neil Macdougall

The Honourable Mr. Justice Power

The Honourable Mr. Justice Nazareth

The Honourable Mr. Justice Mortimer

as non-permanent Hong Kong judges of the Court of Final Appeal; and

The Honourable Sir Anthony Mason

The Rt. Hon. the Lord Cooke of Thorndon

The Rt. Hon Sir Edward Somers

The Honourable Sir Daryl Dawson

as judges of the Court of Final Appeal from other common law jurisdictions. Subject to Members' endorsement and the completion of other formalities, these appointments (other than that of Sir Daryl Dawson) will take effect from the Monday following the date of the Council's endorsement. Sir Daryl Dawson can only accept appointment after his retirement from the High Court of Australia and his appointment will only take effect on 1 September 1997.

I recommend the Motion to Members.