Recruiting in China

Our judiciary remains fiercely independent," Secretary for Security Lai Tung-kwok said at a luncheon address in London last week. "We uphold the rule of law and Hong Kong people enjoy a wide range of rights and freedoms."

An independent judiciary is one of Hong Kong's most positive attributes, especially now that the civil service's image is somewhat tarnished. However, while the quality of judges remains high, there is a troubling shortage of suitable candidates who can move up to the bench.

One reason is that Hong Kong did not develop legal education until very late. The Hong Kong College of Medicine for Chinese produced its first medical graduates in 1892 but the first law graduates from the University of Hong Kong did not appear until 80 years later, in 1972. Because of that, Hong Kong's first local judges were all British-trained. Even then, there were disincentives to serve as judges under the colonial system.

Simon Li Fook-sean, who died recently, was the first Chinese person to serve as a high court judge in 1971 and retired in 1987 when he was vice-president of the Court of Appeal. Throughout this period, he complained bitterly about the discriminatory treatment accorded local judges.

In those days, however, Hong Kong could draw on other sources for legal and administrative talent - not just from Britain but from its colonies around the world. Those expatriate judges served Hong Kong well but many are now retired or close to retirement.

None of the original judges on the Court of Final Appeal in 1997 was locally trained. Currently, only one - Patrick Chan Siu-oi - graduated from the University of Hong Kong, but he is retiring in October and will be replaced by another British-trained jurist, Joseph Fok.

Fortunately, China was pragmatic when it enacted the Basic Law. That document stipulates that only the chief justice of the Court of Final Appeal and the chief judge of the High Court must be Chinese nationals. Other judges - and other legal personnel - can be recruited overseas.

Since 1997, there has been a perhaps understandable reluctance to recruit overseas judges. But Hong Kong has no choice if it is to maintain its high standards. The city itself simply does not have the depth and breadth of legal talent.

Chief Justice Geoffrey Ma Tao-li has acknowledged the problem and said: "So far as I'm concerned, it is better to leave a position vacant than to get people who are not qualified or are not the right people." Of course, positions cannot be left open indefinitely. Already, the waiting time for both civil and criminal cases has lengthened beyond prescribed targets.

Overseas judges are at a disadvantage in not knowing the Chinese language and the local culture. But until Hong Kong can fill the void - by training top legal minds and perhaps also by widening the pool to include more solicitors and academics - there may well be a need to recruit judges from overseas.