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Percy Lo-Kit Chan
8 September, 2009  
Letter from Honkers

Shock retirement … Hong Kong CJ bails out five years early … Is the mainland meddling? ... Trouble attracting talent to the bench … Percy Lo-Kit Chan reports

imageThe ambient temperature is 28 degrees (at night) – the humidity hovers near 90 percent.

In the bars where the legal team foregathers to escape the climate one topic has local lawyers agog: Chief Justice Andrew Li Kwok-nang, the first CJ under the HKSAR government, has announced his retirement five years early.

He says he wants to allow his successor to pick the replacements for the 10 senior jurists who must retire soon.

However, the Hong Kong legal mentality is quick to suspect some outside interference from the PRC.

The Hong Court of Final Appeal is the highest appellate court, but its decisions can, in certain circumstances, be overruled by the People’s Consultative Congress on the mainland.

Is the mainland behind the sudden retirement?

The central government has stressed recently that the courts are to aid the executive, not to superintend it.

There is a desire not to import notions of natural justice, or procedural fairness, into the administrative system of the PRC.

The rule of law, as common lawyers would perceive it, is one of the great invisible advantages that Hong Kong continues to enjoy as an entrepot.

imageSo a change in the CJ is hot news.

It is agreed generally that the Chief Justice’s (seen here) term in office has been a great success.

The Hong Kong Court of Final Appeal has achieved an enviable reputation in its decision-making. Partly this has been helped by roping in non-permanent judges to give judgments in areas of expertise.

(Smiler) Gleeson has recently been appointed and McHugh NPJ, in an exquisite piece of judicial irony, gave the leading judgment recently in a complex evidence case involving betting and commission agents.

The new chief justice will face a difficult task.

He will need to persuade senior barristers in the Administrative Region to forego brief fees beyond the dreams of Sydney (or even Melbourne) avarice to sit in judgment on complex commercial matters rather than to argue them.

The Hong Kong bar (modeled on UK lines) has about 900 members but it is very “bottom” heavy.

Many young lawyers who cannot get a training contract as a solicitor hazard the bar, but the majority of the cream is enjoyed by about 150 senior barristers.

The press has suggested that Justice Geoffrey Ma or Justice Robert Tang may get the jersey.

Both are senior and respected jurists and Justice Ma is only in his early 50s. Possible tips from outside the present bench include Mr Benjamin Yu SC.

One thing is certain – there is virtually no likelihood that Justice Li will be seen conducting “arbitrations” or “mediations” for a large daily fee.

The conservatism of the local profession means it is unlikely we’ll follow the increasingly egregious Australian example where a judge is presiding one day and the next is engaged by a large law firm to “consult” in-house, or hang out his shingle in Phillip Street while still drawing a large judicial pension.

From Percy Lo-Kit Chan