Hong Kong's foreign judges should resign: Our new report shows why

In a new report from the Committee for Freedom in Hong Kong Foundation, Alyssa Fong and I examine the role British, Australian and Canadian judges play in Hong Kong's human rights abuses

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(Left) Ten overseas judges currently sit on the Hong Kong Court of Final Appeal; (Right) Our report published today calling for the judges’ resignation

Since 1997, Hong Kong’s judiciary has regularly appointed foreign judges to sit temporarily on the Court of Final Appeal and rule on cases. In a new report published by the Committee for Freedom in Hong Kong Foundation (CFHK), Alyssa Fong and I expose the serious ethical problems these appointments pose in Hong Kong’s current era of political persecution, including a number of previously undiscovered findings. We call on the ten British, Australian, and Canadian judges currently on the court to resign, and urge the three Western governments involved to take action.

You can read the full report and executive summary here, and read the CFHK press release here.

There are currently ten foreign judges appointed as what is known as “overseas non-permanent judges” on the Hong Kong Court of Final Appeal: former UK Supreme Court justices Lords Jonathan Sumption, Nicholas Phillips, Anthony Collins, David Neuberger, and Hubert Hoffman of the United Kingdom; Former Chief Justice of Canada Beverley McLachlin; and former Australian judges James Allsop, Patrick Keane, Robert Shenton, and William Gummow.

Some of these judges, most notably Lord Neuberger and Beverley McLachlin, have built their reputations on promoting human rights. Yet despite their esteemed backgrounds, these judges are lending their reputations to a judicial system that has strayed far from its once-celebrated independence and respect for international human rights norms. Since the 2020 National Security Law, the Hong Kong judiciary has played an instrumental part in stifling dissent by convicting and imprisoning more than 1,800 political dissidents and stifling freedoms across the territory.

The court system’s role in this crackdown has been possible due to Beijing’s successes in undermining the judiciary’s prior independence. From our report:

Beijing exerts strong influence over the judiciary through multiple channels. Most directly, it retains the power to “interpret” the Basic Law and National Security Law, allowing it to overturn “final” decisions of the Court of Final Appeal. Beijing has repeatedly used this power to interfere with court rulings. Additionally, the Beijing-appointed Chief Executive has authority over judicial appointments and promotions, a power that has been used to ensure that the Courts reward those who support the regime and sideline those who do not. Finally, the city’s Legislative Council retains the authority to restrict the authority of the courts, and since an election “reform” in 2021 that gave Beijing unfettered power over the Legislative Council, that power now effectively rests with Beijing as well.

The foreign judges’ contributions Hong Kong’s crackdown on dissent hasn’t merely been passive. Our report also details a number of instances where foreign judges have directly voted to imprison political dissidents, with significant consequences for the people involved and for Hong Kong’s global standing on human rights:

In one notable case, Judge Gleeson and four colleagues voted to reimpose human rights activist leader Chow Hang-tung’s conviction for inciting an unauthorised assembly. The unauthorised assembly was the annual candlelight vigil for victims of the 1989 Tiananmen Square Massacre, a tradition long practiced in Hong Kong but banned since 2020…Chow is now serving a 15-month sentence in the case (while also awaiting trial in a separate case for subversion under the National Security Law).

Lord Hoffmann, an active member of the House of Lords, was instrumental in reinstating the conviction of a man only accused of filming others who were following a police officer…The defendant had been filming protests since June 2019 in hopes that the footage would be used by news sites and included in documentaries. Thanks to Lord Hoffmann and his colleagues’ ruling, the defendant was sentenced to three months’ imprisonment.

Four of the five British judges are also members of the UK House of Lords, where they must swear allegiance to the Crown in addition to the oath they have sworn to the Hong Kong government. These dual public service oaths to two governments of starkly different ideologies present an intractable conflict of interest, especially as geopolitical tensions between the UK and China intensify:

One particularly notable finding we uncovered was the remarkable lengths to which these four judges have gone to avoid disclosing to the British public their compensation from the Hong Kong government. In 2021, the House of Lords proposed a change to the chamber’s Code of Conduct that would have required Lords to disclose the value of compensation and benefits received from foreign governments—a sensible requirement for members of a national legislative body:

During the chamber’s debate over the rule change in 2021, Lord Neuberger stood to oppose the new disclosure rule. He noted how it might affect his role as an international arbitration lawyer but did not disclose the more notable and potentially controversial effect the rule would have on him: requiring him to disclose his salary and benefits from the Hong Kong government.

The new disclosure rule took effect in October 2021, but would not apply to Lords who were on a leave of absence. Lord Collins took leave of absence in September 2021, Lord Phillips took a leave of absence in December 2021, and Lord Neuberger took a leave of absence in January 2022—in each case before they were required to declare their financial benefits from the Court of Final Appeal. Lord Hoffmann has not taken a leave of absence, but nonetheless has still failed to register his financial renumeration from the Hong Kong government in apparent violation of the rule.

I invite you to read and share the full report, and welcome your thoughts and feedback in the comments or by messaging me.