Legislative Council meeting Bills 2nd Reading – Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019

Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019

MR CHAN CHUN-YING (in Cantonese):

President, evidently, the purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 (“the Bill”) is to provide for the extension of the retirement ages for certain Judges and Judicial Officers (“JJOs”) and to introduce a flexible arrangement for early retirement. The former should help solve the problem of insufficient manpower while the latter should address the heavy workload of Judicial Officers as some of them may not be able to cope with the workload.

Concerning judicial manpower, according to the Hong Kong Judiciary Annual Report 2018 (“the Annual Report”), the Judiciary continued to face heavy work pressures at all levels of court. While many performance targets were achieved, a number of targets at various levels of courts were not met. The Annual Report has even directly stated that the shortfall in judicial manpower is one of the major factors affecting the court waiting times. On the issue of manpower shortage, the Report on Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service further analysed that retirement is the main source of wastage among JJOs and the retirement situation may pose challenges to judicial manpower.

First of all, I would like to talk about the proposed amendments. Against the background mentioned above, the Judiciary proposed that the Government should amend the existing legislation. First, extend the statutory retirement age for Judges of the Court of Final Appeal (“CFA”) (excluding non-permanent CFA Judges) and the High Court from 65 to 70, and that for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65. Next, introduce a new statutory discretionary early retirement age of 60 for Judges of CFA and the High Court. Third, introduce a statutory early retirement age of 60 for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level. Lastly, provide for discretionary extension of term of office for Judges of the District Court.

In the course of deliberation of the Bills Committee, many members were concerned that the two-tier retirement age system would be retained, i.e. Judges at the Court of First Instance (“CFI”) level and above will have a higher statutory retirement age at 70 while JJOs below the CFI level will have a lower statutory retirement age at 65. In response, the Judiciary has explained that, in light of the small pool of suitable candidates for appointment as Judges at the CFI level and above and the persistent difficulties in recruiting CFI Judges, there are differences in the employment conditions to deal with the issue.

President, it can be foreseen that the workload of the Judiciary will substantially increase and this amendment is a fast-track measure to make up for the shortage of JJOs. However, it seems that this specific medicine will not be effective for a long time and we can foresee that the manpower problem of the Judiciary will become serious again in the near future. The reason is that the social incident which has lasted for five months from June to October this year has resulted in the arrest of more than 3 300 people. Mr Grenville CROSS, former Director of Public Prosecutions, opines trials related to the protest cases should be conducted as soon as possible. If the number of protesters being prosecuted continues to increase, it may be necessary to increase the number of magistrates and judges to ensure that these cases can be handled within the effective time limit. In this way, we can maintain judicial credibility while the suspects will be more fairly treated.

The large number of prosecution cases arising from social incident is only the tip of the iceberg of judicial workload. A considerable number of cases under the current system of non-refoulement claims also put a very heavy workload on CFI, Court of Appeal (“CA”) and CFA.

President, in recent years, there has been an influx of a large number of people into Hong Kong and they have lodged torture claims or non-refoulement claims. The handling of such claims normally involves the following procedures: The claims will be screened by the Immigration Department and if the claimants are dissatisfied with the results, they can file administrative appeals with the Torture Claims Appeal Board (“TCAB”). Once an appeal has been rejected by TCAB, the claimant will normally apply to CFI for a judicial review permit and seek relief. If the application is rejected, the claimant can appeal to CA, and also appeal to CFA later on.

Information shows that the application for judicial review relating to non-refoulement claims has been increasing since 2017, from 103 cases in 2015 to 1 006 cases in 2017. In 2018 alone, there were nearly 3 000 judicial review applications filed with CFI. As of June this year, about 4 900 appeals were awaiting processing by TCAB. Assuming that most of the claimants will apply for judicial review, this will put an unimaginable burden on the courts. The legislative amendments proposed earlier by the Security Bureau intended to prevent abuse of judicial review by claimants. I hope that the relevant bill will be introduced into the Legislative Council for deliberation as soon as possible, so that the existing legislation can be amended appropriately to relieve the unnecessary pressure on the courts.

President, the manpower problem of the Judiciary is exacerbating and it seems that extending the retirement ages for Judges through the Bill is not a long-term solution. The extension will only increase the gap in seniority of Judges. In fact, the Judiciary can alleviate the existing problems in two ways. First, it has to review whether there is room for optimization of work processes, i.e. whether Judges should perform other administrative tasks in addition to hearing cases. If that is the case, can the Judiciary consider recruiting additional administrative staff to deal with the administrative tasks of the courts, allowing Judges to be more focused on hearing case, thereby reducing their workload?

Second, it has to explore ways to attract Judges, such as offer better remuneration and benefits. According to sections 9(1A) and 9(2A) of the High Court Ordinance (Cap. 4), a person shall be eligible to be appointed to be a Judge of the High Court if he is qualified to practise as a solicitor of the High Court and has for at least 10 years practised as such. However, at present, senior barristers have mainly been recruited as Judges. Therefore, the Administration may consider training the existing senior lawyers to serve as Recorders or Masters of the High Court so that more legal professionals with different expertise can serve the public in the Judiciary.

President, the tense social atmosphere in recent months may create another obstacle to recruiting talents. I would like to quote the remarks made by Chief Justice of CFA Geoffrey MA, who has announced his retirement next year, at the Ceremonial Opening of the Legal Year 2019 and examine the butterfly effect of social incidents in recent years on the legal profession. Chief Justice Geoffrey MA stated that “This past year has seen courts at every level adjudicate on controversial cases. By “controversial” I am referring to those cases which emanate from controversial political or social events and over which members of the community have at times vastly different views. Following some judgments in the type of controversial case, there have been criticisms levelled against decisions of the courts and sometimes even personally against Judges”.

The Hong Kong CFA is the highest court of appeal of the Hong Kong Special Administrative Region Government and it handles appeals and matters related to the civil and criminal judgments of the High Court. Mr Grenville CROSS, former Director of Public Prosecutions, stressed a few days ago at an exclusive interview by Sing Tao Daily that there were distinguished scholars from all over the world in the Hong Kong CFA, including Baroness HALE of Richmond, the President of the Supreme Court of the United Kingdom, and two former Presidents of the Supreme Court, Lord NEUBERGER and Lord PHILLIPS, whose judgments are highly respected locally and internationally.

President, under this social atmosphere, it goes without saying that it is a challenge to attract elites in the legal profession to join the courts at all levels, become members of the Bench and even become Judges of the Hong Kong CFA. However, I agree with Chief Justice Geoffrey MA that the functions and duties of the courts are not to make decisions on political or social issues. When a court decides a case, it should consider the relevant disputes in point of law, i.e. the outcomes of any legal disputes handled before the court depend on the law itself, even if the cases may have different political, social or economic effects; yet, the court only needs to consider legal issues.

According to Article 104 of the Basic Law, every judge must take the Judicial Oath which is a solemn and sincere undertaking. Every judge swears to uphold the Basic Law and to serve the Hong Kong Special Administrative Region and administer justice without fear or favour, self‑interest or deceit. When our society is facing difficulties, I hope that every member of the legal profession will dedicate to the work and that more legal professionals will become members of the Bench to manifest justice.

President, when compared with other jurisdictions in the world, judges in Hong Kong have a heavier workload and they deal with extremely complicated cases. Many people choose to resort to litigation in Hong Kong courts precisely because they have confidence in the judicial system of Hong Kong. As compared with other common law jurisdictions, the retirement age of judges in Hong Kong is indeed too low and may not be in line with the actual situation. It is quite certain that extending the retirement age should be conducive to recruiting and retaining experienced judges; thus, I support the Bill.

Yet, there is always a battle for talents in all sectors. I firmly believe that the basic conditions for retaining talents include: a stable social environment; a safe city; members of public can go anywhere they like on weekends and can express their views freely; they will not suddenly be impeded by blocked roads when they drive out; and they will not have to go home early for safety concern.

President, I so submit.