立法會議員張宇人「根據《基本法》第七十三條第(七)項及《香港終審法院條例》(第 484 章) 第 7A 條動議，有關委任法官的擬議決議案」發言 (2019年12月4日)

President, the Liberal Party welcomes the appointment of the Right Honourable Lord Jonathan SUMPTION ("Lord SUMPTION") as non-permanent Judge of the Court of Final Appeal ("CFA") of Hong Kong. We welcome also the appointment of the Honourable Mr Justice Jeremy POON as the Chief Judge of the High Court of Hong Kong.

In May last year, the appointments of Lady HALE and Madam Justice MCLACHLIN to become non-permanent Judges of CFA provoked exceptional flare in Hong Kong. This year, in the midst of local political turmoil, the appointment of Lord SUMPTION has received scanty attention from the press and the general public. President, calmness amidst the storm is much welcome, but due respect must be paid to Lord SUMPTION for accepting the appointment at a time when Hong Kong is in deep trouble.

Lord SUMPTION is dubbed "the Brain of Britain" by the British media for good reasons. He was educated at Eton College and Magdalen College, Oxford. He studied History and graduated with a first-class honour in 1970. He was then elected a fellow of Magdalen College, teaching and writing books on medieval history. In 1975, he left the academia and was called to the Bar at the age of 27, and established a very successful legal career ever since. In 1986, at the age of 38, he was appointed Queen's Counsel. In 2011, after 36 years' successful practice at the Bar, he was appointed directly to become a Justice of the Supreme Court of the United Kingdom (without previously serving as a full-time Judge). To everybody's amazement, and despite his busy practice at the Bar and on the Bench, within 25 years between 1990 and 2015, Lord SUMPTION had somehow managed to publish four volumes of narrative history on the Hundred Years' War between England and France. In 2017, he retired from the Bench and became a visiting fellow of All Souls College, Oxford, to complete his monumental history on the Hundred Years' War. At the same time, he reinvented himself to become a columnist, commenting on British political affairs.

Against this background, he accepted invitation to be a non-permanent judge of Hong Kong's CFA.

Perhaps because of his multifaceted training and experience, Lord SUMPTION is able to look at legal and constitutional issues with a historian's acute sense of depth and perspectives. Out of this awareness, he respects democracy and parliamentary supremacy. In dealing with "rights", he lays emphasis on democratic deliberation through political debates, not litigations in court. In an age of judicial activism, he urges judicial restraint and cautiousness.

In his recently published book Trials of the State: Law and the Decline of Politics, he writes succinctly, "One can believe in rights without wanting to remove them from the democratic arena by placing them under the exclusive jurisdiction of a priestly caste of judges."

In his Lecture, The Limits of Law, which was given in 2013, he went to further depth and said, "… I can imagine why legislative decisions about rights are more likely to be correct than judicial ones, even if what one is looking for is the intellectually or morally ideal outcome. The reason, as it seems to me, is that rights can never be wholly unqualified. Their existence and extent must be constrained to a greater or lesser extent by the rights of others, as well as by some legitimate collective interests. In deciding where the balance lies between individual rights and collective interests, the relevant considerations will often be far wider than anything that a court can comprehend simply on the basis of argument between the parties before it."

As legislators, we could not agree more with Lord SUMPTION and warmly welcome his appointment accordingly.

Last year, we had Mr Justice Andrew CHEUNG promoted to become a Permanent Judge of CFA. This year, we have Mr Justice Jeremy POON to be appointed the Chief Judge of the High Court. Both Mr Justice CHEUNG and Mr Justice POON are locally educated and trained as barristers. Mr CHEUNG embarked on his judicial career starting from the District Court, while Mr POON began his judicial career as a Magistrate. They are all like us, sons of Hong Kong, able to speak fluent Cantonese, know our slangs, eat the food we eat, laugh at all the jokes we say, and feel the same pains as we do. They are all good examples of Hong Kong's localization effort. On behalf of the Liberal Party and my constituents, I express once again our warmest welcome to Mr Justice POON's appointment.

President, when I look at CFA's official website, I am astonished to find out that there are now only four local Judges listed on CFA's panel of non-permanent Judges. With confirmation of Lord SUMPTION's appointment today, there are in total 15 foreign non-permanent Judges listed on the panel.

Feeling curious, I asked my assistant to conduct a simple research. From CFA's published judgments in the years 2017, 2018 and 2019, we gather that:

Firstly, in all civil and criminal appeals that required a panel of five sitting Judges, all involved one foreign non-permanent Judge sitting in the hearing;

Secondly, in all civil and criminal appeals that required a panel of five sitting Judges, local non-permanent Judges sat on the Bench only when the quorum required two non-permanent Judges;

Thirdly, local non-permanent Judges had been extensively involved in miscellaneous civil and criminal proceedings in CFA. These are often procedural hearings prior to full hearings.

One might sincerely hope that local non-permanent Judges sit more frequently in CFA's appeal hearings. In fact, in the year 2017, out of 8 civil appeals heard by CFA, 5 appeals involved sitting of local non-permanent Judges, and out of 7 criminal appeals, 2 appeals. In the year 2018, out of 11 civil appeals heard, 6 appeals involved sitting of local non-permanent Judges, and out of 15 criminal appeals, 2 appeals.

Judging from the dwindled list of local non-permanent Judges, the present situation is perhaps understandable and unavoidable. From a human resources point of view, outsourcing non-permanent Judges from other common law jurisdictions is presumably the most practical way to go in the short run. Ideally, CFA should have a strong list of both local and foreign non-permanent Judges for the Chief Justice to choose from. We have already got a world-class list of foreign non-permanent Judges. It is high time that the Administration and the Judiciary started to replenish the list of local non-permanent Judges now.

President, with this reminder, I endorse the two appointments.