‘Arguably cosmetic’: Top Australian judge Robert French quits Hong Kong court

Former High Court of Australia chief justice Robert French has quit Hong Kong’s top court, becoming the latest in a string of foreign judges to resign after Beijing’s national security crackdown.

French had been one of four Australian judges to continue serving as non-permanent judges on the Hong Kong Court of Final Appeal in the face of heavy criticism from supporters of the city’s pro-democracy movement who argued they were legitimising a broken legal system.

In a statement on Friday, French said he maintained respect for the Hong Kong judiciary and the role of overseas judges, and endorsed their “integrity and independence”.

Former High Court of Australia judge Robert French has quit his role as an overseas judge on Hong Kong’s top court.Credit: Alex Ellinghausen

“I reject the proposition that they are somehow complicit in the application by the executive of national security laws or somehow confer on them a spurious legitimacy,” he said.

“I will not be making any statement about those laws and associated practices. There will no doubt be future cases in which their interpretation and application will come before the court.”

French, who joined the Court of Final Appeal (CFA) in 2017, still had one year remaining on his term, which was due to expire in May 2026.

He said he believed the role of foreign judges had “become increasingly anachronistic and arguably cosmetic” and suggested there may be a future role for them as part of an international commercial court in Hong Kong.

“Hong Kong is the only part of China that can appoint foreign judges to its courts,” he said.

As recently as November, French defended his decision to remain on the court, telling this masthead that he continued to “independently assess the risks and benefits for the rule of law in Hong Kong of my membership of the CFA”.

The sentencing of Australian citizen Gordon Ng by a Hong Kong court last year intensified scrutiny on the remaining overseas judges who sit at the apex of the city’s legal system. Ng was among 45 democracy activists jailed under Beijing’s national security law for conspiring to commit subversion.

It prompted an intervention from Foreign Minister Penny Wong, who urged the Australian judges to reconsider their positions on the court.

The three remaining Australian judges are former High Court judges Patrick Keane and William Gummow, and former Federal Court chief justice James Allsop. UK judges Leonard Hoffmann and David Neuberger also continue to serve on the court.

The ranks of foreign judges on the Court of Final Appeal have been whittled down through resignations and retirements from 15 since Beijing’s national security crackdown in 2020.

The role of overseas judges in Hong Kong has regularly been likened to “canaries in the coal mine”, with their presence serving as a litmus test of the court’s independence.

In a statement, the Hong Kong government expressed regret at French’s resignation, thanked him for his contribution and defended the independence of the judicial system.

“The presence or absence of individual judges will not undermine the integrity of the system, nor impair the [Hong Kong] government’s determination in upholding the rule of law,” the statement said.

Five judges resigned from the court in 2024 – two of them, British judges Lord Jonathan Sumption and Lord Lawrence Collins – explicitly citing the political situation as the reason for their departure.

At the time, Sumption said Hong Kong was “slowly becoming a totalitarian state”, there was a “growing malaise” within the judiciary, and that “the rule of law is profoundly compromised in any area about which the government feels strongly”.

The court functions with appeals heard by five judges, comprising four permanent judges and one non-permanent judge, typically chosen from the pool of foreign judges.

The foreign judges do not live in Hong Kong but travel there for sittings on an ad hoc basis. None of the foreign judges have yet sat on national security law appeals, and it’s possible they will never be selected to do so, or could elect to make themselves unavailable for such cases.

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