Why four Australian judges have become a hot topic spoken about in hushed tones in Hong Kong

Hong Kong: As the world’s gaze focused on Hong Kong as Australian Gordon Ng was among 45 democracy activists sentenced to jail under Beijing’s national security law this month, scrutiny once again intensified on the role of overseas judges at the top of the region’s legal system.

Foreign Minister Penny Wong, in her first public comments on the issue made through a spokesperson, has urged the four Australian judges on Hong Kong’s Court of Final Appeal to consider the government’s concerns about a crackdown on political dissent by Hong Kong authorities when deciding whether to remain on the court.

The Australian judges on Hong Kong’s Court of Final Appeal have been asked to consider the government’s concerns about a crackdown on political dissent by Hong Kong authorities.Credit: Matthew Absalom-Wong

“Australia has expressed our strong objections to the Hong Kong authorities on the continuing broad application of national security legislation to arrest and pressure pro-democracy figures, opposition groups, media, trade unions and civil society – including Gordon Ng and Jimmy Lai,” a spokesperson for Wong said in a statement to this masthead.

“We would hope the former judges would consider these concerns when making their decision to serve.”

In an acknowledgement that the decision is the judges’ alone to make, the statement notes that they serve on Hong Kong’s top court in their private capacity. While it does not call on the judges to resign, it can be interpreted as suggesting they reflect on their continuing involvement.

It is the first time the federal government has waded into what has become a highly politicised debate. The ranks of foreign judges who serve as non-permanent members of Hong Kong’s Court of Final Appeal have been whittled down through resignations and retirements from 15 to six since Beijing’s national security crackdown in 2020. Those remaining have faced scrutiny about their decision and motivation for doing so.

Gordon Ng (centre) was first detained in 2021.

Four of the six remaining judges are Australian: former High Court of Australia chief justice Robert French, his former bench colleagues Patrick Keane and William Gummow, and former Federal Court chief justice James Allsop, who joined in May.

They are among the most eminent jurists to ever have served Australia’s legal system.

Keane and Allsop declined to comment in response to the statement from Wong’s office, and in relation to this piece more generally. Gummow did not respond to requests for comment.

French said he was aware of the minister’s concerns and respected her position.

“I continue to independently assess the risks and benefits for the rule of law in Hong Kong of my membership of the CFA,” he said.

Jimmy Lai being led away in handcuffs in 2020.Credit: AP

The foreign minister’s remarks follow two high-profile cases in Hong Kong’s High Court in mid-November. In the first, 45 pro-democracy advocates were jailed for up to 10 years for subversion, among them Ng, who was handed a sentence of seven years and three months. The following day, media tycoon and trenchant critic of Beijing, Jimmy Lai, began testifying in his high-profile trial against charges of colluding with foreign forces and publishing seditious material.

The prosecutions have been condemned by numerous Western governments and human rights groups, and the Australian government has called for the repeal of the national security law.

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 independence of the court. Five judges have left the court this year – two of them, British judges Lord Jonathan Sumption and Lord Lawrence Collins, explicitly citing the political situation as the reason for their departure.

To a chorus of supporters of Hong Kong’s pro-democracy movement, the remaining judges are an artifice of legitimacy on a legal system eroded by China’s attacks on the rule of law in Hong Kong. The debate has been particularly heated in the UK, where British judges have come under sustained public pressure to resign, and the former conservative government said their presence risked “legitimising oppression”.

Lord Chris Patten, the last British governor of Hong Kong, has been a prominent critic of the ongoing service of foreign judges.

When the Court of Final Appeal, in August, unanimously upheld the convictions of Lai and seven pro-democracy activists who participated in an unauthorised 2019 protest, Patten denounced the “unjust” verdict as having been made worse by the fact that British judge David Neuberger was party to it.

“In this case, perhaps some of his views on the law changed between the first class waiting room at Heathrow and the arrival terminal of Hong Kong International Airport,” Patten said at the time.

Riot policemen firing tear gas to protesters on a street during the anti-extradition bill protest in Hong Kong in August 2019.Credit: AP

Ted Hui, a former Hong Kong politician who fled to Australia in 2021 and has a police-issued bounty on his head for alleged national security breaches, believes the remaining overseas judges should resign, saying “leaving the judiciary of Hong Kong is to stand with Hong Kong people”.

Kevin Yam, a former Hong Kong lawyer who now lives in Australia and also has a bounty on his head for his activism, says Ng’s jailing and the targeting of Hui and himself should prompt a reflection on why the judges are staying.

“How well does it sit, for people who are essentially representatives of Australia sitting on the Hong Kong Court of Final Appeal, when you’ve got three Australian citizens or residents in that sort of situation?” he said.

The Australian judges, along with two remaining UK judges Leonard Hoffmann and Neuberger, have defied calls for them to resign from their posts.

Their decision to remain raises a number of vexed questions, including whether they can still have a meaningful influence on the rule of law. And what the impact on Hong Kong’s legal system would be if they all resigned en masse.

Views from inside Hong Kong

Meanwhile, inside Hong Kong, the continuing presence of overseas judges on the city’s top court has become a regular hot, if hushed, topic among lawyers at networking events and in water cooler conversations inside law firms.

“There’s still some rumour and questioning about whether the remaining foreign judges would now resign as a result of the sentencing [of the 45 democracy campaigners], and also the Jimmy Lai trial. There is definitely some discussion in the profession about it,” said one Australian lawyer who has worked in Hong Kong for 15 years.

A number of the Hong Kong-based lawyers interviewed for this piece requested anonymity to reflect freely on the court system in which they practise, to protect against any professional consequences and to avoid potentially running foul of the national security law themselves.

A British commercial litigation law firm partner, who has worked in Hong Kong for decades, said most people he had spoken to in the legal sector felt the judges should stay.

“It’s not going to change anything if they walk out and say, ‘Oh, we don’t want anything to do with Hong Kong any more,’ ” he said.

He believes that there remains a strong rule of law in Hong Kong, which would continue even if all the overseas judges quit the top court.

“You can argue the rule of law has been eroded a little bit in the national security space, but it’s only in that very narrow, albeit significant space. Most of the courts’ work to do with commercial cases, to do with non-national security cases, all goes on as normal.”

Another long-time Hong Kong solicitor believes that “out of principle, they ought to all fall on their swords”.

The Hong Kong-based Australian lawyer said a mass exodus of the foreign judges would strike a significant blow to morale and confidence in the legal system, adding: “If they are not being pushed to decide cases one way or the other – then I don’t see why they can’t continue to stay on the Court of Final Appeal.”

A sledgehammer to crack a nut: Beijing’s national security crackdown

It has been more than four years since the world watched as Hong Kong teetered on the brink of near-total social collapse.

What began as massive peaceful protests in June 2019 against a proposed extradition law between Hong Kong and the mainland and concerns about Beijing’s growing influence, often descended into violent clashes between police and radical activists over the following year.

As tensions intensified, the Chinese government intervened, inserting a new national security law into Hong Kong’s Basic Law, sometimes referred to as its mini-constitution, which it claimed was necessary to restore order. It was signed in to operation by Chinese President Xi Jinping on June 30, 2020, without local consultation and took immediate effect, criminalising secession, subversion, terrorism and collusion with foreign organisations.

Since then, it has been used to haul hundreds of protesters, activists, academics, journalists and former opposition lawmakers before the courts on national security charges, in conjunction with colonial-era sedition laws, in a crackdown that has been widely condemned as an effort to crush dissent in the city.

One veteran Hong Kong lawyer likens the law’s application by authorities to a “sledgehammer being used to crack a nut”, but said the overseas judges were not being drafted to “uphold the bubble of [the] national security law”.

“They’re there to deal with other cases where rule of law does apply. It really does add something to the jurisprudence here, and it would be a great shame for that to be taken away,” he said.

The judges’ defenders point to cases where they have had a tangible impact, such as Keane’s decisive role in a 3:2 judgment last year that ruled in favour of recognising a right to gay civil unions in a case brought by democracy activist Jimmy Sham Tsz-kit.

But to its legion of critics, Beijing’s law sits in irreparable conflict with the other elements of the Basic Law – regarded as the legal heart of the “one country, two systems” principle that China agreed to when Britain handed back the colony in 1997. It promised Hong Kongers a high degree of autonomy and political freedoms not otherwise enjoyed in mainland China, but it also obligated the city to have a national security law.

As a way of preserving the British legal tradition in Hong Kong, the Basic Law provided for the creation of a Court of Final Appeal that could invite overseas judges from other common law countries to sit on it, replacing the UK Privy Council in hearing appeals from the region.

The court functions with appeals heard by five judges, comprising four permanent Hong Kong judges and one non-permanent judge, typically chosen from the ranks of overseas judges who are not based 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 its possible they will never be selected to do so, or could elect to make themselves unavailable for such cases.

For Sumption, who quit the court in June saying the rule of law had been “profoundly compromised” and Hong Kong was “slowly becoming a totalitarian state”, the erosion of the rule of law in one part of legal system – that is, in national security cases – cannot not be siloed from the broader system.

“The rule of law is indivisible, and that if there is one area of the court’s business where they are effectively compromised by pressure from the Chinese government, then one cannot assume that that will not happen in other areas,” he told the British Law and Disorder podcast in October.

Sumption’s red line was the High Court’s decision in the case known as the “Hong Kong 47” to convict Ng and 13 other pro-democracy activists of conspiracy to commit subversion for holding a peaceful unofficial primary election. The verdict, he said, demonstrated “the judiciary were prepared to kowtow to Beijing”.

The court found that the intention of Ng and the other activists (31 had earlier pleaded guilty and two were acquitted) was to preselect pro-democracy candidates who could win majority control of the Hong Kong legislature at official elections later that year and reject the government’s budgets, with the aim of toppling the city’s leadership.

“You might as well say that the UK Labour Party was guilty of subversion by winning the election, which caused the last Conservative prime minister to resign. I mean, it’s as absurd as that, and that’s why I left,” Sumption told the podcast.

His views have been strongly rejected by the Hong Kong government. The Hong Kong Bar Association has also defended the independence of the judiciary, as have a number of the resigning judges, including Lord Collins and Canadian Beverley McLachlin who quit this year while expressing their total confidence in the court on the way out the door.

Pro-democracy activist Raphael Wong queues up for public gallery seats ahead of the sentencing of the 45 pro-democracy activists convicted in Hong Kong’s largest national security case.Credit: Daniel Ceng

Hundreds of Hong Kongers, along with international media, queued for hours outside the court to await the sentencing of the 45 activists this month, such was the significance of the outcome for the pro-democracy movement in the city.

Among them was Raphael Wong, a prominent activist who has already served jail time for his role in unauthorised 2019 protests. He believes the optics of some judges leaving has been good for keeping the international spotlight on Hong Kong’s courts, but if all of them quit the impact would be catastrophic.

“If there’s no more foreign judges the Chinese judges will not be held accountable by the international community,” he says.

Australian judges, the last men standing

The Australian judges have been restrained in their public remarks about why they have chosen to stay. In June, in response to Sumption’s and Collins’ departures, French told this masthead that “mass resignation would be damaging to the rule of law and contribute to the isolation of Hong Kong from international legal thinking”.

“For the time being, engagement is preferable to disengagement,” he said.

Keane told The Australian Financial Review he did not believe a red line had yet been crossed in the form of government pressuring the judiciary or refusing to accept the decisions of the courts, and rejected suggestions judges were staying on for the money as “insulting”.

The overseas judges are reportedly paid $HK399,950 (or about $80,000) per sitting, which requires them to travel to Hong Kong for one month to hear several appeals. It includes paid flights and accommodation.

It’s a well-paid gig, without question. But the money is unlikely to be the main drawcard. Judges of their prestige are sought after in international arbitration work once they leave the bench, and can charge about $15,000 a day for a role that doesn’t come with the scrutiny and moral wrestling that has enveloped the Court of Final Appeal.

The judges’ public statements indicate that they, too, have kept the door open to their eventual departure. A tipping point not yet reached is one that soon could be.

The Australian lawyer concedes it’s difficult to know whether things will get better or worse in Hong Kong, and that he may one day also abandon the city and the legal system he loves practising in.

“It may be inevitable. We may be fighting against the tide of history, but I don’t think that’s any reason to accelerate it,” he says.

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