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Kong law—not, for example, Canadian law. (This distinction may not arise
in relation to the concept of judicial independence, which is entrenched in
the Basic Law itself,8 rather than being a foreign construct.) When
appointed in 2018, McLachlin noted that she understood her “job in Hong
Kong” would be “to listen to the cases and apply the law and do so as fairly
as she can and not to go in and change the system or anything like that.
That would be for other people”.9 McLachlin added in 2020 that, as a foreign
judge, it was necessary to learn about and understand the particular jurisdiction’s
legal system, the “social and commercial context” and the local culture;
that she brought to the task “an attitude of deference”; and that while
“every person who judges has a perspective”, she was “very conscious” that
“when she is in Hong Kong, … her … sworn duty, is to apply the law of
Hong Kong”. She added that, as such, she is “not going to just apply Canadian
law”, though she “might personally make mental comparisons as she
is trying to work out the case in Hong Kong, and she might bring different
perspectives because of her experiences in her own country”.10
The decision of an overseas NPJ not to resign, even in face of concerns
they may have developed about judicial independence, may well be understandable
if they prioritize the Hong Kong Judge Approach. As long as they
have local colleagues to support and as long as overseas NPJs perceive
themselves as still being able to work from within the court to improve the
situation, resignation may be counterproductive. If everyone with power to
resist interference simply resigned in face of adversity, the system could
readily be taken over by those who invite and accelerate, rather than resist
(and perhaps ultimately overcome), that interference.
A second, though rather presumptuous, way of seeing the role of overseas
NPJs is to see their continued work within the system (both in deciding cases
and behind the scenes) as potentially contributing to the system’s strength
even more, or at least in different ways, than the work of their Hong Kong
colleagues (the “Benefit of Foreign Experience/Knowledge Approach”), by
virtue of overseas NPJs’ training, experience and knowledge.
The Benefit of Foreign Experience/Knowledge Approach traces back to
some of the reasons commonly given for the appointment of foreign judges.
Sometimes foreign judges are appointed to the courts of another jurisdiction
to fill gaps in numbers (where the local bar is small). Sometimes foreign
judges are sought out for particular experience. According to Justice Joseph
Fok (one of the HKCFA’s permanent judges), foreign judges initially provided
Hong Kong with experience that local judges lacked with serving on a
court of final appeal (given that until July 1, 1997, Hong Kong itself did not
have a court of final appeal other than the Judicial Committee of the Privy