Bulletin Number Five 1984

27th Congregation the chief executive acting in accordance w ith the recommendation o f a tribunal appointed by the chief judge o f the court o f final appeal, consisting o f not fewer than three local judges. Additionally, the appointment or removal o f judges o f the highest rank shall be made by the chief executive w ith the endorse­ ment o f the Hong Kong legislature and reported to the Standing Committee o f the National People's Congress for the record. I personally feel that (1) for a period o f transition we should invite people coming from Common Law countries, mainly the United Kingdom, Australia, Canada and New Zealand, to come here and assist our Judiciary. (2) The laws o f those four countries and that o f Hong Kong are largely similar, it w ill therefore be easy for lawyers from those countries to work in Hong Kong. (3) A team o f visiting lawyers w ill supplement the shortage o f competent lawyers in Hong Kong. It w ill not be beneficial to forcibly elevate local lawyers who are w ithout the necessary qualities and experience. In particular, the Supreme Court requires Judges w ith great qualities and experience and it is only when we have slowly but surely succeeded in training up Hong Kong talents that we may preserve a reasonable standard. (4) The Common Law is a system that is lively and dynamic. There are new developments almost every year. By keeping in contact w ith the Common Law through foreign lawyers serving in Hong Kong we could avoid being out o f touch and at the same time enrich our own law. The urgent task at the moment is to attract suitable Hong Kong and expatriate people to serve w ithin our Judiciary. The difficulties cannot be underestimated. But three factors are important: (i) The Judiciary must preserve its present independence. (ii) The judge's salary, pension, security o f tenure, and career advancement must be guaranteed. (iii) The dignity o f the Judiciary must be protected. These we can perceive in the Draft Joint Declaration. 3. Precedents o f Foreign Courts A t present, those that are most frequently cited are English decisions, next come Hong Kong decisions, though there are occasions when Australian, New Zealand, Canadian and American decisions are also referred to. There are many complicated rules governing the weight to be given to such decisions and whether they are binding on our courts. These rules fall outside the ambit o f this talk. The only decisions made outside Hong Kong which are legally binding on Hong Kong courts are the opinions o f the Judicial Committee o f the Privy Council in England. A ll other decisions from countries outside Hong Kong enjoy persuasive authority and the degree o f persuasiveness depends on the rank o f those courts and o f the Hong Kong courts making references to them. My personal view is that opinions o f the Privy Council given before 1st July, 1997 should be made part o f the Hong Kong law and w ill be binding on our courts. Privy Council's opinions made after that date w ill not have binding authority but w ill enjoy high persuasive authority just as those decisions made by the higher courts o f other Common Law jurisdic tions. In this way Hong Kong w ill retain its sovereignty w ithin the Judiciary but at the same time enrich our law by reference to others. 4. The Final Court o f Appeal Civil and criminal cases o f major importance dealt w ith by the Hong Kong Court o f Appeal may, under certain circumstances, go on further appeal to the Privy Council in London. In these circumstances, the Privy Council is Hong Kong's Final Court o f Appeal. In recent years, this type o f appeal has averaged about twenty cases per year, two-thirds o f which are rejected. From this, we may see that the standard o f Hong Kong courts has reached a certain level. After 1997 the Final Court o f Appeal w ill no longer be the Privy Council, in which case Hong Kong w ill have to establish its own Final Court o f Appeal, comprising three to five judges. Possibly even at that time, there w ill still be a shortage o f people in Hong Kong suitable for appointment to this high office. My suggestion is that o f the three to five judges, two or three may be judges from Hong Kong's own Court o f Appeal and the others may be eminent and senior judges coming from Common Law countries, such as the United Kingdom, Australia, New Zealand or Canada. It is only time and expense which keep down the number o f appeals to the Privy Council at present. When the Final Court o f Appeal is local, I should expect the number o f appeals to increase very quickly —unless the number o f appeals is controlled by a tough system o f requiring leave to be given before an appeal may be lodged. It may well be that the Court w ill also have the task o f interpreting the Basic Law and protecting basic rights. Depending on NEWS 11