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VOL. 80 PART 2 MARCH 2022
study, including in Rosalind Dixon & Vicki Jackson,
“Hybrid Constitutional Courts: Foreign Judges on
National Constitutional Courts” (2019) 57:2 Colum
J Transnat’l L 283 and Anna Dziedzic, Foreign
Judges in the Pacific (Oxford: Hart, 2021).
6. Alvin Lum, “Foreign Judges Key to Success of Hong
Kong’s Top Court, Chief Justice Says”, Yahoo News
(25 June 2018), online: <sg.news.yahoo.com/for
eign-judges-key-success-hong-064536969.html>.
7. Hon Justice Joseph Fok, PJ, “The Use of Non-Local
Judges in Overseas Jurisdictions – Judges from Other
Common Law Curisdictions in the Hong Kong Court
of Final Appeal” (Commonwealth Law Conference
2017, 22 March 2017) at paras 10–11.
8. Article 85 of the Basic Law provides: “The courts of
the Hong Kong Special Administrative Region shall
exercise judicial power independently, free from any
interference. Members of the judiciary shall be
immune from legal action in the performance of their
judicial functions.”
9. “Face to Face With Rt. Hon. Beverley McLachlin PC
CC CStJ”, Hong Kong Lawyer (August 2018), online:
<www.hk-lawyer.org/content/face-face-rt-hon-bev
erley-mclachlin-pc-cc-cstj>.
10. Edward R Chin, “Foreign Yet Familiar”, Asia Business
Law Journal (23 September 2020), online:
<law.asia/hong-kong-overseas-judge/>.
11. Fok, supra note 7 at paras 21–23. Article 84 of the
Basic Law specifically provides that Hong Kong
courts “may refer to precedents of other common law
jurisdictions”.
12. Chi-Kun Shi has said “Justice McLachlin should
immediately distance herself from the HKCFA, unless
she receives substantive opportunity to apply her
considerable expertise to adjudicate cases of human
rights and fundamental freedoms, which so far she
has not”: James Griffiths, “Hong Kong’s Crackdown
Renews Scrutiny on Role of Foreign Judges, Including
Canada’s Beverley McLachlin”, The Globe and Mail
(12 January 2022), online: <www.theglobeand
mail.com/world/article-hong-kongs-crackdownagainst
opposition-casts-fresh-scrutiny-on-role/>.
Similarly, one author has noted that “it is unlikely that
foreign judges will have to sit in judgment on the contentious
cases where the national security law is
applied to stifle freedom of speech”, observing that
“one of the more controversial aspects of the law
provides that Hong Kong’s chief executive, rather
than its chief justice, will appoint judges to hear
national security cases”. He continues: “But this
should not offer any solace. In essence, then, the system
seems purposefully designed to avoid foreign
judges addressing the impacts of the national security
cases in their judicial capacity. But, while they
might be personally removed from the politics and
uncomfortable cases, they remain an integral part of
the Hong Kong system and should keep in mind the
broader ramification of their presence”: Bruno Gélinas
Faucher, “In Good Conscience: Now That China
Has Passed a New National Security Law, Should
McLachlin and Her Foreign Peers Continue to Sit on
Hong Kong’s Highest Court of Appeal?”, CBA
National (15 July 2020), online: <www.nationalmagazine.
ca/en-ca/articles/law/opinion/2020/
in-good-conscience>.
13. Justice Fok referred to “what may, in crude terms, be
described as the allied ‘canary in the coalmine’ phenomenon”:
Fok, supra note 7 at para 24. The
“canary in the coalmine” analogy was also used by
one of the HKCFA’s overseas NPJs, Lord Neuberger,
who stated that “the foreign NPJs are the canaries in
the mine: so long as they are happy to serve on the
HKCFA, then I think you can safely assume that all is
well with judicial independence and impartiality in
Hong Kong, but if they start to leave in droves, that
would represent a serious alarm call”: “Judges,
Access to Justice, the Rule of Law and the Court of
Final Appeal Under ‘One Country Two Systems’” (13
September 2017), online: <www.hkcfa.hk/fileman
agerspeech/en/upload/1195/Judges,%20Access
%20to%20Justice,%20the%20Rule%20of%20Law%2
0and%20the%20Court%20of%20Final%20Appeal%
20under%20%E2%80%9COne%20Country%20Two
%20Systems%E2%80%9D.pdf>.
14. Blackwell, supra note 3; Primrose Riordan, Nicole Liu
& Jane Croft, “Hong Kong Bar Pleads with Foreign
Judges to Keep Serving”, Financial Times (5 October
2020), online: <www.ft.com/content/027e77c0-
3ab9-4638-8858-4f5471bb2a0e>.
15. Griffiths, supra note 12. See also the January 24,
2022 speech of the HKCFA’s present chief justice,
Andrew Cheug Kuinung, online: <https://www.info.
gov.hk/gia/general/202201/24/P20220124003
78.htm>.
16. Ibid.
17. See Gélinas-Faucher, supra note 12.
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