Mark Clifford
Once celebrated as a triumph of judicial independence, Hong Kong’s Court of Final Appeal (CFA) now stands at the centre of an intensifying debate about the role of foreign judges in a legal system increasingly subordinated to Beijing’s authoritarian agenda.
As the city’s rule of law continues to deteriorate under sweeping national security legislation, the six remaining overseas judges face mounting pressure to resign – or risk lending their reputations to what critics describe as a sophisticated apparatus of political persecution.
LawNews has added to the debate over the propriety of foreign judges serving on Hong Kong’s Court of Final Appeal with Warren Pyke’s comprehensive and thought-provoking article.
While there’s much to appreciate in that essay, his conclusion that it’s understandable for foreign judges to remain on the CFA cannot stand unchallenged.
Confidence systematically eroded
The Court of Final Appeal was designed as the cornerstone of Hong Kong’s “one country, two systems” framework, with its unique composition of five judges, including the chief justice, three permanent judges and one non-permanent judge who may reside overseas. This structure was meant to preserve the common law tradition and maintain international confidence in Hong Kong’s legal independence following the 1997 handover to China.
That confidence has been systematically eroded since June 2020, when Beijing imposed the National Security Law, followed by the even more restrictive Safeguarding National Security Ordinance (so-called Article 23 legislation) in March 2024.
These legislative measures have transformed Hong Kong’s judiciary into what human rights organisations characterise as an instrument of political control, with vaguely defined offences like “sedition,” “external interference,” and “theft of state secrets” granting prosecutors sweeping discretion to criminalise legitimate expression and peaceful dissent.
The statistics paint a damning picture. Amnesty International’s June 2025 analysis found that more than 80% of 255 individuals targeted under national security legislation were engaged in forms of legitimate expression that should not have been criminalised. Bail was denied in almost 90% of cases, forcing those accused to spend an average of 11 months in detention before trial.
The Hong Kong Democracy Council reports that more than 1,900 political prisoners have been convicted and jailed since 2019, with more than 700 estimated to still remain behind bars.
The judicial crisis has prompted a significant exodus. Since March 2024, six overseas judges have resigned from the Court of Final Appeal, or declined to renew their tenure, including prominent British lords Jonathan Sumption and Lawrence Collins, former Canadian Chief Justice Beverley McLachlin and former Australian Chief Justice Robert French.
Their departures, with one judge citing the “impossible political environment created by China” and concerns about complicity in political prosecutions, represent a powerful indictment of Hong Kong’s judicial trajectory.
Yet six foreign judges continue to serve: James Allsop and William Gummow of Australia, Patrick Keane of Australia, William Young of New Zealand and British lords Leonard Hoffmann and David Neuberger. Their continued participation raises profound questions about professional responsibility, ethical obligations and the extent to which respected common law jurists should associate themselves with a system that systematically suppresses fundamental freedoms.
Democratic aspirations
Defenders of the judges who have chosen to remain too easily gloss over the brutality of what is happening in Hong Kong. For instance, we are told in Warren Pyke’s account that defendants in the case of the Hong Kong 47 were “accused of trying to overthrow the government by running an unofficial primary to pick opposition candidates for local elections”.
Running an election primary is not an attempt to overthrow the government and the prosecution provided no evidence that the defendants wanted to do so.
The defendants wanted to use the parliamentary system to achieve their goal of democracy. Specifically, they wanted to force the chief executive, effectively the mayor, to step down, in the hope that this would force a serious discussion about how to move forward with implementing the promise in the Basic Law that Hong Kong would achieve universal suffrage. For exercising their right to free speech guaranteed in the Basic Law, the defendants got four to 10 years in jail.
There is also a temptation to argue that because Hong Kong did not have full democracy during the British colonial period, we shouldn’t worry too much about its absence now.
Britain certainly was slow to recognise the democratic aspirations of Hong Kong’s people – in large part because of pressure from Beijing.
Chinese Premier Zhou Enlai, as early as the mid-1950s, warned that any move to open up political participation by Hong Kong’s people would be met with a strong Chinese response. At a time when the colony lived in fear of a possible Chinese invasion, this wasn’t a threat to be shrugged off. Similar warnings were conveyed all the way until the handover.
China has consistently fought democracy in Hong Kong since shortly after the People’s Republic was founded in 1949.
China made concrete promises that the people of Hong Kong would enjoy enhanced freedoms after 1997. These promises were made to Britain, in the form of the 1984 Sino-British declaration, an international treaty, and to the people of Hong Kong in the form of the 1990 Basic Law, a sort of mini-constitution that governs the territory.
Those documents promised that a wide variety of civil and political freedoms would remain in place for 50 years following the handover.
Hong Kong people merely asked that those promises be upheld. Two million Hong Kongers came out, repeatedly, in massive demonstrations in 2019, the culmination of two decades of increasing frustration at China’s betrayed promises. The government never even offered to negotiate, let alone hold out any hope of reform.
The pre-1997 promise of “Hong Kong people ruling Hong Kong” – that after a century-and-half of colonialism, Hong Kongers would be “masters in their own home” – were revealed as a sham.
The demonstrations were followed in November 2019 by district council elections. The pro-democracy camp won an overwhelming victory. Rather than taking the elections as a rebuke and changing course, Beijing doubled down.
The National Security Law was imposed seven months later. Elections for the Legislative Council were postponed until rules could be rewritten so that only “patriots” – communist party supporters – could stand for election. Top opposition legislators were kicked out, some arrested. The district council itself was disbanded, with many of its members hounded into exile.
Judges lend legitimacy
The foreign judges who still sit on the CFA are not merely passive observers. They have participated directly in politically sensitive rulings that have advanced Beijing’s agenda. In January 2024, Australian judge Anthony Gleeson took part in the court’s unanimous decision to quash human rights barrister Chow Hang-tung’s acquittal, reinstating her conviction for inciting an unauthorized assembly commemorating the 1989 Tiananmen crackdown.
Perhaps most controversially, Lord Neuberger sat on the panel that unanimously dismissed media tycoon Jimmy Lai’s appeal in August 2024, upholding convictions for participating in an unauthorised assembly. The ruling drew sharp international criticism, with observers accusing Neuberger of lending legitimacy to what they described as a show trial against one of Hong Kong’s most prominent democracy advocates.
In April 2025, Australian judge James Allsop joined a three-two majority decision reinstating a conviction against former lawmaker Lam Cheuk-ting in a case related to police misconduct during attacks on pro-democracy protesters.
Foreign judges’ participation in national security trials is prohibited. All the political trials that they’ve adjudicated lie outside the 2020 National Security Law and the 2024 Safeguarding National Security Ordinance – cases involving issues like public assembly and rioting. The argument that foreign judges could influence Hong Kong 47 appeals doesn’t square with reality. However, their presence on the Hong Kong bench does support and validate the broader system administering these prosecutions.
Implicit in the argument that foreign judges could have an ameliorating influence is the belief that the Court of Final Appeal can and may overturn national security verdicts and sentences, but the National Security Law has been in place for five years and the CFA hasn’t overturned a single case.
It generally has refused to even hear NSL appeals on the merits; the national security apparatus sits above the courts and is not subject to the sorts of legal checks that exist in New Zealand or most other common law jurisdictions.
The treatment of Jimmy Lai’s legal representation reveals how completely the court has subordinated itself to executive authority on national security matters.
Initially, in 2021, the court granted ad hoc admission to British barrister Tim Owen KC to represent Lai, suggesting a commitment to fundamental legal principles. Yet by March 2025, the court rejected Lai’s appeal of the decision barring Owen, citing immunity from legal challenge due to the national security committee’s blocking of Owen’s work permit.
Simply put, the Court of Final Appeal is anything but – its decisions can be overruled on a whim from the National People’s Congress or the local Committee for Safeguarding National Security.
Stark choice for judges
This reversal represents an abandonment of constitutional rights and Hong Kong’s treaty obligations under the International Covenant on Civil and Political Rights, which guarantees freedoms of expression, assembly, association and the right to a fair trial.
As Lord Sumption observed a year after his resignation: “It’s pretty well unheard of for somebody who is entitled to represent a client not to receive a work permit. I think it tells us quite a lot about the view of the rule of law taken by the executive.”
Democracy activists, including legal scholar Benny Tai and former student leader Joshua Wong, had been held in custody since their February 2021 arrests, enduring nearly four years of pre-trial detention before conviction. The court described routine democratic organising as a conspiracy to overthrow the government, a characterisation that would be absurd were its consequences not so devastating.
This creates particularly acute problems for judges from countries hosting democracy activists who have had bounties placed on them by Hong Kong.
Australian judges came under scrutiny when Foreign Minister Penny Wong complained to her Chinese counterpart about the targeting of Australian residents Ted Hui and Kevin Yam, both subject to bounties and intimidation campaigns by the Hong Kong government. How can Australian judges serve a court system that wages harassment campaigns against their own country’s residents?
The Council of Chief Justices of Australia and New Zealand should amend judicial guidance to prohibit serving in territories where the legal system has been weaponised against democracy advocates. Any citizens who take positions on Hong Kong courts should face restrictions on serving in public positions in their home countries due to conflicts of interest, for their presence on the Hong Kong bench requires them to swear an oath of allegiance to the People’s Republic of China.
The foreign judges remaining on Hong Kong’s Court of Final Appeal face a stark choice. They can continue to lend their distinguished careers and the prestige of the common law tradition to a system that imprisons people for peaceful political expression, or they can follow their colleagues who have already concluded that participation has become untenable.
Their continued service does not preserve judicial independence – that independence has already been extinguished.
Instead, it provides Beijing with exactly what it seeks: the appearance of legitimacy for a legal system that has abandoned the fundamental principles these judges spent their careers upholding. The time for graceful exits is coming to an end. What remains is only the growing stain on reputations built over decades of service to the rule of law.
The foreign judges on Hong Kong’s Court of Final Appeal should resign not because they lack integrity, but precisely because they possess it.
Mark L Clifford is the president of the Committee for Freedom in Hong Kong Foundation. He holds a PhD in Hong Kong history and is the author of The Troublemaker: How Jimmy Lai Became a Billionaire, Hong Kong’s Greatest Dissident, and China’s Fiercest Critic.
0 Comments