Fifth foreign judge to quit Hong Kong’s final appeal court

Another foreign judge is departing Hong Kong’s Court of Final Appeal, the fifth to do so this year.

Briton Nicholas Phillips, 86, who joined the court in 2012, will not have his term of appointment extended upon its expiry on September 30, 2024, due to personal reasons, having completed by the end of this month four terms of office totaling 12 years, said the Judiciary.

Commenting on Phillips' departure, the Judiciary praised his “valuable contributions” and support of the rule of law.

It also noted that despite the departure of some Non-Permanent Judges in recent years, an overwhelming majority of the serving and departed Non-Permanent Judge have publicly reiterated their continued confidence in judicial independence in Hong Kong and the commitment of the Hong Kong courts towards upholding the rule of law.

The fifth judges who announced their departure earlier this year include UK judges Lawrence Collins and Jonathan Sumption, Canadian judge Beverley McLachlin, and Australian judge Anthony Murray Gleeson.

The British judges both cited politics over their departure, with Sumption saying Hong Kong is turning into a "totalitarian" regime and the rule of law is "in grave danger."

McLachlin, meanwhile, said the reason behind her departure was to allow her to spend more time with family, also noting that she continued to have confidence in the members of the final appeal court, their independence, and their determination to uphold the rule of law.

Former director of public prosecutions Grenville Cross said Phillips has served the city for 12 years and made an important contribution to the CFA and its jurisprudence. 

Noting Phillips is now aged 86, Cross said Phillips'' desire not to seek another 3-year term at such an advanced age is "wholly understandable."

"This is clearly not a case of selling out HK, as Lord Sumption did earlier this year, but of deciding that nobody can go on forever," Cross added. "Lord Phillips has previously said he was entirely satisfied with the independence and integrity of the CFA, and his departure is not another ill-judged attempt to destabilize the judiciary."

He stated that as there are only six overseas NPJs left in the CFA, the Judiciary will need to step up the search for replacements and the one might need not come from the usual recruitment grounds of Australia, Canada, the U.K. and New Zealand, but could come instead from places like Malaysia, Singapore, Ireland, India and South Africa. 

"It is important that reliable individuals are chosen , who can be trusted to avoid grandstanding and to serve HK faithfully," Cross added.

He further noted that of the five judges to have resigned as overseas NPJs for political reasons, four came from the U.K. and that showed with the notable exceptions of Lords Hoffmann and Neuberger, who both stood up for Hong Kong despite political pressures, it is unwise to place too much reliance in the U.K. in future and is probably safer to consider other jurisdictions.

(Updated at 2.52 pm)