Since his appointment in 2021, there has been no doughtier defender of judicial independence in the Hong Kong Special Administrative Region than the chief justice, Andrew Cheung Kui-nung. Whenever foreign critics have sought to tarnish the Judiciary’s image or intimidate its judges, his voice has been heard. Although judges invariably do their talking through their judgments, Cheung’s role gives him other opportunities, and he has seized them with both hands. In his public addresses, he has repeatedly validated the rule of law.
For example, at the Ceremonial Opening of the Legal Year (Jan 19), in the wake of the convictions of former media magnate Jimmy Lai Chee-ying on national security charges, Cheung noted that foreign commentators had “been critical not only of the prosecutors and verdicts, but also of the courts and the rule of law in Hong Kong generally”. The threats of sanctions against the HKSAR’s judges were “attempts to interfere with judicial independence by means fundamentally at odds with the rule of law”. They were, he added, a “means of subverting justice, and have no place in a civilized society governed by the rule of law”.
These were powerful words, and his fellow judges will have applauded his stance. Cheung acknowledged that the “prevailing political tensions” provided a backdrop, but this did not begin to make the threats to judges any less repugnant. Although he speaks out when he can, there are limits to how much he can do by himself. This is why he needs the wholehearted support of the entire legal profession, barristers and solicitors alike.
It was undoubtedly with this in mind that when Cheung appointed four new senior counsel (“silks”) in 2023 (May 20), he said there was a duty on lawyers, particularly silks, to protect the rule of law from those who wished to undermine it. He called on them “to speak out in defense of Hong Kong’s legal system, including the independence of the Judiciary, and to stand up against any attempt to interfere with the due administration of justice by our judges”.
Cheung’s words did not fall on deaf ears. The chairmen of the Hong Kong Bar Association (Victor Dawes SC, now Jose-Antonio Maurellet SC) and the presidents of the Hong Kong Law Society (Chan Chak-ming, now Roden Tong Man-lung) have since been vocal advocates of judicial independence. Whereas, for example, Dawes said sanctions posed a “systemic risk to Hong Kong’s legal framework” (Aug 28), Maurellet emphasized that the HKBA would “speak up on matters which relate to the rule of law, judicial independence and the independence of the legal profession” (Jan 19). And while Chan described “foreign attempts” to threaten the HKSAR’s judges as offending “every core value embraced by the rule of law” (Jan 22, 2024), Tong praised the judges for their “selfless dedication, undeterred by external pressure or unfounded criticism” (Jan 19).
The Department of Justice also plays a pivotal role in supporting the Judiciary. Among his many pronouncements, the justice secretary, Paul Lam Ting-kwok SC (himself a victim of US sanctions), has been indefatigable in his support for the rule of law. For example, he denounced “illegitimate pressures” on the Judiciary (Jan 19), and his colleagues must be no less emphatic.
These expressions of support for the Judiciary are not only highly welcome but also absolutely necessary, particularly given the criticisms that have followed recent high-profile trials.
In the wake of Lai’s verdicts, for example, the US secretary of state, Marco Rubio, accused the trial judges of being “unjust”, and the British foreign secretary, Yvette Cooper, claimed the proceedings were “politically motivated”. Whereas Amnesty International accused the judges of delivering verdicts that were the “death knell for press freedom”, the Committee to Protect Journalists denounced them for an “egregious decision”. No less sinister was the reaction of Lai’s “international legal team” headed by Caoilfhionn Gallagher KC, who ominously declared there had to be “real consequences” following Lai’s convictions.
These slurs and threats were grist to the mill of everybody in the US Congress who advocates the sanctioning of Hong Kong judges (including those in the Hong Kong Court of Final Appeal), which is why they must be rebutted at every turn.
On May 16, however, when Cheung appointed six new silks, he did not repeat his call for greater support from the legal profession. He confined himself to acknowledging that “Assumption to the rank of Senior Counsel is also a commitment to the future,” including “public service”. He presumably hoped the messages he had so forcefully conveyed in 2023 (May 20) and again this year (Jan 19) would continue to resonate and that repetition was unnecessary.
However, it would be a mistake to assume that because Cheung did not repeat himself, the need for the legal profession to stand resolutely with the Judiciary is any less now than it was when he issued his appeal.
After all, many lawyers have global connections, and they should do their utmost to open eyes and expose fallacies. Although those with higher profiles may have a greater impact, everybody can contribute in their own way. The rule of law requires no less
Indeed, since 2023, the criticisms of the Judiciary have come not only from the usual suspects in the US (including Lai’s former employee Mark Clifford, who heads the Committee for Freedom in Hong Kong Foundation), but also from renegade elements within the Judiciary itself. A notorious example involved Lord (Jonathan) Sumption, a fair-weather friend if ever there was one. Although he had been a British nonpermanent judge on the Hong Kong Court of Final Appeal since 2019, he suddenly resigned in 2024, in a blaze of publicity. After 14 activists who plotted to overthrow the constitutional order were convicted by a three-judge panel of conspiring to commit subversion, Sumption targeted the jurists involved (his own colleagues). He claimed the verdicts were a “major indication of the lengths to which some judges are prepared to go to ensure that Beijing’s campaign against those who have supported democracy succeeds”. This was as foul a calumny of professional judges as could be imagined, and some likened his conduct to that of a political saboteur, insinuated into the system with a view to activation at a time of his handlers’ choosing.
Had Sumption not resigned, Cheung would have been entitled to seek his dismissal, and his conduct (then and subsequently) demonstrated how assaults on the Judiciary can come from the most unexpected quarters. This is why everybody who believes in the rule of law must exercise constant vigilance and never assume that, with the passage of the national security laws, threats to the Judiciary are less concerning. As he must have expected, Sumption’s vile remarks delighted anti-China forces everywhere and have been weaponized by those who want to undermine the HKSAR’s legal system.
Notwithstanding Cheung’s exhortations, many senior lawyers still shy away from openly defending the Judiciary. They sometimes claim it is “none of my business”, or that they are “too busy”, or that they will “let others deal with it”. However, none of these excuses cuts any ice. All lawyers are servants of the law and must prioritize its defense. If they do not, there can be no complaints if foreign governments and international organizations that monitor rule-of-law developments project negative images of the HKSAR.
Therefore, lawyers of all hues, whatever their practice areas or seniority, should take a stand. This can be done at conferences, in writing, and through exchanges with foreign counterparts. They should proclaim the HKSAR’s judicial independence from the rooftops in every conceivable forum and in every possible way. If, as most claim, they cherish Hong Kong, it is the least they can do.
After all, many lawyers have global connections, and they should do their utmost to open eyes and expose fallacies. Although those with higher profiles may have a greater impact, everybody can contribute in their own way. The rule of law requires no less.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
