Two British judges quit Hong Kong’s top court

Two non-permanent judges of Hong Kong’s Court of Final Appeal (HKCFA) have tendered their resignations after lawmakers in the United States and United Kingdom called for sanctioning the city’s foreign judges and accused them of legitimizing the government’s crackdown on political dissent. 

The news of the resignation of Lawrence Collins, a non-permanent judge of Hong Kong’s highest court since 2011, was broken by British solicitor Joshua Rozenberg KC in his blog on Thursday. 

In the article, Collins said: I have resigned from the Court of Final Appeal because of the political situation in Hong Kong, but I continue to have the fullest confidence in the court and the total independence of its members. 

He did not elaborate what political situation concerned him. 

Jonathan Sumption, who has served the Court of Final Appeal since 2019, told the Financial Times that he had also resigned. He said he would publish a statement in due course. 

The two judges’ resignation came after the Committee for Freedom in Hong Kong (CFHK) Foundation on May 14 released a report with the title “Lending prestige to persecution: how foreign judges are undermining Hong Kong’s Freedoms and why they should quit.” Alistair Carmichael, chairman of the All-Party Parliamentary Group on Hong Kong, hosted the report launch.

The report said Sumption was involved in a 2021 case affirming the expansive use of rioting charges to imprison nonviolent protesters.

It also said Collins took leave of absence in Sept 2021 when he and other judges were required to declare their financial benefits from the Court of Final Appeal.

The duo’s resignations also happened after the United States’s Congressional-Executive Commission on China (CECC) in a report published on May 10 called on the Biden administration to use its power granted by the Hong Kong Human Rights and Democracy Act and the Hong Kong Autonomy Act to impose sanctions on prosecutors, judges and other individuals who helped dismantle Hong Kong’s autonomy and rights protections.

It called on the Congress to pass the Hong Kong Judicial Sanctions Act, which was introduced by several US Representatives to hold Hong Kong officials accountable for human rights violations. 

National Security Law

In June 2020, Beijing passed a national security law for Hong Kong after anti-extradition protests broke out in the former British colony between June 2019 and early 2020.

In September of the same year, veteran Australian judge James Spigelman resigned from the Court of Appeal citing concerns about the sweeping scope of the National Security Law. 

In March 2021, Sumption wrote in a letter to The Times, saying that calls for the withdrawal of British judges had nothing to do with judicial independence or the rule of law but were intended to pressure Beijing to change its position on democracy.

He stressed that it was not a proper function of judges to participate in political boycotts.

In March 2022, serving UK Supreme Court justices Robert Reed and Patrick Hodge resigned from Hong Kong’s highest court under pressure from the British government.  

Lord Reed said serving members of the UK’s Supreme Court could not continue to sit on Hong Kong’s court without appearing to endorse a government that had “departed from values of political freedom, and freedom of expression.”

At that time, then Foreign Secretary Liz Truss said the UK government supported the withdrawal of serving British judges from the HKCFA. In July 2023, last Hong Kong governor Chris Patten called for the withdrawal of British judges from Hong Kong’s top court.

“Of the foreign judges on HKCFA, Sumption and Collins are probably the strongest commercial lawyers,” Kevin Yam, a lawyer and political activist who was wanted by Hong Kong police for national security offenses, says in his X account. 

“Sumption was the doyen of the commercial bar in England while Collins was a longtime partner of London litigation powerhouse Herbert Smith and a world-leading authority on conflicts of laws issues,” Yam says. “Their departures are a real blow to the commercial cases bench strength of the HKCFA.”

He says that the upcoming challenge is that the two local permanent judges Roberto Ribeiro and Joseph Fok are the first two due next to retire from the HKCFA. He says, as there are no comparable candidates who are considered politically acceptable by Beijing to replace them, the overall caliber of the HKCFA will change after their departure. 

‘Notes with regret’

On Friday, Andrew Cheung, chief justice of the Court of Final Appeal said in a statement that he noted “with regret” the resignations of Collins and Sumption. 

He said the Judiciary is committed to upholding the rule of law and judicial independence in Hong Kong.

The Bar Association also expressed regret over the resignations of two top court judges but added that their departure would not affect the court’s judicial functions.

Chan Chak-ming, president of the Law Society of Hong Kong, said the society supports keeping overseas non-permanent judges in Hong Kong, as stated in the Basic Law.

Chief Executive John Lee expressed regret at the resignations. Lee noted that Collins had stated that he continued to “have the fullest confidence in the Court and the total independence of its members.”

Ta Kung Pao, a pro-Beijing newspaper, said in its editorial on Friday that, although Collins claimed that he was concerned by the “political situation” in Hong Kong, he actually resigned due to the pressure from the UK. 

It said the publication of the CFHK report and the arrest of some staff members of the Hong Kong Economic and Trade Office (HKETO) in London last month were parts of a smear campaign that aimed to attack Hong Kong’s judicial independence and shake the foundation of the city’s rule of law. It said such a campaign is doomed to fail. 

In March this year, the Hong Kong government passed new national security legislation, known as Article 23 of the Basic Law. On May 28, it used the law for the first time to arrest six people, including Chow Hang-Tung, a barrister and human rights activist who has been jailed on other charges, for sedition. 

Read: New security law worries foreign firms in Hong Kong

Follow Jeff Pao on X at @jeffpao3

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