Their nationality has no bearing on the way they decide a case. They all take the same oath, and are required to make rulings freely and fairly in accordance with established legal principles
The presence of foreign judges in Hong Kong’s courts may, to some, seem an outdated remnant of the city’s colonial past, 20 years after Britain handed it back to China.
These non-Chinese judges and magistrates have, over the last year, come under attack from critics unhappy with their judgments in politically sensitive cases. They have been accused of being too liberal, not understanding Hong Kong, and giving biased rulings.
But the critics misunderstand both the nature of judicial decision-making and the role of foreign judges in Hong Kong. Their presence is provided for by law and the city’s rule of law would be much weaker without them.
The latest controversy concerns the recent jailing of senior police officer Frankly Chu King-wai for three months for striking a bystander with his baton during the pro-democracy Occupy protests in 2014.
Supporters of the police officer demonstrated outside the court. One woman used a megaphone to shout: “Dismiss all foreign judges, we want Chinese ones.”
The magistrate, Bina Chainrai, was born in India in 1957. But she studied law at the University of Hong Kong, while in her 20s, passing the same law exam as local students. She has been a magistrate in Hong Kong for 27 years. Any suggestion that she somehow fails to understand the city simply because she was born elsewhere is ridiculous.
Similar considerations apply to David Dufton, a British judge in the city’s middle-tier District Court who jailed seven police officers for beating an Occupy activist last February. The judge was subjected to abuse and there was even a call on social media for him to be beaten up. Dufton was admitted as a lawyer in the city in 1982. He became a magistrate in 1994 and a judge in 2012. He, too, can be considered a local.
The nationality of a judge has no bearing on the way he or she decides a case. All Hong Kong’s judges take the same oath. They are required to decide cases freely and fairly in accordance with established legal principles. This will, no doubt, be evident when the appeals of all the police officers concerned are heard.
Judges, whether foreign or local, have increasingly come under pressure in recent years as a result of sharp divisions in Hong Kong society and politically sensitive cases making their way through the courts.
