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September 30, 2024

The Witness: Fifth overseas non-permanent judge of the CFA, Nicholas Phillips, leaves this year; Judiciary cites personal reasons

2024.09.30

Another non-permanent foreign judge from the Court of Final Appeal has chosen not to renew his term. Media reports on Monday (30th) state that British judge Nicholas Phillips has completed his term today and will not continue. Phillips replied to Cable News that his decision not to extend his three-year term is due to personal reasons, not political ones.

The judiciary responded that Phillips recently indicated he did not wish to continue due to personal reasons, and thanked him for his substantial contributions and support for the rule of law in Hong Kong. It also stated that “the recent changes in court personnel will not affect the operation of the Court of Final Appeal.” Including Phillips, a total of five foreign judges have chosen not to renew their terms or have resigned early this year, leaving six remaining overseas judges.

The Judiciary: Recently Indicated a Desire Not to Renew Due to Personal Reasons

The judiciary responded that Nicholas Phillips has recently indicated, due to personal reasons, his desire not to renew his appointment after his current term expires on September 30, 2024. He has completed four terms, totaling twelve years. The judiciary thanked Phillips for his substantial contributions to the work of the Court of Final Appeal over the years, as well as for his support for the rule of law in Hong Kong.

The judiciary further stated that despite several non-permanent judges leaving in recent years, the vast majority of incumbent and departing non-permanent judges have publicly reiterated their continued confidence in Hong Kong’s independent judicial system and the Hong Kong courts’ commitment to upholding the rule of law.

After Lord Phillips’ term expires, the Court of Final Appeal will have 10 non-permanent judges, including 4 non-permanent Hong Kong judges and 6 non-permanent common law judges from the UK and Australia. The number of appellate cases in the Court has remained stable, and recent changes in court personnel will not affect the operation of the Court of Final Appeal.

The judiciary will continue to seek suitable candidates, both locally and from overseas, for appointment as non-permanent judges. Should suitable candidates be found, the judiciary will handle the judicial appointments according to the established mechanisms under the Basic Law and the Hong Kong Court of Final Appeal Ordinance.

Renewed in 2021, Term Expires Today

According to records, Nicholas Phillips, now 86 years old, retired as the President of the Supreme Court of the United Kingdom at the end of September 2012, and took up the position of a non-permanent judge at the Hong Kong Court of Final Appeal the following month. The then Chief Executive Donald Tsang responded to Phillips’ appointment in a press release, stating, “His stature is revered, and he is deeply respected… I am confident that he will make significant contributions to the Court of Final Appeal when he assumes office in October 2012.”

Phillips was subsequently renewed as an overseas judge in 2015, 2018, and 2021. According to the Hong Kong Court of Final Appeal Ordinance, the term of a non-permanent judge is three years, and the Chief Executive may extend the term one or more times, each for an additional three years, based on the recommendation of the Chief Justice. Phillips’ last renewal was on October 1, 2021, meaning today marks the expiration of his term.

In July 2023, Phillips was awarded the Gold Bauhinia Star. The government noted that during his ten years with the Court of Final Appeal, he “served with distinction and demonstrated outstanding performance,” describing him as “a staunch supporter of the rule of law in Hong Kong and a good friend to Hong Kong.”

Five foreign judges have left the CFA since the beginning of the year; now only six remain

Since the beginning of the year, the Court of Final Appeal has lost five overseas judges, with the remaining six still in position. Among those who did not seek reappointment are the Chief Justice of Australia, Anthony Gleeson, and the former Chief Justice of Canada, Beverley McLachlin; the early resignations include two former UK Supreme Court Justices, Lawrence Collins and Robert Jonathan Sumption.

Jonathan Sumption, in particular, wrote an article in June 2024 stating that “the rule of law in Hong Kong is in grave danger,” and in a BBC interview, he mentioned that the ruling in the case of 47 individuals was the “final straw” that led to his resignation, which prompted criticism from both the Chief Executive and the Secretary for Justice (see report).

After Nicholas Phillips steps down, Hong Kong will have six remaining overseas non-permanent judges, including two from the UK, Leonard Hoffmann and David Neuberger, and four from Australia: William Montague Charles Gummow, Robert French, Patrick Keane, and James Allsop. Since Beverley McLachlin’s term ended in late July this year, there are currently no Canadian judges in Hong Kong (see other reports).

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