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Following is the speech by the Chief Secretary for Administration, Mr Rafael Hui, at the Legislative Council Meeting this afternoon (May 3) in moving the motion for resolution under Article 73(7) of the Basic Law and Section 7A of the Hong Kong Court of Final Appeal Ordinance to appoint non-permanent judges to the Court of Final Appeal (English only):
Madam President,
I move that the appointment of Mr Michael McHugh and the Right Honourable Thomas Munro Gault to the Court of Final Appeal as non-permanent judges be endorsed by this Council.
In accordance with the procedures agreed by the House Committee in 2003 on the appointment of judges, the Administration informed the House Committee on January 6 that the Chief Executive had accepted the recommendation of the Judicial Officers Recommendation Commission (JORC) on the two appointments.
On February 16, representatives from the Administration and the Secretary to the JORC attended a meeting of the Subcommittee formed by the House Committee to examine the appointment. The latter endorsed the Subcommittee's report on March 31, 2006.
The Current Appointment Exercise
Article 92 of the Basic Law stipulates that judges of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions. Under section 12(4) of the Hong Kong Court of Final Appeal Ordinance, a person shall be eligible to be appointed as a non-permanent judge from another common law jurisdiction if he is -
(a) a judge or retired judge of a court of unlimited jurisdiction in either civil or criminal matters in another common law jurisdiction;
(b) a person who is ordinarily resident outside Hong Kong; and
(c) a person who has never been a judge of the High Court, a District Judge or a permanent magistrate, in Hong Kong.
The total number of persons holding the office as non-permanent judges at any one time is capped at 30 under section 10 of the Hong Kong Court of Final Appeal Ordinance. At present, there are 17 non-permanent judges comprising eight from Hong Kong and nine from other common law jurisdictions.
When hearing and determining appeals, the Court of Final Appeal is constituted by five judges. They are the Chief Justice, three permanent judges and one non-permanent judge who is either a Hong Kong judge or judge from other common law jurisdictions. The Chief Justice has usually invited non-permanent judges from other common law jurisdictions to sit as the "fifth" judge. The Chief Justice considers that the proposed appointment will give the Court greater flexibility in dealing with the caseload of the Court.
In accordance with Article 88 of the Basic Law, the JORC has recommended to the Chief Executive the appointment of Mr Michael McHugh and the Right Honourable Thomas Munro Gault as non-permanent judges from other common law jurisdictions to the CFA.
The Appointees
Mr Michael McHugh was called to the New South Wales Bar in 1961 and was appointed Queen's Counsel in 1973. He has served as a Judge in Australia for almost 21 years since 1984. He has been a Justice of the High Court from 1989 until his retirement in 2005. He has served as Acting Chief Justice of Australia on a number of occasions during the absence of the Chief Justice. His judicial experience has covered all areas of law.
The Right Honourable Thomas Munro Gault was appointed a judge of the High Court of New Zealand in 1987, the Court of Appeal of New Zealand in 1991, and a member of the Privy Council in 1992, and became President of the Court of Appeal of New Zealand in 2002. He was appointed to the Supreme Court of New Zealand in 2004 upon its establishment, and has just retired from that Court in April this year. He was also appointed a judge of the Supreme Court of Fiji in 2002 and has sat in that Court from time to time. His judicial experience has also covered all areas of law.
The two judges have eminent international standing and reputation, and their appointment will be a great asset to the Court of Final Appeal of Hong Kong.
Acceptance of the Recommendations
The Chief Executive is pleased to have accepted the recommendations of the JORC. Subject to the endorsement of the Legislative Council, we aim to give effect to the appointment in mid 2006 and will report to the Standing Committee of the National People's Congress for the record in compliance with Article 90 of the Basic Law. I now invite Members to endorse the appointment.
Ends/Wednesday, May 3, 2006
Issued at HKT 14:25
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