MR YIU SI-WING (in Cantonese): President, I speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019. At present, the whole world is facing the problems of an ageing population and a shrinking workforce, and coupled with better medical standards, people are in good health and life expectancy is increasing, so it is a general trend for various industries and sectors to extend the retirement age. Many European countries with generous social welfare have extended the retirement age. For example, the average retirement age in Denmark has been extended from 62 to 65, and it is also planned to increase the retirement age to 68 in 2030. The United Kingdom, Germany, France, Belgium, the Netherlands and Ireland have plans to extend the retirement age to about 67 around 2030. The Hong Kong Government has followed suit. From 1 June 2015, the retirement age of new recruits are subject to the new retirement age of 65 in respect of the civilian grades and 60 in respect of the disciplined services grades. The proposal on extension of retirement age of Judicial Officers extends the retirement age of Judicial Officers at different levels by five years, in line with the previous government policy on extending the retirement age.

 

As pointed out by Mr Geoffrey MA, Chief Justice of the Court of Final Appeal ("CFA"), at the Ceremonial Opening of the Legal Year 2019, it is vital that the quality of judges remains high and the maintenance of high standards is key to the proper administration of justice. In comparison with other common law jurisdictions, there is room in Hong Kong to extend the retirement age of judges to meet the actual needs. Judges in Hong Kong are generally selected from legal practitioners and promoted according to seniority and experience. Retaining senior judges in the judicial system can ensure that the overall quality of judges can be sustained and that the trial results are fairer. It can be affirmed that extending the retirement age is very conducive to the recruitment of judges and retention of senior judges with rich experience.

 

President, judges are also human beings. Although they make judgments based on legal principles and objective facts, they will inevitably make mistakes. Even though judges in Hong Kong have gone through stringent recruitment and appointment procedures, it is not difficult for us to see that the quality or experience of some judges may be inadequate. For example, a case on jaywalking by a pedestrian has recently been tried at a Magistrates' Court. Starting from January last year, there have been 91 trials within 20 months. The Magistrates' Court almost handles traffic cases every day and the trial of most cases can be completed within half a day or one day. However, three applications for judicial review have been derived from this case; the expert witnesses have been cross-examined at length; and the Magistrate has argued with the defence lawyers about various issues. As a result, the trial of the case has to be deferred time and again. Finally, a High Court Judge intervened, which was rare, and ordered the presiding Magistrate to deal with the case as soon as possible. The legal professionals are perplexed by the entire trial proceedings and they questioned whether the Magistrate has strictly controlled the progress of the case. Hence, we can see from this case that it is inevitable that the courts will sometimes handle cases improperly.

 

Under the common law system practised by Hong Kong, the doctrine of judicial precedent and the appeal system provide double safeguards to minimize the unfairness caused by the mistakes of judges. Judges must refer to the judgments of similar cases in the past to ensure that their judgments are made according to the same principles. If a party is dissatisfied, he may appeal against the judgment, and the case will be tried by a senior judge at a higher level court; this can avoid mistakes made in the judgment by the previous court. The judgment made by a senior judge, his written judgment, his analysis of the case and his interpretation of the points of law will provide important and valuable guidance for the judgment of future cases, and also serve as valuable reference materials for judges with less experience. Extending the retirement age of judges, especially senior judges, has a vital role in maintaining the quality of judicial officers in Hong Kong.

 

President, the Basic Law enacted by the National People's Congress stipulates that "one country, two systems" shall be implemented in Hong Kong. Most importantly, Hong Kong enjoys independent judicial power including that of final adjudication. The premise of these two powers is that, according to Article 104 of the Basic Law, every judge must, when assuming office, swear to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China. According to the Judicial Oath they take, they swear to serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, and administer justice without fear or favour, self‑interest or deceit. Articles 2, 19 and 85 of the Basic Law also clearly specify that the courts of the Hong Kong shall exercise judicial power independently, free from any interference.

 

The Basic Law stipulates that Hong Kong enjoys judicial independence without external interference or influence and a judge also enjoys a large measure of protection against civil liability in respect of acts performed while sitting in that capacity. The purpose is to embody an independent judiciary as an important cornerstone of the rule of law. Therefore, judges must make judgments based on the law and the facts, and they must also defend the Basic Law, maintain political neutrality, honesty and integrity. We are now at a very critical time, the disturbance arising from the proposed legislative amendment has lasted few months, and the community is divided by political disputes, the Judiciary is thus facing enormous challenges. Any unsuitable declaration of stance will have a great impact on the judicial system; thus, I hope that the Government and the Judiciary will note the following two points.

 

First, judges must remain neutral on political or social concerns, and they should not be influenced by personal political orientations. If judges publicly express their views on issues of social concern, this will undermine judicial independence in Hong Kong. As reported, in a joint public petition against the amendment of the Fugitive Offenders Ordinance, one of the signatories is a Judge of the Court of First Instance of the High Court. Although the Judge said that he signed the petition in his own capacity, Chief Justice Geoffrey MA advised that he should avoid similar incidents in future, and the Judge later accepted Geoffrey MA's advice. According to Geoffrey MA, for the sake of judicial independence and fairness, judges should avoid commenting on political and other controversial issues. Therefore, judges should avoid expressing their views on the legal issues that the courts may have to deal with.

 

Concerning this disturbance, the public have different opinions and political stances, and as judges are also human beings, they will certainly have their own ideas. However, judges must pay attention to their status and duties when performing their duties so as to make fair judgments. If judges openly declare their stance, members of the public will query their impartiality, putting judicial independence in Hong Kong in a hazardous position. It can be seen that the role models and advice of senior judges serve as important inspiration for judges with less experience.

 

Second, in a number of riots and disturbances, while the nature of offences of the arrestees is similar, the judgments are different. This has aroused public concern about the impartial judgments of judges, thereby undermining the rule of law. For example, the Shatin Magistrates' Court recently sentenced a man on one count of desecrating the national flag to 200 hours of community service. Not long ago, a mainland man visiting Hong Kong on a two-way permit was sentenced to four weeks' imprisonment for criminal damage as he attempted to scrawl the words "China will prevail" with paint on the outer walls of the Consulate General of the United States. Many members of the public or netizens have compared the judgments of these two cases and they think that desecrating the national flag

 

(Mr Dennis KWOK indicated his wish to raise a point of order)

 

PRESIDENT (in Cantonese): Mr Dennis KWOK, what is your point of order?

 

MR DENNIS KWOK (in Cantonese): President, I would like to raise two points of order. First, the subject of the current debate is extending the retirement age of Judges but I have noticed that some Members have completely digressed from the subject. Second, some of the above cases are now at the appeal stage, so Members should not talk about cases that are still being heard in court.

 

PRESIDENT (in Cantonese): On the first point, I ask Mr YIU to return to the subject of this debate, i.e. extending the retirement age of Judicial Officers. Mr KWOK said that the case mentioned by the Member is still at the appeal stage but as far as I know, an appeal has not yet been filed for the relevant case. However, I remind Members to be careful when referring to the cases being heard in court.

 

Mr YIU, please continue with your speech.

 

MR YIU SI-WING (in Cantonese): President, I think …

 

(Mr Kenneth LEUNG indicated his wish to raise a point of order)

 

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, what is your point of order?

 

MR KENNETH LEUNG (in Cantonese): President, Mr YIU Si-wing has just mentioned a traffic case that will be re-examined by the Magistrates' Court. I would like to ask him to clarify whether the case has been concluded; if not, may I ask him to withdraw his remarks on the case.

 

PRESIDENT (in Cantonese): Mr YIU, do you wish to elucidate?

 

MR YIU SI-WING (in Cantonese): President, I know that the victim and the defendant are discussing the compensation arrangement in the case. I do not know whether it is necessary to withdraw all the remarks on the case.

 

MR KENNETH LEUNG (in Cantonese): The case is still in the judicial process, so I hope that Members will not discuss the case in the Legislative Council. I would also like to ask Mr YIU Si-wing if he will withdraw his remarks on the case.

 

PRESIDENT (in Cantonese): I remind Members that they should refrain from mentioning cases that are now in the judicial process.

 

Mr YIU, please continue with your speech.

 

MR YIU SI-WING (in Cantonese): President, I have just given some examples to explain why it is necessary to extend the retirement age of Judges for five years. Senior judges have a guiding role in the entire court or legal system. I have given these examples to illustrate the importance of senior judges because there may be problems when cases are heard by some judges with less experience. I think the relevant remarks have not digressed from the subject.

 

President, as regards the cases I just mentioned that have been sentenced, whether the community or the Legislative Council can comment is up to your decision. However, if the cases have not yet entered the stage of appeal, do we still have the right to make comments? If we cannot make any comment after a judge has made a comment or passed a judgment, does it mean that we can never comment on issues involving judges? I think this issue is worthy of discussion; so I will not withdraw my comments and views on the case.

 

President, the community will inevitably have all kinds of doubts that I have just mentioned, and the public's perception of judicial independence will also be affected. In this disturbance arising from the proposed legislative amendment, hundreds and even thousands of protesters may be prosecuted. The judgments recently made by the court will arouse the concern of the pro-establishment camp or non-establishment camp. Therefore, it is even more important for the court to make fair judgments; otherwise, there will definitely be criticisms which will put more pressure on the courts and judges.

 

Chief Justice of CFA, Mr Geoffrey MA, cited the judgment given by CFA in 2018 in the case of Secretary for Justice v WONG Chi-fung: "It is important to state at the outset of this judgment that it is not the role or function of the courts of the Hong Kong Special Administrative Region ('HKSAR') to enter into this or any other political debate. Instead, the duty of the courts is, through an independent judiciary, to administer the law of the HKSAR, including the Basic Law, and to adjudicate on the legal issues raised in any case according to the law. In reaching a decision in any given case, a court exclusively applies the applicable legal principles to the relevant facts and thereby reaches a decision on the appropriate disposition of the case, explaining its reasons in its judgment. That is the sole task of this Court in these appeals." Chief Justice Geoffrey MA has explicitly stated the roles or positions of the courts.

 

As for judges at various levels of courts, I believe that most judges will uphold the above principles and make fair judgments. However, as the factual background of cases are not the same, judges have to make judgments in an objective and professional manner; otherwise, the public will inevitably have negative feelings if the judgments of the courts are unfair. In dealing with some controversial cases, senior judges with sufficient experience can play positive roles, make judgments, provide evidence for the judgments, and provide guidance. That is why I have referred to certain cases just now.

 

In addition, since the judge has to make a judgment based on the information provided by the prosecution and the defence, the Department of Justice has to assume greater responsibility and be more efficient in prosecution under the current special circumstances. The information provided must be accurate and mistakes cannot be made. Yet, the Department of Justice made a low-level mistake in a recent case involving an arsenal. Therefore, I think that the guidance given by senior judges is very important and will contribute to the prosecutions made by the Department of Justice in the future.

 

I so submit.