President n Vice-President of Supreme Court of United Kingdom Concurrently Serve as Hong Kong Judge

 

Why can the President and Vice-President of the Supreme Court of the United Kingdom concurrently serve as a Hong Kong judge?

The Chief Executive of the Hong Kong Special Administrative Region Government Carrie Lam has accepted the recommendation of the Hong Kong Judicial Officers Recommendation Committee and will appoint He Zhiyi as a non-permanent judge of the Hong Kong Court of Final Appeal with the approval of the Legislative Council.

 

Image of Patrick Hodge
Patrick Hodge

Patrick Hodge is a British citizen and is currently the Vice President of the Supreme Court of the United Kingdom.

 

The non-permanent judges of the Hong Kong Court of Final Appeal and the current British judges are the two key messages in this news.

 

Who is He Zhiyi?

Let's clarify a few important concepts first.

Hong Kong courts are mainly composed of Magistrates' Courts, District Courts, High Courts and Court of Final Appeal.

 

The Court of Final Appeal is the highest appellate court within the court system of the Hong Kong Special Administrative Region, and has the final jurisdiction over litigation within the jurisdiction of Hong Kong. 

The judges of the Court of Final Appeal include the Chief Justice, permanent judges, and non-permanent judges with a total of no more than 30.

 

When was the system of non-permanent judges in Hong Hong introduced?

The system of "non-permanent judges" was introduced in 1997 by Li Guoneng, the then Chief Justice of the Hong Kong Court of Final Appeal. 

Hong Kong scholars commented that this system hopes that by inviting overseas senior judges to join, promote the judgment of the Court of Final Appeal to gain international recognition and encourage overseas courts to cite Hong Kong cases.

 

Non-permanent judges consist of two parts, one is former Hong Kong judges, and the other is well-known judges from other common law jurisdictions.

 

Should Kong Hong Kong Court of Final Appeal judge be a permanent resident?

According to the Hong Kong Court of Final Appeal Regulations, in the selection criteria for non-permanent judges of the Court of Final Appeal, there are no restrictions on whether the candidate is a Hong Kong permanent resident, whether he or she is resident in Hong Kong, or whether he has the right of abode in a foreign country.

 

He Zhiyi is 67 years old this year. As a British citizen, he was qualified as a Scottish Barrister in 1983. His practice mainly covers commercial and corporate law, but also covers public law.

 

A simulation portrait image for He Zhiyi


Since 2000, He Zhiyi has been appointed as a part-time judge in Scotland. He was appointed as a judge of the Supreme Court of the United Kingdom in 2013. 

He has been the Vice President of the Supreme Court of the United Kingdom since February this year. 

He is also an honorary professor at Stellenbosch University in South Africa and Shanghai East China University of Political Science and Law, and he has lectures at both universities.

 

Carrie Lam said that He Zhiyi has a lofty status and an outstanding reputation, and he is convinced that he will make a great contribution to the Court of Final Appeal.

 

British Current Judge

Why does Zheng know (WeChat ID: upolitics) especially mention He Zhiyi's status as a "current British judge"?

After the return of Hong Kong, the British government sent two current judges to the Hong Kong Court of Final Appeal to serve as non-permanent judges, namely Robert Reid (Way Yande) and Brenda Hale (He Xiyi).

 

Wei Yande took office as the President of the Supreme Court of the United Kingdom in January this year. He served as a non-permanent judge of the Hong Kong Court of Final Appeal in 2017. At that time Wei Yande was a judge of the British Supreme Court. 

He Xiyi became the President of the Supreme Court of the United Kingdom in 2017 and began serving as a non-permanent judge of the Hong Kong Court of Final Appeal in 2018.

 

On July 17 this year, Wei Yande also issued a statement saying that if the Hong Kong National Security Law affects the "independence" of the SAR courts, the United Kingdom will stop sending current judges to the Hong Kong SAR.

 

In response, a spokesperson for the Hong Kong Judiciary said that the independence of the judiciary and the rule of law are the cornerstones of Hong Kong society and are protected by the Basic Law.

 

Zheng Zhi (WeChat ID: upolitics) noted that after He Zhiyi’s appointment, there will be 14 overseas non-permanent judges from other common law jurisdictions in the Court of Final Appeal, of which 10 are from the United Kingdom, 3 are from Australia, and 1 is from Australia. Canada.

 

Among them, there are two current judges in the UK, namely Wei Yande, the current president of the Supreme Court of the United Kingdom, and He Zhiyi, the vice president.


Carrie Lam pointed out that joining the Hong Kong Court of Final Appeal by these prestigious judges demonstrates Hong Kong's judicial independence and helps maintain a high degree of confidence in Hong Kong's judicial system.

 

Must swear to support the Basic Law

These overseas non-permanent judges come to Hong Kong in rotation for a month.

 

When hearing and adjudicating appeals, the Hong Kong Court of Final Appeal consists of five judges. 

Since July 1, 1997, with very few exceptions, the Court of Final Appeal has selected a judge from the list of non-permanent judges in other common law jurisdictions to appear in court when hearing substantive appeals.

 

The "People's Court" once pointed out that the non-permanent judge system of the Hong Kong Court of Final Appeal has both practical and legal reasons.

 

From a practical point of view, Hong Kong's use of the common law system requires talents who are well versed in common law. 

Moreover, due to historical reasons, a large number of judges from the Commonwealth countries worked in the Hong Kong judiciary before the return of Hong Kong. 

Retaining these personnel will ensure that the rule of law in Hong Kong will not be interrupted during the transition period of the return.

 

From a legal perspective, Article 82 of the Basic Law stipulates that the Court of Final Appeal may invite judges from other common law jurisdictions to participate in trials as needed.

 

The non-permanent judge system of the Hong Kong Court of Final Appeal focuses on the judicial practice experience of the candidates in common law areas. 

There are no restrictions on whether the candidate is a permanent resident of Hong Kong, whether he or she is resident in Hong Kong, and whether he has the right of abode in a foreign country.

 

However, when these judges take office, regardless of their nationality, they must swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and be loyal to the Hong Kong Special Administrative Region of the People's Republic of China.

 

The Hong Kong National People’s Congress representative and lawyer Chen Manqi said in an interview with a reporter from the Global Times that according to the Hong Kong National Security Law, the Chief Executive needs to consult the Hong Kong National Security Commission before appointing a national security case. He believes that foreign nationals or foreign nationals will be considered in the process of candidate selection. 

In the case of dual nationality judges, the Chief Executive has the ultimate check-in power.

 

She pointed out that the Hong Kong judicial system has always attached importance to judges not to have conflicts of interest. 

If judges have dual nationality or have sworn allegiance to other countries, the principle of avoiding conflicts of interest is not suitable for hearing national security cases.

 

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