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Cliff Buddle

The role of foreign judges on Hong Kong’s top court has become controversial in recent years, amid geopolitical tensions and criticism in the West of the city’s national security law.
A wave of departures, with some judges citing political concerns, has depleted their number. Now, there are only six, down from 15 in 2020.
Chief Justice Andrew Cheung Kui-nung warned last year that appointing judges of the right stature and experience “may be less straightforward than it once was”.
The death of Anthony Mason last week, arguably the most influential of all the foreign judges to have served in the city, prompts reflection on the continued value to Hong Kong of eminent justices from overseas.
He was certainly a judge of great stature and looking back on his distinguished career triggers memories of the Court of Final Appeal’s formative years.
Tributes to the judge have flowed in, including from Chief Executive John Lee Ka-chiu, Chief Justice Cheung and the Bar Association. They are a testament to the impact Mason had, especially during the turbulent early days of the top court, in forging its reputation and establishing core principles.
I often sat in the Court of Final Appeal at its former home, the French Missionary Building, in the late 1990s, when Mason was among the judges deciding some of the city’s most important cases. These were exciting times, following Hong Kong’s return to China, and there was a palpable sense that history was being made.
Mason, who retired from the Hong Kong court in 2015, died on Tuesday at the grand old age of 100. He has been described as one of Australia’s greatest judges, a man who helped shape the country.
Among his best known rulings there are the finding of an implied freedom of political communication and the recognition of traditional native land rights for indigenous people.
He stepped down as Australia’s chief justice in 1995 when reaching the mandatory retirement age. But a new chapter in his career was soon to begin.
The judge later recalled receiving a telephone call in 1997 from Hong Kong’s first chief justice, Andrew Li Kwok-nang, inviting him to become a “non-permanent” foreign judge on the new court. “I felt instinctively that it would be a great experience to work with him and his colleagues and so it proved. My service on the CFA and working with Andrew Li have been two highlights of my life,” he said in 2013.
Mason was among the first overseas judges to be appointed to the new court. Only four of them were on the original list of nominations, two from Australia and two from New Zealand, with 11 local judges.
But their number grew and the influence of the foreign judges was felt from the beginning. In the first decade of the court’s existence, all 42 human rights cases featured, among the five judges on the bench, one from overseas.
Mason was an expert in constitutional law. This was an area in which Hong Kong needed as much experience and know-how as it could get. The top court, replacing Britain’s Privy Council as the final decision-maker in cases, was tasked with applying the Basic Law, the city’s new constitutional document. This involved navigating uncharted legal waters. It was to be a stormy sailing.
Mason was one of the judges who ruled on the first consitutional case heard by the court in January, 1999. It was a controversial decision.
The court said it had an “unequivocal” power to strike out acts of China’s legislature, the National People’s Congress, if they breached the Basic Law. This bold – some said foolish – claim did not go down well with Beijing. The court averted a crisis by quickly delivering an unprecedented clarification at the Hong Kong government’s request.
The judgment also upheld the right of children from mainland China with a Hong Kong parent to live in the city, sparking fears of a mass influx.
Key parts of the ruling were effectively overturned by the Standing Committee of the National People’s Congress later that year using, for the first time, its ultimate power to interpret the Basic Law. That power was then confirmed, in broad terms, by the court.
The judges were first criticised for going too far in asserting their authority and then, in the face of a backlash, giving up more ground than necessary. But the court was trying to make sense of the new constitutional arrangements, which gave Hong Kong a high degree of autonomy and maintained judicial independence.
Mason later said he was drawn to the refreshing challenge of interpreting the Basic Law, a new constitutional text “unadorned by the encrustations of past judicial decisions”. He spoke of the unique nature of the law.
The judge went on to rule in a wide variety of cases, including those involving the right of abode for Chinese citizens born in Hong Kong, a new law criminalising desecration of the national flag, the offence of misconduct in public office, the defence of fair comment in defamation cases and the decision to grant “milkshake murderer” Nancy Kissel a retrial. A 2009 study revealed he had written or co-authored 11 judgments of the court involving human rights in its first decade, more than all the other non-permanent judges combined and second only to chief justice Li.
Many of the tributes to him speak not only of his great wisdom, integrity and legal expertise but also of his wit.
Speaking at the Hong Kong Club in 2015, he said humour could be deployed by lawyers to their advantage when making legal arguments, but it needs to be spontaneous.
“Laboured humour will almost certainly fall flat, unless it comes from a judge. Then everyone will fall about laughing in order to keep on side with the judge,” he added.
Mason will be missed. His Hong Kong legacy lies in the reputation he helped forge for Hong Kong’s final court and his commitment to an approach based on what he described as “impartiality, due process and judicial method.”
Hong Kong has changed since his time on the bench, which now belongs to a different era. But the role to be played by foreign judges and the need to adhere to principles of fairness and justice remains.


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Hong Kong courts

Mason’s legacy lies in the reputation he helped forge for Hong Kong’s final court

Former Australian chief justice Anthony Mason, one of the first non-permanent judges to join the Hong Kong Court of Final Appeal. Photo: Handout

Anthony Mason, who helped put top Hong Kong court on the map, dies at age 100

Tributes from current and former city officials poured in for the late jurist on Wednesday, just a day after he died. Photo: Handout

Anthony Mason has been praised for his contributions to the Court of Final Appeal. Photo: Jelly Tse

Anthony Mason arrives at the Court of Final Appeal in 1999. Photo: SCMP

Tribute to towering jurist: how the late Sir Anthony Mason shaped Hong Kong courts

Sir Anthony Mason is seen leaving the Court of Final Appeal in 1999. Photo: SCMP

Sir Anthony was instrumental in shaping the CFA’s constitutional jurisprudence from its earliest days, in cases such as Ng Ka Ling and Chong Fung Yuen (1999–2001). Photo: Handout

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The High Court upheld a policy curbing instant data access for journalists to vehicle registry data. Photo: Sun Yeung

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Opinion

The death of the influential Australian jurist at the age of 100 prompts reflection on the continued value to the city of eminent justices from overseas


The death of the influential Australian jurist at the age of 100 prompts reflection on the continued value to the city of eminent justices from overseas.


My Take

Hong Kong

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Expresses the views, ideas and conclusions of the author. (Eg. Enough of Crazy Rich Asians, think of crazy poor Hongkongers.)


Column

Mason’s legacy lies in the reputation he helped forge for Hong Kong’s final court

.css-1c6uqr6{color:inherit;font-weight:inherit;font-size:inherit;font-family:inherit;line-height:inherit;overflow-wrap:break-word;}The death of the influential Australian jurist at the age of 100 prompts reflection on the continued value to the city of eminent justices from overseas

The death of the influential Australian jurist at the age of 100 prompts reflection on the continued value to the city of eminent justices from overseas