LEGISLATIVE COUNCIL ― 7 November 2019 1257

OFFICIAL RECORD OF PROCEEDINGS

Thursday, 7 November 2019

The Council continued to meet at Nine o'clock

MEMBERS PRESENT:

THE PRESIDENT THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P.

THE HONOURABLE JAMES TO KUN-SUN

THE HONOURABLE LEUNG YIU-CHUNG

THE HONOURABLE TOMMY CHEUNG YU-YAN, G.B.S., J.P.

PROF THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P.

THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P.

THE HONOURABLE WONG TING-KWONG, G.B.S., J.P.

THE HONOURABLE CHAN HAK-KAN, B.B.S., J.P.

THE HONOURABLE CHAN KIN-POR, G.B.S., J.P.

DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, S.B.S., J.P.

THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P.

THE HONOURABLE PAUL TSE WAI-CHUN, J.P.

THE HONOURABLE CLAUDIA MO

1258 LEGISLATIVE COUNCIL ― 7 November 2019

THE HONOURABLE STEVEN HO CHUN-YIN, B.B.S.

THE HONOURABLE FRANKIE YICK CHI-MING, S.B.S., J.P.

THE HONOURABLE WU CHI-WAI, M.H.

THE HONOURABLE YIU SI-WING, B.B.S.

THE HONOURABLE MA FUNG-KWOK, S.B.S., J.P.

THE HONOURABLE CHARLES PETER MOK, J.P.

THE HONOURABLE CHAN CHI-CHUEN

THE HONOURABLE CHAN HAN-PAN, B.B.S., J.P.

THE HONOURABLE LEUNG CHE-CHEUNG, S.B.S., M.H., J.P.

THE HONOURABLE KENNETH LEUNG

DR THE HONOURABLE KWOK KA-KI

THE HONOURABLE DENNIS KWOK WING-HANG

THE HONOURABLE CHRISTOPHER CHEUNG WAH-FUNG, S.B.S., J.P.

THE HONOURABLE IP KIN-YUEN

THE HONOURABLE ELIZABETH QUAT, B.B.S., J.P.

THE HONOURABLE MARTIN LIAO CHEUNG-KONG, G.B.S., J.P.

THE HONOURABLE POON SIU-PING, B.B.S., M.H.

DR THE HONOURABLE CHIANG LAI-WAN, S.B.S., J.P.

IR DR THE HONOURABLE LO WAI-KWOK, S.B.S., M.H., J.P.

LEGISLATIVE COUNCIL ― 7 November 2019 1259

THE HONOURABLE ALVIN YEUNG

THE HONOURABLE ANDREW WAN SIU-KIN

THE HONOURABLE JIMMY NG WING-KA, B.B.S., J.P.

THE HONOURABLE HO KAI-MING

THE HONOURABLE HOLDEN CHOW HO-DING

THE HONOURABLE SHIU KA-FAI, J.P.

THE HONOURABLE SHIU KA-CHUN

THE HONOURABLE WILSON OR CHONG-SHING, M.H.

THE HONOURABLE YUNG HOI-YAN, J.P.

DR THE HONOURABLE PIERRE CHAN

THE HONOURABLE CHAN CHUN-YING, J.P.

THE HONOURABLE TANYA CHAN

THE HONOURABLE CHEUNG KWOK-KWAN, J.P.

THE HONOURABLE LUK CHUNG-HUNG, J.P.

THE HONOURABLE JEREMY TAM MAN-HO

THE HONOURABLE GARY FAN KWOK-WAI

THE HONOURABLE AU NOK-HIN

THE HONOURABLE VINCENT CHENG WING-SHUN, M.H., J.P.

THE HONOURABLE TONY TSE WAI-CHUEN, B.B.S.

THE HONOURABLE CHAN HOI-YAN

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MEMBERS ABSENT:

THE HONOURABLE ABRAHAM SHEK LAI-HIM, G.B.S., J.P.

THE HONOURABLE STARRY LEE WAI-KING, S.B.S., J.P.

THE HONOURABLE WONG KWOK-KIN, S.B.S., J.P.

THE HONOURABLE MICHAEL TIEN PUK-SUN, B.B.S., J.P.

THE HONOURABLE ALICE MAK MEI-KUEN, B.B.S., J.P.

THE HONOURABLE KWOK WAI-KEUNG, J.P.

DR THE HONOURABLE FERNANDO CHEUNG CHIU-HUNG

DR THE HONOURABLE HELENA WONG PIK-WAN

THE HONOURABLE CHUNG KWOK-PAN

THE HONOURABLE CHU HOI-DICK

THE HONOURABLE JUNIUS HO KWAN-YIU, J.P.

THE HONOURABLE LAM CHEUK-TING

THE HONOURABLE HUI CHI-FUNG

THE HONOURABLE LAU KWOK-FAN, M.H.

THE HONOURABLE KENNETH LAU IP-KEUNG, B.B.S., M.H., J.P.

DR THE HONOURABLE CHENG CHUNG-TAI

THE HONOURABLE KWONG CHUN-YU

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PUBLIC OFFICER ATTENDING:

THE HONOURABLE MATTHEW CHEUNG KIN-CHUNG, G.B.M., G.B.S., J.P. CHIEF SECRETARY FOR ADMINISTRATION

CLERKS IN ATTENDANCE:

MS ANITA SIT, ASSISTANT SECRETARY GENERAL

MISS FLORA TAI YIN-PING, ASSISTANT SECRETARY GENERAL

MS DORA WAI, ASSISTANT SECRETARY GENERAL

MR MATTHEW LOO, ASSISTANT SECRETARY GENERAL

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GOVERNMENT BILLS

Second Reading of Government Bills

Resumption of Second Reading Debate on Government Bill

PRESIDENT (in Cantonese): Good morning, Council will now continue the Second Reading debate of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019.

Ir Dr LO Wai-kwok, please speak.

JUDICIAL OFFICERS (EXTENSION OF RETIREMENT AGE) (AMENDMENT) BILL 2019

Resumption of debate on Second Reading which was moved on 20 March 2019

IR DR LO WAI-KWOK (in Cantonese): President, according to the prevailing system, the Hong Kong Court of Final Appeal Ordinance (Cap. 484), the High Court Ordinance (Cap. 4), the District Court Ordinance (Cap. 336) and the Pension Benefits (Judicial Officers) Ordinance (Cap. 401), the statutory retirement ages of relevant Judges and Judicial Officers ("JJOs") are clearly provided. Meanwhile, the Judicial Officers Recommendation Commission ("JORC"), which is set up under the Judicial Officers Recommendation Commission Ordinance (Cap. 92), makes recommendations to the Chief Executive on judicial appointments. According to the policy of JORC, extension of the term of judicial office beyond the statutory normal retirement age should not be automatic. It should be regarded as exceptional.

In respect of the statutory retirement ages for JJOs, the Judiciary commenced a review in 2014 and engaged a consultant to carry out a questionnaire survey on this matter in 2016. Then, in December 2017, it made a number of proposals in relation to extending the statutory retirement ages for JJOs ("the Judiciary's Proposals") to the Government. The Administration considered that the proposals would enable the Judiciary to sustain their manpower across different levels of court, which was important to the efficient and effective operation of the Judiciary. At the meeting of the Panel on LEGISLATIVE COUNCIL ― 7 November 2019 1263

Administration of Justice and Legal Services ("the Panel") on 18 July 2018, the Administration consulted members of the Panel on the Judiciary's Proposals. As a member of the Panel, I also attended the said meeting. Members of the Panel generally supported the proposals.

Against the above background, the authorities introduced the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") into the Legislative Council on 20 March this year. The Bill seeks to amend Cap. 4, Cap. 336, Cap. 401 and Cap. 484 to provide for the extension of retirement ages, extension of terms of office for certain JJOs, to introduce a discretionary early retirement age for certain judges and an early retirement age for certain Judicial Officers, and to provide for transitional and related matters. Subsequently, the Legislative Council formed a bills committee to scrutinize the Bill. Although I did not join the Bills Committee, I notice that the Bills Committee has stated in its report submitted to the House Committee on 14 June that it supported the resumption of the Second Reading debate on the Bill at the Legislative Council meeting, and both the Bills Committee and the Administration would not propose any amendment. It can thus been seen that there is not any substantial controversy to the Bill in the community.

President, perhaps we should further ask whether the Bill is proposed owing to certain actual needs. According to the Report on Judicial Remuneration Review 2018, retirement is the main source of wastage amongst JJOs, while the retirement situation may also pose challenges to the judicial manpower. For instance, the anticipated retirement will increase to 14 (or 8.5% of current strength) in 2019-2020. Moreover, as requested by the Bills Committee, the Judiciary Administration has provided two sets of information. As at 31 March this year, the information on the establishment and strength of JJOs at various levels of courts indicates that there are 62 vacancies out of a total of 218 posts; meanwhile, 32 JJOs will reach their statutory retirement ages between 2019 and 2022. Therefore, members of the Bills Committee generally agreed that extending the statutory retirement ages would help alleviate the shortage of judicial manpower.

President, next we should briefly examine whether some major proposals of the Bill are reasonable or not. We note that, in respect of the statutory retirement ages of JJOs, the two-tier retirement age system will be retained under the Bill. According to the authorities' explanation, given the small pool of 1264 LEGISLATIVE COUNCIL ― 7 November 2019 suitable candidates for appointment as Judges at the Court of First Instance ("CFI") level and above and the persistent difficulties in recruiting CFI Judges, the relevant statutory retirement age will be set higher, i.e. from 65 to 70, to hopefully help retain experienced senior judges and attract experienced and quality private legal practitioners to join the Judiciary. Meanwhile, no persistent recruitment difficulties have been observed for JJOs below the CFI level, thus a lower retirement age of 65 will be set for them. This can not only avoid creating promotion blockages for junior JJOs, but also attract new blood to the judicial service.

In my opinion, it is pragmatic to avoid the across-the-board approach and apply different treatments to deal with the appointment of JJOs at different levels. Regarding early retirement ages, if the retirement age for Judges at the CFI level and above is extended as proposed in the Bill, and yet if such Judges are still be able to retire at the existing statutory early retirement age of 60, it will give rise to a new problem, that is, they may retire any time within a long period of 10 years between the ages of 60 and 70, which will likely cause great difficulties in the Judiciary's manpower planning and deployment. Given that Hong Kong a small jurisdiction with a limited number of relevant JJOs, the Government accepts this argument and considers it reasonable to maintain the existing five-year interval between the early retirement age and the statutory retirement age. The statutory retirement ages of relevant JJOs is extended to 65 in the Bill.

The Bill also provides the Chief Justice with the discretionary power to approve early retirement for Judges at the CFI and above levels between the ages of 60 and 65 on exceptional grounds, such as health or family reasons. I agree that in order to cater for the manpower planning of the Judiciary and the specific needs of individual Judges, it is acceptable to introduce a discretionary arrangement. As for JJOs below the CFI level, the five-year interval between the early retirement age and the statutory retirement age also applies. The Bill will introduce a new statutory early retirement age of 60 correspondingly.

As regard discretionary extension arrangements, the Administration agrees to the Judiciary's recommendation, i.e. to maintain the existing discretionary extension arrangements beyond the statutory retirement ages for JJOs at all levels of court. Specifically, the term of office of Judges of the Court of Final Appeal may be extended for two periods of three years; and the term of office of other JJOs may be extended for a specified period or periods not exceeding five years LEGISLATIVE COUNCIL ― 7 November 2019 1265 in aggregate. Meanwhile, for parity's sake, discretionary extension of term of office with an extension period of not exceeding five years in aggregate will apply to all District Judges.

President, in order to facilitate a smooth implementation of the Judiciary's recommendation, the Bill also puts in place transitional arrangements to allow serving JJOs to choose whether to transfer to the new retirement ages or to remain under the existing retirement ages. A serving JJO can exercise the option of joining the new retirement age arrangement during an option period of two years, or until his existing statutory normal retirement age or expiry of extension of service, whichever is the earliest. In addition, the Bill also provides for the payment of pension in the case of discretionary early retirement of JJOs.

It can thus be seen that the legislative amendment proposals as reflected by the Bill are rather pragmatic. On the one hand, they are conducive to retaining experienced JJOs; on the other hand, they will also attract talents to join the Bench, thereby hopefully improving judicial manpower planning and deployment. In fact, the Judiciary has consulted many stakeholders on the relevant proposals, including the Hong Kong Bar Association and The Law Society of Hong Kong, and support has been given.

Notwithstanding, is there any other issue of concern regarding this subject? At the meeting of the Panel on 18 July 2018 and during the scrutiny of the Bills Committee, fellow colleagues of this Council had also shared their views and suggestions. First, even the arrangement of discretionary extension of retirement ages is implemented, it may only partly solve the judicial manpower shortage problem. Therefore, the authorities should comprehensively review and improve the salaries and conditions of service of Judicial Officers, which includes finding ways to reduce the workload of Judges, such as recruiting additional administrative supporting staff to assist Judges in handling the administrative work in court; meanwhile, efforts should be strengthened in attracting more members of the legal profession to join the Bench, optimizing the training for JJOs and perfecting the existing ladder for promotion.

Furthermore, the authorities should also review the recruitment procedures and threshold of Judicial Officers to see if improvements should be made to keep pace with the times, so as to avoid hampering suitable talents from joining the Judiciary. In fact, some members of the legal profession once pointed out that currently, senior counsels are the main targets for recruitment of Judges and the 1266 LEGISLATIVE COUNCIL ― 7 November 2019 recruitment is confined to the barrister profession. Only a limited number of solicitors are offered with judicial appointments. Nevertheless, veteran solicitors should also be regarded as suitable candidates for Judges. I think the views of fellow Members of this Council and members of the profession are worthy of serious consideration by the Administration.

President, in the long run, the Judiciary should even think out of the box and comprehensively review the operation of the judicial system, so as to ensure that the rule of law in Hong Kong can be upheld effectively. First, since we do not have enough judges, including the persistent difficulties in recruiting judges (including CFI Judges), making it necessary to extend the retirement ages for Judges, and given that the backlog of criminal litigation cases involving law-breaking violence and even riots in recent years has already seriously overburdened the judicial system, should the authorities consider optimizing the existing mechanism for recruiting judges? Besides the conventional choices of the United Kingdom, Canada and Australia, can we also consider judges from common law jurisdictions in Asia, such as Singapore and Malaysia?

Another issue also worth paying attention to is how to enhance people's confidence in the entire judicial system. In recent years, some Judges' judgments on certain criminal litigation cases have often aroused widespread controversies in society. Lately, some Judges have even made anonymous political declaration in a high profile manner amidst the social unrest triggered off by opposition to the amendment of the Fugitive Offenders Ordinance, thus arousing public uproar. The public would unavoidably have serious doubts about the neutrality and professionalism of the Judges in question in handling cases relating to the opposition to the proposed legislative amendment. As we always talk about how to strengthen the monitoring of government officials or Members of the Legislative Council, should the authorities respond to society's concern and consider setting up a relatively objective and just mechanism for monitoring the performance of Judges at all levels?

With these remarks, President, I support the passage of the Bill.

MR FRANKIE YICK (in Cantonese): President, in view of the recruitment difficulty of Judges and Judicial Officers ("JJOs") over the past few years and the retirement wave among Hong Kong's Judicial Officers in the coming years, the Government must take measures to alleviate the shortage of judicial manpower so LEGISLATIVE COUNCIL ― 7 November 2019 1267 as to avoid impairing the efficiency of the Judiciary. The Liberal Party supports the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") proposed by the Government to extend the retirement ages of JJOs and ease manpower shortage in the Judiciary.

The Judiciary has an increasingly heavy workload. Take 2018 for example, the Court of First Instance ("CFI") of the High Court received as many as 3 000 applications for leave for judicial review, which was 2.5 times and 13 times of the respective numbers in 2017 and 2016. Among those 3 000 applications, 2 851 were about non-refoulement claims, nearly tripling the same figure in 2017 and higher than that in 2016 by 46 times. The number of appeals on civil matters handled by the Court of Appeal ("CA") of the High Court had also doubled the same figure in 2017 to 611 owing to the surge of appeal cases on non-refoulement claims. While the total number of court cases only increased from 485 000 in 2017 to 500 000 in 2018, representing a slight increase of some 17 000 or 3.5%, quantity alone cannot reflect the actual workload of Judicial Officers. Complexity of court cases should also be taken into account. An increasing number of complicated cases in recent years has significantly lengthened the hearing time, costing Judicial Officers more efforts to deal with such time-consuming cases.

While the caseload of all courts is on the rise, the Judiciary is short-handed. According to the figures of the Judiciary, as at the end of March this year, the establishment of JJOs was 218. Compared to the strength of 156, the vacancy rate was nearly 30%. As for the number of Judicial Officers, it even experienced a year-on-year negative growth by March 2019 after the strength had dropped by eight from the same time in 2018. The above illustration shows that the manpower shortage in the Judiciary has worsened. When the Judiciary is on the whole short of hands, some courts are still required to second their staff to other courts. For instance, the Judiciary Administrator stated in last July that CFI would have seven internal deputy judges in addition to four external deputy judges.

At present, serving JJOs of the High Court, the District Court and the Magistrates' Courts are on average 58, 54 and 50 years old respectively. Given the existing statutory retirement ages of 60 and 65, a wave of retirement is upcoming in the Judiciary in the next few years. It is expected that 33 Judicial Officers, or 20% of the current strength, will retire in the next three years. 1268 LEGISLATIVE COUNCIL ― 7 November 2019

Retirement is obviously the main cause of staff wastage in the Judiciary. If the Judiciary fails to bring in new blood in a timely manner, the manpower shortage will hamper courts' efficiency in case handling.

Owing to insufficient judges in the Judiciary, work pressure is mounting at different court levels. Apart from that, caseload is also piling up to give a longer waiting time for hearing. The average waiting time for criminal cases in the District Court has long been failing to meet the target, undermining the legitimate interests of the people. When workload has increased by folds, the manpower of the Judiciary should have increased correspondingly, but the reality is that the Judiciary cannot even fill its existing vacancies.

In view of this, two years ago, Judicial Officers were provided with pay adjustments and remuneration enhancements under which housing, medical, education, dress and transportation allowances were granted to attract new blood and retain talents. However, the Judiciary still fails to meet its manpower needs.

The Liberal Party envisages that the demand for Judicial Officers will grow in tandem with the increasing workload of the Judiciary. To meet the manpower needs of the Judiciary and support its future development, the Liberal Party supports the Government in taking a multi-pronged approach to increase judicial manpower.

According to the proposed amendments of the Government, the statutory retirement ages for Judges at the CFI level and above (i.e. Judges of the Court of Final Appeal ("CFA") and the High Court) will be extended by five years from 65 to 70, and their early retirement age will also be extended by five years to 65. As for JJOs below the CFI level, they will have a uniform statutory retirement age of 65 and uniform early retirement age of 60. The Liberal Party considers the amended two-tier statutory retirement age system reasonable as it can retain talents and avoid creating promotion blockages for junior JJOs.

As JJOs are legal elites, the number of potential candidates is limited. The higher the court level, the more difficult the recruitment of Judges will be. Since the principles and rationale established in the judgments of High Court Judges, including CFI judges, are likely to form part of the precedents for reference in future, it is reasonable to impose more stringent demand on Judges at the CFI level and above than other Judicial Officers. Yet, as experienced senior Judges are the cream of the crop, there are hardly any potential candidates, LEGISLATIVE COUNCIL ― 7 November 2019 1269 making the recruitment extremely difficult. Upon the retirement of the Honourable Chief Justice Geoffrey MA, the appointment of his successor is expected to take at least nine months. This example shows how difficult it is to look for a competent Judge. Extending the statutory retirement ages of Judges at the CFI level and above to 70 is thus the only way to retain senior Judges.

In fact, with medical advances and enhanced health awareness among the public, people are in general physically fit and capable to work till 70. It is hence acceptable for the statutory retirement ages to be set at 70 as proposed. Moreover, setting the statutory retirement ages at 70 is in line with the practice of other common law jurisdictions (such as the United Kingdom, New Zealand and the Federal Court of Australia). The extension of retirement ages can also attract experienced private barristers to serve as Judges in the latter part of their career to reach another milestone.

The introduction of a uniform statutory retirement age of 65 for JJOs below the CFI level is also a move to adapt to the general environment. In view of population ageing, both private enterprises and the Government have extended retirement ages, and 65 is generally considered as an acceptable retirement age. Meanwhile, it is appropriate for the said JJOs to have a lower statutory retirement age to avoid creating promotion blockages for junior JJOs and attract new blood to the Judiciary.

Under the Bill, the discretionary extension arrangements are maintained and expanded to cover District Judges so that, after this legislative amendment, their terms of office can be extended on a discretionary basis. On the other hand, CFA Judges, who are the hardest to recruit, can have a longer discretionary extension than other JJOs, and that is understandable. Their term of office may be extended for not more than two periods of three years to allow them work till the age of 76. As for Judges of CA and CFI, as well as Judicial Officers below the CFI level, their term of office may be extended for a maximum of five years. Discretionary extension is a flexible arrangement to both Judges and the Judiciary. On the part of Judges, they may decide whether to apply for extension based on their health and personal conditions; on the part of the Judiciary, it may consider whether to offer discretionary extension to Judges based on the prevailing operation and actual manpower needs.

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When there is discretionary extension, there is also discretionary early retirement. Discretionary early retirement at the age of 60 is already available to all JJOs except those of the Lands Tribunal and the Magistrates' Courts. In the current legislative amendment exercise, the Government also seeks to establish a two-tier system: for Judges at the CFI level and above, their discretionary and statutory early retirement ages will be set at 60 and 65 respectively to encourage senior Judges to serve for a longer period; for JJOs below the CFI level, they will have a uniform early retirement age of 60. This proposal should be able to address the needs of JJOs.

Hong Kong has a sound and credible judicial system which is well-recognized around the world. According to the Global Competitiveness Report 2019 published by the World Economic Forum, Hong Kong ranked second in Asia and eighth globally in terms of judicial independence. For the purpose of upholding the principle of judicial independence, JJOs at District Court level and above cannot return to private practice as a barrister or solicitor after judicial appointment. Since the remuneration for Judicial Officers is no match for that in the private market, a private barrister will be making much less money after joining the Bench. Some interested legal practitioners may hence hesitate to serve as Judicial Officers. Joining the Bench is an important career decision for a legal professional as there can be no return to private practice. Therefore, a sufficiently long guaranteed term of office will be able to attract legal elites to join the Judiciary while retaining experienced senior Judges.

President, the rule of law is the cornerstone of Hong Kong. All of us in Hong Kong are proud of our stringent and sound judicial system. The Liberal Party therefore supports the Bill and hopes that the Judiciary will then have sufficient resources to maintain its efficiency and the fine tradition of the rule of law in Hong Kong.

MR HOLDEN CHOW (in Cantonese): President, the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") aims to extend the retirement ages of Judges at the Court of First Instance ("CFI") of the High Court and above, Magistrates, and so on by five years. The relevant proposals would enable the Judiciary to sustain their manpower across different levels of court, which is crucial to the efficient and effective operation of the Judiciary.

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Generally speaking, serving Judges and Judicial Officers ("JJOs") could choose to join the new retirement arrangement during an option period of two years, or until the current the date of his/her reaching the normal retirement age or expiry of extension of terms of office, whichever was the earlier. The Judiciary envisages that extending the retirement age of JJOs would have a positive impact on attracting quality candidates who are in private practice to join the Bench at the later stage of their career life, and also on retaining experienced judicial manpower where appropriate.

The Judiciary has consulted the Hong Kong Bar Association, The Law Society of Hong Kong ("the Law Society") and the Legislative Council Panel on Administration of Justice and Legal Services on the proposals, and all of them are supportive. At present, many people and organizations have been accused of abusing the judicial review system in respect of political issues or infrastructure projects, thereby causing the Judiciary to spend a lot of time to deal with such cases. Yet, many of these cases are groundless and may even bring significant economic losses to society. Also, the large number of such cases has continuously added to the workload of the courts.

In response to the questions raised by members of the Legislative Council Finance Committee on 8 April 2019, the Government advised that in 2016, 2017 and 2018, the applications for leave to apply for judicial review was 228, 1 146 and 3 014 respectively. This shows that the number of applications has multiplied in the past three years. The average processing time from the date of filing of leave application to the date of decision is as long as 200 days, namely 195 days in 2016 and 232 days in 2017, indicating that judicial review cases have exerted a heavy burden on the courts. The Government also advised that the Judiciary has been addressing issues arising from the tight manpower situation.

President, in the present society of Hong Kong, tight manpower may also give rise to another problem. Noting that social riots have taken place in our society for nearly five months, I have previously mentioned in this Council that local courts should draw reference from the approach adopted by the United Kingdom in handling the local riots in 2011. Back then, a 24-hour special court was set up to expedite the trial of cases relating to the riots. As the United Kingdom is a country that operates under common law, the setting up of a special court had achieved remarkable results and produced imminent deterrent effect. With regard to the trial of cases, if penalty can be promptly imposed on defendants who are convicted, it would have a deterrent effect in society and help to stop the riots from spreading.

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President, if the overall manpower distribution of the Judiciary is very tight, it may pose as a hindrance to our wish for the Government to consider setting up a 24-hour special court. Therefore, I believe adjusting the existing staffing arrangement of the Judiciary will not only help to clear the case backlog of the Judiciary, but also respond to the present situation in Hong Kong.

President, in order to enhance the judicial efficiency of Hong Kong, the most direct solution is to increase judicial manpower. Manpower shortage has been a long-standing problem facing the courts because of the principle of putting quality before quantity. As many Judges will successively reach the retirement age, the filling of vacancies cannot meet the shortfall of manpower wastage. The anticipated retirement of JJOs would be 8 in 2018-2019, increasing to 14 in 2019-2020, and the number of staff departing will continue to rise.

According to the policy of the Judicial Officers Recommendation Commission on the extension of the retirement age of Judges, extension of the term of judicial office beyond the statutory normal retirement age should not be automatic, and extension will only be approved under exceptional circumstances. Generally speaking, two conditions must be met: first, the Judiciary has operational needs, including the need for continuity; second, the extension would not hinder the advancement of junior officers. In effect, however, very few Judges were granted extension of their terms of office.

Regarding precedent cases for extension of the term of judicial office at level of the Court of Final Appeal ("CFA"), since the establishment of CFA in 1997, there has only been one case of extension of the term of office of a CFA Judge in October in 1998. Later in 2009 and 2012, a total of six Judges were granted extension, including three Judges of the Court of Appeal, one CFI Judge and two Permanent Magistrates. From this, we can see that regardless of whether the Judges themselves want to remain in office, many of them choose to leave the Judiciary when they reach the retirement age. Given that retirement has always been the major reason for the loss of Judges, raising the retirement age of Judges in Hong Kong will enable junior officers to have more time to accumulate experience so that they can be more competent in their work; at the same time, experienced judges can continue to guide the local judicial officers, which is definitely beneficial to Hong Kong's overall rule of law.

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President, I also wish to talk about the retirement age of judges in other countries. Under the Pension Benefits (Judicial Officers) Ordinance (Cap. 401), the general retirement age of Chief Justice or permanent Judges of CFA, or Judges of the High Court or District Court is set at 65, and extension would be approved only under exceptional circumstances. The retirement age of Judges in Hong Kong is lower than that of other common law jurisdictions, for example, the retirement age of judges in the United Kingdom is between 70 and 75; Canada is the same, between 70 and 75 and Australia 70. Referring to the retirement age of judicial officers in other countries, I consider it reasonable for Hong Kong to extend the retirement age under the Bill, so as to retain Judges in our Judiciary.

President, with regard to the Bill, apart from extending the retirement age, the Judiciary should also consider other ways to deal with the problem of manpower shortage. We have referred to a number of recommendations made by local think tanks, and I would like to quote from a research report published by the Hong Kong Policy Research Institute in October 2017 on increasing judicial manpower and resources. One of the paragraphs has highlighted the proposed appointment of solicitors as judges (I quote): "The President of the Law Society, Stephen HUNG, also referred to this phenomenon and he considered that, 'The traditional approach of recruiting from senior barristers restricts the search for talent undesirably and should be reviewed. Many law firms support the Judiciary by permitting their solicitors to clear their diaries so they can accept temporary appointments as Deputy District Court Judges or as Masters in the High Court. Senior solicitors should be regarded as suitable candidates for appointment as Recorders or Deputy Judges in the High Court. The Judicial Officers Recommendation Commission should widen its search and should actively consider making such appointments so that potential candidates can receive experience sitting as Recorders and as Deputy Judges in the High Court and be assessed on capability as well as suitability'." (End of quote)

President, the above quoted content is self-explanatory. In the past, the Judiciary very often appointed Senior Counsels or barristers to sit as Deputy Judges or Judges, but there are also many seasoned members of the Solicitors' profession who have the experience and capability to serve as Judges. If the search can be widened such that members of the Solicitors' profession will also be appointed as Judges, it will certainly help resolve the manpower shortage problem of the Judiciary in the long run.

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Here, I would like to quote some other suggestions. A think tank hopes that "the Judiciary would increase the appointment of temporary Deputy Judges on a contract basis, because there are more solicitors willing to sit as Deputy Judges than permanent Judges and is thus easier to recruit, which can therefore help alleviate the manpower shortage problem in the short term." It is hoped that the Judiciary will consider the relevant proposals.

President, as I have pointed out, in the long run, there is a very close connection between maintaining the reputation of Hong Kong's legal and judicial systems and the adequacy of manpower of the Judiciary. I would like to reiterate that Hong Kong's judicial system or the rule of law is among the best in the world. If there are too many criminal or civil cases pending trial or judgment for an extended period of time, this may affect other people's perception of Hong Kong's judicial system. Therefore, in order to effectively deal with the cases and avoid a large backlog of criminal or civil cases, there is a genuine need to increase manpower. I hope that the manpower shortage problem of the Judiciary will be resolved in the long run.

President, last of all, apart from the shortage of manpower across different levels of court, I would also like to talk about the staffing problem of the Small Claims Tribunal. After an increase in the financial limit of claims of the Small Claims Tribunal, the fact that legal representation of both parties is not allowed has added to the workload of staff assisting the work of Judges. Given that the Small Claims Tribunal has all along been playing a very effective role, I hope that improvement can be made to the manpower deployment of staff assisting the work of Judges.

President, I so submit.

MRS REGINA IP (in Cantonese): President, although I did not join the Bills Committee on Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bills Committee"), I am highly concerned about the Bill because Hong Kong's judicial system, which is based on common law, is certainly our unique edge and it is also one of the important factors contributing to our success.

As many colleagues have pointed out in their speeches, Hong Kong's judicial system ranks very high in the world. The world renowned World Justice Project ranks Hong Kong's judicial system at the 16th place, three places LEGISLATIVE COUNCIL ― 7 November 2019 1275 higher than the United States and the top in Asia. We all know that under common law, there are basically two sets of laws: one is statutory law, i.e. laws formulated by the legislature, and the other is judge made law, i.e. laws made by judges through their judgments. Laws made by judges are very important and the judgment meted out by the Court of Final Appeal ("CFA") can even rewrite the history of Hong Kong. For example, in 2001, the judgment meted out by CFA in the CHONG Fung Yuen case gave all children born in Hong Kong the right of abode even if their parents were Chinese nationals. The judgment has consequently given rise to all sorts of problems including "doubly non-permanent resident babies" and "singly non-permanent resident babies". Hence, questions such as who the judges are, the qualities and standard of judges, whether there are problems with the judges recruited and whether the retirement age of judges should be extended are all issues of great concern to me.

Before I give my support to the extension of the retirement ages of Judges, I have a few questions to ask the Chief Secretary for Administration. First, after the meeting last night, the Chief Secretary clarified that the extension of Judges' terms of office was automatic. The retirement age for Judges at the Court of First Instance ("CFI") of the High Court level and above is extended to 75. Am I right? The retirement age of Judges below the CFI level can be extended to 70 but may be extended by discretion. My interpretation should be right, as it is so stated in the paper I have in hand. The problem is: If their retirement ages are extended automatically, are the Judges required to undergo a health check to ascertain that they are medically fit? According to the paper, Judges and Judicial Officers ("JJOs") must pass a medical examination before their terms of office are extended by discretion. If the retirement ages are extended to 70 or 75, which are rather senior in age, as in my case, will JJOs be required to undergo a health check each year? I have a health check each year.

A person's health condition may not be commensurate with his age. Some young people might die suddenly while some others, such as Senator Bernie SANDERS of the United States, though being 78 years old, still runs for the presidential election. Given such a significant extension of retirement ages, I think the Judiciary should require JJOs to undergo a health check.

Moreover, I am also very concerned about the judicial temperament of judges. Judicial temperament is very important. President, please allow me to quote from the famous book titled The Rule of Law written by Lord BINGHAM, a renowned Judge in the United Kingdom. In the book, Sir Matthew HALE's 1276 LEGISLATIVE COUNCIL ― 7 November 2019

Resolution was quoted. Sir HALE, a renowned Judge in the United Kingdom in the 17th century, gave some guidelines to judges. What exactly is judicial temperament? Let me read a couple of paragraphs from the book, "That in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked", that is, a judge cannot act impetuously and be swayed by his emotions. Another quote, "That I suffer not myself to be prepossessed with any judgment at all, till the whole business and both parties be heard", that is, a judge should not be prejudiced by preconceived ideas, and he should listen to both parties' submissions with an open mind. Another point, "That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard". The meaning is the same, that is, a judge cannot express his own views on any subject from the outset. There is one more point, "That popular or court applause or distaste, have no influence into anything I do in point of distribution of justice", that is, when meting out a judgment, a judge should not worry whether he will gain popularity or offend anyone. These points can be manifested in the oath taken by judicial officers.

Chief Secretary, the above advice can reflect that some of our Judges do have serious problems. President, as pointed out by Dr Priscilla LEUNG, Chairman of the Bills Committee, yesterday, a High Court Judge joined in marches and even signed a joint petition―we also know who he is. I learnt that the Chief Justice of CFA has admonished him, but is that enough? If in future there are cases concerning the disturbances arising from the proposed legislative amendments, how will CFA or the Judiciary deal with the CFI Judge in question? Will he be allowed to hear cases on the disturbances arising from the proposed legislative amendment? In addition, given that the Judge in question does not have any judicial temperament as he is prejudiced by preconceived ideas and has very strong personal political beliefs, should his retirement age be extended to 75? This is a big problem.

I fully understand why the Government wants to extend the retirement ages of Judges, as many Judges are about to retire but it is hard to recruit new blood. If we take a look at the information provided by the Government, we will find that there are also serious problems at the Magistrate level as there are large numbers of vacancies. I think the Government should step up the management of Magistrates. I think the Chief Secretary may also know that in recent years, the judgments handed down by the Magistrates in a few cases were rather unsettling. Two of the cases were scandals, one of which might even be an international scandal. One Deputy Magistrate surnamed HO, whose name has LEGISLATIVE COUNCIL ― 7 November 2019 1277 been published, spent 91 days hearing a jaywalking case. The case had even given rise to three judicial reviews. In the end, the Nepalese domestic helper involved in jaywalking was acquitted because the taxi driver who knocked her down could not produce any evidence and the Nepalese domestic helper even sued the Government for compensation of over $1 million. That is truly a mess. How could the Judiciary allow these things to happen?

President, allow me to be frank with you. I once wrote an email to the Judiciary Administrator, enquiring how the resources of the Judiciary were managed. He answered me in only one sentence, "Judicial independence. Do not ask." I am greatly dissatisfied with that answer because judicial independence is only about adjudication of cases. Of course, it is the judge who makes the judgment, and the court says that I can file a judicial review if I am aggrieved. But does this mean that the court encourages people to incessantly file applications for judicial review? Mr Holden CHOW has mentioned this point just now. I then asked the Judiciary Administrator why this post was created in the first place. The first person to take up this post is someone who the President also knows. Alice TAI took up the post of the Judiciary Administrator and she later became the Ombudsman in 1994. Why do we have the Panel on Administration of Justice and Legal Services in the Legislative Council? This is because―not one pan-democratic Member is at the Chamber now―the former Governor Chris PATTEN, regarded by pan-democratic Members as their godfather, knew before he came to Hong Kong to assume duty in the 1990s that the Judiciary had great problems with resource management. Therefore, after assuming office, he asked the then Chief Secretary, David FORD, the Director of Administration and the Deputy Director of Administration, that was me, to create the post of the Judiciary Administrator. He also asked the Legislative Council to set up the Panel on Administration of Justice and Legal Services to monitor the Judiciary's resource management. Hence, I think that apart from extending the retirement ages of Judges … Of course, we will not interfere with the judgment of Judges. The Chief Justice said that we could apply for a judicial review, but this would further increase the workload of the Judiciary. But in such a case, does the Judiciary have better solutions? Of course, I think that the Department of Justice should also bear some responsibility because in case there was a magistrate who kept bickering with the defence counsel, the prosecution should request a change of personnel, or even the defence counsel should request another magistrate. Both parties could make the request. It was just a mess.

1278 LEGISLATIVE COUNCIL ― 7 November 2019

Recently, there is another messy case involving the judgment of magistrates, i.e. the widely criticized national flag case. As pointed out by many people, including Mr SIN Kwok-lam and Mr Symon WONG, a retired Magistrate, in the case that happened in Sha Tin, the offender who trampled the national flag was only sentenced to 200 hours of community service, yet a Mainlander was sentenced to four weeks' imprisonment immediately after being found guilty of defacing the external wall of the Consulate General of the United States in Hong Kong. Were those judgments consistent? Mr Symon WONG, a retired Magistrate, pointed out in a video that trampling the national flag was a very serious crime, even more serious than burning the national flag. The incident took place in New Town Plaza where the offender tossed the flag on the floor, trampled it continuously and finally threw it into the river. Will the Department of Justice lodge an appeal?

In order to provide High Court Judges with the remuneration they deserve, the Government has done a lot, for example, a pay rise in 2016, and an improvement to their conditions of service in 2017 by providing a non-accountable housing allowance of $150,000. We have done our best to improve the terms of employment of High Court Judges.

Can we have better management of judges of lower courts? Can we ask judges or judges of higher courts to issue sentencing guidelines? There are also problems with the bail conditions. Recently, owing to the disturbances arising from the proposed legislative amendment, many people have been prosecuted and many of them have been released on bail. Of course, there are protests that these people should not be released on bail. As I have read the relevant legislation and have consulted the Department of Justice, I learned that in accordance with the Criminal Procedure Ordinance, people will usually be released on bail, unless there are special reasons, such as the judge thinks that the suspect will jump bail or interfere with the witness. If the suspects cannot be released on bail, we may not have sufficient space to detain them. Moreover, prolonged detention is not appropriate.

However, how come some people are only required to pay a bail of a few hundred dollars? How come the amount of bail of the person who bit off part of a police officer's finger is only $1,000? How come some people were allowed to travel aboard to give speeches after being bailed out while some have to observe curfew? Are there consistent guidelines? These all require an explanation from the court. President, the court can issue some sentencing LEGISLATIVE COUNCIL ― 7 November 2019 1279 guidelines. For example, in the appeal case of Joshua WONG, Nathan LAW and Alex CHOW concerning their acts in the Civic Square, the Court of Appeal did issue sentencing guidelines. Before I agree to extend the retirement ages of Judges, the court must respond to my above questions.

More importantly, when the Vice-premier of the State Council, Mr HAN Zheng, met with the Chief Executive some days ago, he said that the responsibility to stop violence and curb disorder should be jointly undertaken by the Executive, Legislature and Judiciary and this was also the greatest consensus in society. I do not think that such a remark was an instruction issued to the court or an interference with judicial independence. As Mr Holden CHOW has said, we should learn from the experience of the United Kingdom in handling the Tottenham riots in 2011. It took five days to stop the riot. A total of 1 500 people were arrested throughout the country. At that time, the judicial department was highly cooperative. To prevent prolonged detention of the arrestees, the department worked round the clock to process the prosecution cases. Of course, Hong Kong has yet to reach that stage. I know that the Police are handling many cases and I believe that at present, part of the bottleneck lies with the Police, followed by the Department of Justice and then the courts. If the Department of Justice or the courts are short of manpower, the Chief Secretary should help with the recruitment. When the courts take over the cases, they should follow the practice of the United Kingdom to clear the immense backlog. The courts can operate round the clock if so required. I do not want to hear judges say they are under great pressure because every one of us is under great pressure. At the present moment, we must work together to face the crisis of Hong Kong, the Executive, Legislature and Judiciary must work with concerted efforts to handle this unprecedented crisis, so as to stop violence and curb disorder as soon as possible.

I so submit.

MR CHAN CHUN-YING (in Cantonese): President, evidently, the purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") is to provide for the extension of the retirement ages for certain Judges and Judicial Officers ("JJOs") and to introduce a flexible arrangement for early retirement. The former should help solve the problem of insufficient manpower while the latter should address the heavy workload of Judicial Officers as some of them may not be able to cope with the workload.

1280 LEGISLATIVE COUNCIL ― 7 November 2019

Concerning judicial manpower, according to the Hong Kong Judiciary Annual Report 2018 ("the Annual Report"), the Judiciary continued to face heavy work pressures at all levels of court. While many performance targets were achieved, a number of targets at various levels of courts were not met. The Annual Report has even directly stated that the shortfall in judicial manpower is one of the major factors affecting the court waiting times. On the issue of manpower shortage, the Report on Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service further analysed that retirement is the main source of wastage among JJOs and the retirement situation may pose challenges to judicial manpower.

First of all, I would like to talk about the proposed amendments. Against the background mentioned above, the Judiciary proposed that the Government should amend the existing legislation. First, extend the statutory retirement age for Judges of the Court of Final Appeal ("CFA") (excluding non-permanent CFA Judges) and the High Court from 65 to 70, and that for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65. Next, introduce a new statutory discretionary early retirement age of 60 for Judges of CFA and the High Court. Third, introduce a statutory early retirement age of 60 for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level. Lastly, provide for discretionary extension of term of office for Judges of the District Court.

In the course of deliberation of the Bills Committee, many members were concerned that the two-tier retirement age system would be retained, i.e. Judges at the Court of First Instance ("CFI") level and above will have a higher statutory retirement age at 70 while JJOs below the CFI level will have a lower statutory retirement age at 65. In response, the Judiciary has explained that, in light of the small pool of suitable candidates for appointment as Judges at the CFI level and above and the persistent difficulties in recruiting CFI Judges, there are differences in the employment conditions to deal with the issue.

President, it can be foreseen that the workload of the Judiciary will substantially increase and this amendment is a fast-track measure to make up for the shortage of JJOs. However, it seems that this specific medicine will not be effective for a long time and we can foresee that the manpower problem of the Judiciary will become serious again in the near future. The reason is that the social incident which has lasted for five months from June to October this year has resulted in the arrest of more than 3 300 people. Mr Grenville CROSS, LEGISLATIVE COUNCIL ― 7 November 2019 1281 former Director of Public Prosecutions, opines trials related to the protest cases should be conducted as soon as possible. If the number of protesters being prosecuted continues to increase, it may be necessary to increase the number of magistrates and judges to ensure that these cases can be handled within the effective time limit. In this way, we can maintain judicial credibility while the suspects will be more fairly treated.

The large number of prosecution cases arising from social incident is only the tip of the iceberg of judicial workload. A considerable number of cases under the current system of non-refoulement claims also put a very heavy workload on CFI, Court of Appeal ("CA") and CFA.

President, in recent years, there has been an influx of a large number of people into Hong Kong and they have lodged torture claims or non-refoulement claims. The handling of such claims normally involves the following procedures: The claims will be screened by the Immigration Department and if the claimants are dissatisfied with the results, they can file administrative appeals with the Torture Claims Appeal Board ("TCAB"). Once an appeal has been rejected by TCAB, the claimant will normally apply to CFI for a judicial review permit and seek relief. If the application is rejected, the claimant can appeal to CA, and also appeal to CFA later on.

Information shows that the application for judicial review relating to non-refoulement claims has been increasing since 2017, from 103 cases in 2015 to 1 006 cases in 2017. In 2018 alone, there were nearly 3 000 judicial review applications filed with CFI. As of June this year, about 4 900 appeals were awaiting processing by TCAB. Assuming that most of the claimants will apply for judicial review, this will put an unimaginable burden on the courts. The legislative amendments proposed earlier by the Security Bureau intended to prevent abuse of judicial review by claimants. I hope that the relevant bill will be introduced into the Legislative Council for deliberation as soon as possible, so that the existing legislation can be amended appropriately to relieve the unnecessary pressure on the courts.

President, the manpower problem of the Judiciary is exacerbating and it seems that extending the retirement ages for Judges through the Bill is not a long-term solution. The extension will only increase the gap in seniority of Judges. In fact, the Judiciary can alleviate the existing problems in two ways. First, it has to review whether there is room for optimization of work processes, 1282 LEGISLATIVE COUNCIL ― 7 November 2019 i.e. whether Judges should perform other administrative tasks in addition to hearing cases. If that is the case, can the Judiciary consider recruiting additional administrative staff to deal with the administrative tasks of the courts, allowing Judges to be more focused on hearing case, thereby reducing their workload?

Second, it has to explore ways to attract Judges, such as offer better remuneration and benefits. According to sections 9(1A) and 9(2A) of the High Court Ordinance (Cap. 4), a person shall be eligible to be appointed to be a Judge of the High Court if he is qualified to practise as a solicitor of the High Court and has for at least 10 years practised as such. However, at present, senior barristers have mainly been recruited as Judges. Therefore, the Administration may consider training the existing senior lawyers to serve as Recorders or Masters of the High Court so that more legal professionals with different expertise can serve the public in the Judiciary.

President, the tense social atmosphere in recent months may create another obstacle to recruiting talents. I would like to quote the remarks made by Chief Justice of CFA Geoffrey MA, who has announced his retirement next year, at the Ceremonial Opening of the Legal Year 2019 and examine the butterfly effect of social incidents in recent years on the legal profession. Chief Justice Geoffrey MA stated that "This past year has seen courts at every level adjudicate on controversial cases. By "controversial" I am referring to those cases which emanate from controversial political or social events and over which members of the community have at times vastly different views. Following some judgments in the type of controversial case, there have been criticisms levelled against decisions of the courts and sometimes even personally against Judges".

The Hong Kong CFA is the highest court of appeal of the Hong Kong Special Administrative Region Government and it handles appeals and matters related to the civil and criminal judgments of the High Court. Mr Grenville CROSS, former Director of Public Prosecutions, stressed a few days ago at an exclusive interview by Sing Tao Daily that there were distinguished scholars from all over the world in the Hong Kong CFA, including Baroness HALE of Richmond, the President of the Supreme Court of the United Kingdom, and two former Presidents of the Supreme Court, Lord NEUBERGER and Lord PHILLIPS, whose judgments are highly respected locally and internationally.

President, under this social atmosphere, it goes without saying that it is a challenge to attract elites in the legal profession to join the courts at all levels, become members of the Bench and even become Judges of the Hong Kong CFA. LEGISLATIVE COUNCIL ― 7 November 2019 1283

However, I agree with Chief Justice Geoffrey MA that the functions and duties of the courts are not to make decisions on political or social issues. When a court decides a case, it should consider the relevant disputes in point of law, i.e. the outcomes of any legal disputes handled before the court depend on the law itself, even if the cases may have different political, social or economic effects; yet, the court only needs to consider legal issues.

According to Article 104 of the Basic Law, every judge must take the Judicial Oath which is a solemn and sincere undertaking. Every judge swears to uphold the Basic Law and to serve the Hong Kong Special Administrative Region and administer justice without fear or favour, self‑interest or deceit. When our society is facing difficulties, I hope that every member of the legal profession will dedicate to the work and that more legal professionals will become members of the Bench to manifest justice.

President, when compared with other jurisdictions in the world, judges in Hong Kong have a heavier workload and they deal with extremely complicated cases. Many people choose to resort to litigation in Hong Kong courts precisely because they have confidence in the judicial system of Hong Kong. As compared with other common law jurisdictions, the retirement age of judges in Hong Kong is indeed too low and may not be in line with the actual situation. It is quite certain that extending the retirement age should be conducive to recruiting and retaining experienced judges; thus, I support the Bill.

Yet, there is always a battle for talents in all sectors. I firmly believe that the basic conditions for retaining talents include: a stable social environment; a safe city; members of public can go anywhere they like on weekends and can express their views freely; they will not suddenly be impeded by blocked roads when they drive out; and they will not have to go home early for safety concern.

President, I so submit.

MR LEUNG CHE-CHEUNG (in Cantonese): President, the Government has extended the retirement age for Judges and Judicial Officers ("JJOs") of different levels of court where appropriate. The retirement age for Judges of the Court of Final Appeal ("CFA"), the Court of Appeal and the Court of First Instance ("CFI") of the High Court will be extended from the current 65 to 70, and the 1284 LEGISLATIVE COUNCIL ― 7 November 2019 retirement ages for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level will be extended from 60 to 65. I support the extension in principle.

If the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") is passed, the retirement age of Chief Justice Geoffrey MA will be extended to 70. This would certainly affect the succession arrangement and the constitutional procedure for the appointment of the next Chief Justice of CFA, which takes at least nine months. While I feel sorry for the retirement of Geoffrey MA, I wish him a happy post-retirement life and hope that he will continue to make contribution to society in legal services.

The World Health Organization of the United Nations introduced a new age group classification in 2015 after measuring global health quality and life expectancy. Under the new definition, human age is divided into five age groups, namely underage between 0 and 17 years old; young people between 18 and 65 years old; middle-aged between 66 and 79 years old; elderly between 80 and 99 years old and long-lived elderly for above 100 years old. Furthermore, the new classification also extends the degeneration of human by 10 years, such that persons under 80 years old are still regarded as middle-aged according to the new standard criterion. The proposed amendment of the Bill sets the maximum retirement age of Judicial Officers at 70 years old, which still falls within the group of middle-aged according to the new standard criterion. Adding that there are abundant resources and well-developed medical technologies nowadays, people aged 70 can still be very healthy, very energetic and have very good working ability.

With an ageing population and low birth rate, many countries and regions have implemented the policy of extending the retirement age. In Hong Kong, there is no statutory retirement age and it is the normal practice to retire at 60 years old. Arrangements have already been put in place by government departments to extend the retirement age, thereby allowing civil servants to apply upon reaching the retirement age of 60. Enterprises are also encouraged to extend the retirement age or re-employ retired employees so that they can continue to contribute to their enterprises and help to train new blood.

JJOs have their specialized functions and skills, and are high quality talents. The majority of them are engaged in knowledge-based work and they seldom have to take up physical work, thus so long as they remain physically fit, LEGISLATIVE COUNCIL ― 7 November 2019 1285 they are still able to cope with the existing heavy workload and give play to their strengths. As the Judiciary is now facing the problems of manpower shortage and heavy workload, it is inevitable to extend the retirement age to retain talents.

The society is progressing day by day. Hong Kong, as an open international city, certainly faces a large number of trade litigations and arbitrations of various kinds. On the other hand, as people have gained an increasing knowledge in judiciary matters, they will resort to different judicial proceedings to settle conflicts, disputes or claims, and even seek judicial review against government policies.

Nowadays, cases have increased in both complexity and number, and in particular, there had been an upsurge in the number of non-refoulement claims involving refugees few years ago. Another example is the Family Court. Its excessive case backlog has placed enormous pressure and challenges on the Judiciary.

According to the information provided by the Government to the Legislative Council in April this year, 9 137 non-refoulement claimants were removed by the Immigration Department ("ImmD") from 2014 to 2018, among them 4 593 were removed after their non-refoulement claims were rejected. In 2018, 1 150 non-ethnic Chinese persons on recognizance were arrested for crimes and most of them are non-refoulement claimants. From this, we can see that upon entry into Hong Kong, some of these so-called refugees lodged non-refoulement claims on the one hand, and committed crimes while on recognizances on the other. Each of them is thus involved in two judicial cases, which have imposed tremendous pressure on Hong Kong's judicial system.

In the face of the peak of non-refoulement claims, a lot of work has actually been done by the Government, which include preventing claimants from entering Hong Kong as far as possible, expediting the screening of pending claims, shortening the time for screening each claim and increasing the number of members and secretariat staff in the Torture Claims Appeal Board. The Government indicated that the number of new claims has dropped by 80% as compared with the peak, and it can be seen that thousands of non-refoulement claims in the past did make it very difficult for the Judiciary, ImmD and the relevant departments to cope with.

1286 LEGISLATIVE COUNCIL ― 7 November 2019

Hong Kong's judicial system has excellent international reputation, and this is attributable to our independent judiciary system and an extremely high and professional judicial standard. All these are very important in upholding the rule of law and winning the trust of local and overseas people.

It is necessary for Hong Kong to have the rule of law, without which we can never achieve prosperity, enhance competitiveness and bring peaceful live to people. In order to have genuine rule of law, there must be an independent and impartial judicial arbitration system, the Government must have the ability to govern in accordance with the law whereas members of the public must abide by the law. Contrarily, in the absence of good rule of law and absence of awareness of the rule of law among members of the public, all efforts will become futile even if we have excellent JJOs.

In view of the social riots in the past four months or so, I trust that the majority of Hong Kong people who respect the rule of law and wish to maintain good rule of law would feel worried, puzzled and saddened when the rule of law was seriously trampled and disrupted.

What is the significance of the rule of law? To put it simply, the rule of law is a safeguard to ensure that everyone has the freedom to deal with his/her own matters without causing any negative impact on others. And yet, what have we seen in recent months? We have seen disruption of the rule of law, suppression of the freedom of expression, and rioters treating people with divergent views ferociously and even subjecting them to vigilante attacks. After Ms Annie WU expressed some personal views on the riot, shops belonging to the Maxim's Group have been wantonly vandalized time and again. Worse still, some people maliciously started a rumour on the Internet, claiming that some shops are operated by the Fujian gang and others are run by the triad, and then the facilities in these shops were all indiscriminately destroyed.

Furthermore, dozens of offices and Members' offices belonging to the pro-establishment camp were also vandalized. This is probably because the District Council election is around the corner, and the destruction seeks to stop the publicity and electoral campaigns of the pro-establishment candidates. Offices of many candidates have been ruthlessly vandalized, set on fire, spilled with water and defaced for five to six times …

LEGISLATIVE COUNCIL ― 7 November 2019 1287

PRESIDENT (in Cantonese): Mr LEUNG Che-cheung, please return to the subject of this debate.

MR LEUNG CHE-CHEUNG (in Cantonese): President, I am now discussing how the rule of law of Hong Kong has been disrupted.

PRESIDENT (in Cantonese): Mr LEUNG, the Council is now holding the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019. Please return to the subject of the debate.

MR LEUNG CHE-CHEUNG (in Cantonese): Alright, President, let me continue. I hope that the Police will strictly enforce the law as soon as possible, and the court will impose penalties with deterrent effect.

Over the years, the judicial system has faced many unexpected challenges and pressures. Apart from the large number of non-refoulement claims involving refugees mentioned earlier on, Hong Kong has also been facing many large-scale and abrupt social incidents recently. As Members may be aware, since the social riots broke out in June, more than 3 000 people have been arrested and these arrestees will be brought before the court. This will certainly create undue pressure on the Judiciary.

The Government's proposal to extend the retirement age of JJOs is mainly attributable to staff wastage. However, if we look from another perspective, it means a failure to make up for the loss of JJOs and the judge shortage has already existed for many years.

In order to become a judge, there is no doubt that stringent requirements must be met. As pointed by someone from the legal profession, it is very difficult for a magistrate to be promoted as a judge. From this, we can see that it is in no way easy to make up for the loss of JJOs. Of course, the Judiciary must offer attractive packages to attract outstanding legal talents with a strong sense of commitment to apply to join the Bench. At present, the most distinguished barristers with good reputation have much higher earnings than judges, it is therefore unlikely for them to consider becoming judges when they are still fighting to bring their career to peak. However, I believe many barristers do 1288 LEGISLATIVE COUNCIL ― 7 November 2019 have a very strong sense of dedication. I therefore hope that more of them will join the Bench in the days to come, so as to alleviate the manpower shortage problem of the Judiciary.

At present, the Judiciary has a huge backlog of cases, having to meet the performance pledge, and at the same time plaguing by the problem of wastage of Judicial Officers. The Judiciary is undoubtedly caught in a predicament. Therefore, the Legislative Council must stand behind the Judiciary today and support the Government's proposal to extend the retirement age of JJOs, so as to maintain a sound judicial system and quality judicial operations.

I support the Bill introduced by the Government today. I so submit.

MR MA FUNG-KWOK (in Cantonese): President, the present Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") proposed by the Government recommends legislative amendments to four ordinances, namely the High Court Ordinance, the District Court Ordinance, the Pension Benefits (Judicial Officers) Ordinance and the Hong Kong Court of Final Appeal Ordinance, so as to implement the Judiciary's recommendations pertaining to the extension of the statutory retirement ages of Judges.

With regard to the extension of the statutory retirement age of Judges and Judicial Officers ("JJOs"), the Judiciary commenced a review of the statutory retirement age of JJOs in as early as 2014 and engaged a consultant to carry out a questionnaire survey on this matter from March to May 2016 to gather the views of all serving JJOs at that period and other stakeholders.

Having regard to the outcome of the review and the consultant's recommendations, the Judiciary put forward a number of recommendations to the Administration in December 2017. The main proposals include: firstly, extending the statutory retirement age for Judges of the Court of Final Appeal ("CFA"), the Court of Appeal ("CA") and the Court of First Instance ("CFI") of the High Court from 65 to 70, and extending the statutory retirement age for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65; secondly, introducing a new statutory discretionary early retirement age of 60 for Judges of CFA as well as CA and CFI; thirdly, introducing a statutory early retirement age of 60 for Members of the LEGISLATIVE COUNCIL ― 7 November 2019 1289

Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level; and fourthly, providing for discretionary extension of term of office for Judges of the District Court.

President, in the face of an ageing population and a shrinking labour force, coupled with an extended life expectancy and so on, it can be said that an extension of retirement age is the trend of different countries and industries. Noting this trend long ago, the SAR Government announced in 2015 that since 1 June of that year, the retirement age of all new recruits to the civilian grades and disciplined services grades would be raised to 65 and 60 respectively. Later in 2018, it further proposed to extend the term of service of serving civil servants who joined the Government between 1 June 2000 and 31 May 2015, such that the civilian grades may choose to extend their retirement age to 65 whereas the disciplined services grades may choose to extend to 60.

Therefore, the Judiciary's recommendation to extend the statutory retirement age of JJOs has received widespread support from the Government, the Legislative Council and the legal profession, and the Judiciary hoped that the recommendation could be implemented as soon as possible. As pointed out in the speeches delivered by the Chief Justice of CFA Geoffrey MA at the closing ceremony of the last Legal Year and the Ceremonial Opening of this Legal Year, the retirement age of judges in Hong Kong is too low compared with that of other common law jurisdictions and does not tie in with the actual situation. Increasing the retirement age for judges across different levels of court is a way to attract outstanding talents with both judicial and professional abilities, and it is hoped that the relevant legislation would come into force in the middle of this year.

An extension of the statutory retirement age is not only a response to the need to extend the retirement age of the working population under the broad environment of an ageing population in the community at large, but also a targeted measure to address the unique difficulties in recruiting JJOs. As we all know, the Judiciary will recruit successful and renowned legal practitioners from the legal profession. However, after they are appointed as JJOs, not only will they earn less than before, but they cannot return to private practice as a barrister or solicitor after judicial appointments as District Court level judges and above. This has resulted in recruitment difficulties. The present proposal to extend the statutory retirement age of Judges can help retain serving JJOs as far as possible so that they can continue to serve the community with their rich experience and skills.

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Just as Chief Justice Geoffrey MA has said, the current statutory retirement age of JJOs in Hong Kong is generally lower than that of judges in other overseas jurisdictions. In many overseas jurisdictions, such as the United Kingdom, New Zealand and Australia, the retirement age of their judges is generally 70. Thus, there is sufficient room to extend the retirement age under the present system. What is more, this proposal will bring Hong Kong closer to the overseas jurisdictions, thereby enhancing its attractiveness such that we can recruit more judicial talents with rich judicial experience and expertise.

In addition, an extension of the retirement age will also prevent the existing shortage problem of Judicial Officers from worsening. According to the information provided by the Judiciary, there are currently 62 vacancies out of a total of 218 posts of JJOs, with a vacancy rate of nearly 30%. In the next three years, 32 JJOs will reach the original statutory retirement age. If their terms of service cannot be extended, it is believed this would inevitably exert even greater work pressure on the different levels of court of the Judiciary.

On the other hand, there are other areas of concern relating to this proposal, for example, an extension of the retirement age of Judges may stifle the career development of Judicial Officers, and the possibility of early retirement of Judges before reaching the statutory retirement age. With regard to the former concern, as it only involves a very small number of seasoned judicial talents and considering that the Judiciary has always encountered recruitment difficulties, it should not be a problem. As for the concern of early retirement, I also support the Government's proposal of introducing the requirement of approval by the Chief Justice of CFA, and discretionary arrangement to approve early retirement can only be made on exceptional grounds.

President, in view of the present social condition, massive violent acts have resulted in numerous arrests and prosecutions of demonstrators and rioters by the Police, which necessitate even more efficient handling by the Judiciary. Only appropriate judgments and sentencing can bring the community, especially organizers and participants of violent activities, to face due legal sanction; send a message promptly to the community and law-breakers that society attaches great importance to the rule of law and adhere to the principle of the rule of law, and allows the Judiciary to duly perform its social functions and responsibilities.

President, with these remarks, I support the Second Reading of the Bill. Thank you, President.

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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 1292 LEGISLATIVE COUNCIL ― 7 November 2019 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.

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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 1294 LEGISLATIVE COUNCIL ― 7 November 2019 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?

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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 1296 LEGISLATIVE COUNCIL ― 7 November 2019 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 LEGISLATIVE COUNCIL ― 7 November 2019 1297 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.

PRESIDENT (in Cantonese): I now suspend the meeting until 11:30 am.

10:47 am

Meeting suspended.

11:30 am

Council then resumed.

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, please speak.

MR KENNETH LEUNG: President, I am here to speak to give my support to the resumption of the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill").

As we all know, Hong Kong is a unique place to provide legal services to the international business community. The reason why I say this place is unique is because we have developed a bilingual judicial system, which is unparalleled in other parts of the world. I am not only talking about this based on the fact that we are the prime arbitration centre for commercial disputes in Asia, but also the fact that, if more international companies choose Hong Kong law as the governing law and the governing jurisdiction under Hong Kong courts, Hong Kong's legal business community and professional services sector as a whole will benefit from this choice of law.

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An independent Judiciary is a spine of our rule of law and this necessarily entails enough quality and trained judicial officers to fill the vacancies. Now, the supply of top-quality common law judges is a problem in many common law jurisdictions, not just Hong Kong. The supply of and demand for judges are great, but there are two factors which would affect the attractiveness of the Bench. Firstly, the prestige of the Bench, and secondly, the benefits we are going to reward these legal practitioners, many of whom are very experienced lawyers who have given up a very lucrative professional job to take the Bench.

Of course, the Bill, which extends, among other things, the retirement age of the top-class judges, puts us on a par with the arrangements for many other common law jurisdictions, including the United Kingdom, New Zealand and Australia. The crux of the Bill is to extend the retirement age of Judges of the Court of Appeal and Court of First Instance of the High Court and Judges of the Court of Final Appeal to 70. And in some circumstances, this statutory retirement age could further be extended.

As for the two points I have mentioned, namely the prestige of joining the Bench and the benefits, one of the very key components of a good judiciary is the independence of the judiciary. Over the past 22 years after the return of sovereignty to China, Hong Kong's Judiciary has remained independent but this very good quality is coming under a lot of encroachments, especially when judges have been criticized in many media by key opinion leaders, politicians, columnists, etc. In leading this life, I think a judge needs to keep a very low profile. He or she has a very high standard to observe. Not only should he or she not make comments in public about current affairs, but also his or her social life, personal life and family life have to be very low-key. In return for that, we will have a very respectable and prestigious Judiciary. That is the key point.

Of course, when it comes to benefits, the tenure of judges will be involved. Like most common law jurisdictions, the tenure of judges in Hong Kong is guaranteed lifelong, unless the particular judge has committed a very serious misconduct. Normally speaking, the tenure of judges in this jurisdiction is guaranteed for life. Now, having fixed the benefits and the tenure of the judges is one thing, and to maintain the independence, integrity and prestige of the Bench is another.

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Most recently, I have read a very alarming report, prepared by the Foreign Affairs Committee of the House of Commons of the United Kingdom concerning the role of British judges in Hong Kong's top court. And the headline is that they are very concerned about the erosion or the perceived erosion of "one country, two systems". Of course, the Foreign Affairs Committee of the United Kingdom Parliament is also very concerned about how the recent crisis has been handled by the Government, as this may lead to the actual or perceived erosion of "one country, two systems" and hence the independence of the Judiciary. And, the Committee also further recommends that there should be a coordinated response from the United Kingdom, Australian and Canadian governments. My understanding is that these common law jurisdictions also supply the judges, the Overseas Non-Permanent Judges, of our top court, the Hong Kong Court of Final Appeal.

President, this is quite alarming, as the Committee has pointed out that the recent incidents … These incidents have been quoted by many of my colleagues as a demonstration of the erosion of the rule of law. But I totally disagree with this point because these are incidents of breaking the law, but these are not incidents of breaking the rule of law. The rule of law, as mentioned by my learned friend, Mrs Regina IP, in this Chamber, means a lot of things. It means an independent Judiciary. It means being accessible to independent legal representation at an affordable cost. It means equal treatment of all people before the court. Of course, it also means a system of law which affords basic protection to human rights. These are the core values listed by the Honourable Lord BINGHAM's very famous book, The Rule of Law, which I have read many times.

We have to distinguish carefully between breaking the law itself and …

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, Mr Dennis KWOK has just now pointed to me that many Members have deviated from the subject in their speech. This Council is now conducting the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019, but I have noted that you have all along deviated from the subject in your speech. Please return to the subject of the debate.

1300 LEGISLATIVE COUNCIL ― 7 November 2019

MR KENNETH LEUNG: OK. Regarding the supply of judicial officers, I have talked about two points, which I think the President has totally missed. The two points will help increase the supply of judicial officers to this city. The first point concerns the benefits and tenure of the Bench, and the second more important point I have mentioned is about the integrity and prestige of serving on the Bench, which the President has totally missed. And the third point concerns increasing the supply of experienced lawyers joining the Bench, which is more of a problem. This is because, as mentioned by my many learned friends, once you become a judge, you cannot go back to private practice. It is a lifelong commitment and you have to lead a very quiet life being a judge in the High Court.

There are two criticisms about the supply chain―I should not say supply chain because it is a bit degrading―about the supply of quality lawyers to fill the Bench. Merely in this city, there is too much protectionism to enter the profession. For example, even if you are a graduate and First-Class Honours holder from Cambridge or Oxford University, when you come to practise or you come to enrol in the Postgraduate Certificate in Laws ("PCLL") course in this city―only three universities here offer the PCLL course―you still have to go through quite a ridiculous conversion course. I have to declare my interest because one of my children is pursuing a law degree and becoming a lawyer soon. Despite the fact that even a first-class graduate from a first-class university …

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, I think you have deviated from the subject in your speech, as the Council is not debating the issue of PCLL, but conducting the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019. Please return to the subject of the debate.

MR KENNETH LEUNG: I am talking about the supply, the Bill itself is not sufficient to deal with the supply of judicial officers in this city, because merely extending the legal retirement age will solve the immediate problem but not the long-term problem of filling posts in the Judiciary. And we have to remove the many elements of artificial protectionism to enter the legal profession. President, I think you have been using two yardsticks because, as we remember, you have allowed people to speak on all subjects …

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PRESIDENT (in Cantonese): Mr Kenneth LEUNG, are you accusing me of using two yardsticks?

MR KENNETH LEUNG: When you ruled on the Inland Revenue (Amendment) (Tax Concessions) Bill 2019 ("the Tax Concessions Bill") and this Bill …

PRESIDENT (in Cantonese): Please clarify whether you have accused me of using two yardsticks. If so, please withdraw that comment …

MR KENNETH LEUNG: No, I am not withdrawing this comment, Mr President, because when I …

PRESIDENT (in Cantonese): … as I have been using the same one yardstick to preside over the meeting. I would also like to remind you that you have deviated from the subject. Please return to the subject of the debate, and withdraw your allegation against me.

MR KENNETH LEUNG: Sir, I am not withdrawing that comment. It is not an allegation.

PRESIDENT (in Cantonese): If you do not withdraw that allegation, I will have to make a ruling.

MR KENNETH LEUNG: Ruling on what? I am not asking you for a ruling. I am speaking on the Bill, and I said that the increase in supply of lawyers …

PRESIDENT (in Cantonese): You have made an allegation against me. Please withdraw that allegation.

1302 LEGISLATIVE COUNCIL ― 7 November 2019

MR KENNETH LEUNG: I am saying the yardsticks of your treatment of the Tax Concessions Bill and this Bill are different. Is it an allegation? I do not think it is an allegation. I am stating a fact.

PRESIDENT (in Cantonese): I now suspend the meeting.

11:42 am

Meeting suspended.

12:35 pm

Council then resumed.

PRESIDENT (in Cantonese): The subject of the debate concerns the extension of the retirement age of Judicial Officers. As in the case of the debate on the Inland Revenue (Amendment) (Tax Concessions) Bill 2019, I have adopted a lenient approach and allowed Members to speak as far as possible. But I have just noted that Mr Kenneth LEUNG has deviated from the subject several times in his speech, and hence I have repeatedly reminded Mr LEUNG to speak on the subject.

I reiterate that I have all along adopted the same yardstick, that is, when I think that a Member has deviated from the subject, I will remind him or her to return to the subject. For this reason, Mr Kenneth LEUNG, as you have alleged that I have been "using two yardsticks", which I believe is not true and also offends me, I have requested you to immediately withdraw your allegation, but you have refused to do so.

I now ask you again, Mr Kenneth LEUNG, are you willing to withdraw the allegation made by you just now?

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MR KENNETH LEUNG: President, I declare that statement does not exist because I was asking you a question, and if you have made a clarification, then I think it is fine. I was asking a question whether there existed two yardsticks. So, that statement does not exist as I turned it into a question. It was a question. President, it …

PRESIDENT (in Cantonese): Mr LEUNG, I hope you will clearly state that you will withdraw the allegation.

MR KENNETH LEUNG: That statement does not exist. I formally declare that statement does not exist because I was wondering whether there were two yardsticks. And if that statement does not exist, then I do not need to give any more clarification. That was not a statement, and that was not an allegation. That was a question put to you, President.

PRESIDENT (in Cantonese): Mr Kenneth LEUNG, please continue with your speech.

MR KENNETH LEUNG: Let me go back to the point of increasing the supply of lawyers, because it is relevant to the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"). The whole purpose of the Bill is to increase the supply of quality judges to the Bench. I have previously mentioned that certain protectionist measures must be removed. I talked about this law student and also the other hurdles which I hope will be removed for registered foreign lawyers. If we increase the supply of lawyers from qualified common law jurisdictions, we will one way or another, in the medium run or in the long run, lure more qualified lawyers to sit on the Bench. That is another formula which I think the Government needs to think about hard, and it should persuade the two professional bodies to consider either admitting students to the Postgraduate Certificate in Laws course or adjusting the criteria for qualifying as Hong Kong practising solicitors or barristers. These are very important long-term goals which the Government should be aware of.

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The other scenario I am aware of is the quality of advocacy in this city and this also has a direct bearing on people becoming interested in the work of the court. I should emphasize that the mooting training in our law schools are not sufficient. I also appreciate the chance of sending more law students from the three universities to go on foreign trips to gain experience in common law courts in other jurisdictions, in those jurisdictions from which we recruit these judges, including Canada, New Zealand and Australia. Only by stimulating the interest of those students in advocacy and court work will we be able to secure a constant supply of quality lawyers and hence quality judges if the judiciary is going to recruit these students when they are qualified.

Apart from raising the retirement age, the third point I would like the Government to consider is whether it has ever considered requiring law students to go through a stint of training with the courts in Hong Kong. In many civil law jurisdictions, including France or Germany, they do require law students, apart from serving as trainees with a practising lawyer, being a solicitor or―they do not have a separate branch, and lawyers are known as "avocats" in France―to, for a period of one year or two in the court, be an assistant to a judge or be an assistant judge. But, of course, the common law system training is very different from the civil law jurisdiction training, and if we are going to take this route, then I think there needs to be a very thorough consultation with the two professional bodies and also the three universities which are offering the qualifying courses.

So, I reiterate that I totally support the resumption of the Second Reading debate on the Bill, and I also urge the Government to formulate more measures to increase the long-term supply of quality lawyers and attract the lawyers to be serving on the Bench.

Thank you.

MR JIMMY NG (in Cantonese): President, I speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), which is related to the judicial manpower, an issue that we are highly concerned about.

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As known to all, the disturbances arising from the opposition to the proposed legislative amendment have no sign of abating and thousands of people have been arrested. It can be said that the number of arrests is unprecedented. If the disturbances continue, there will definitely be more arrests. In retrospect, after the Occupy movement in 2014, it was not until March 2017 that several of the major initiators of the movement were charged and prosecuted, and it was only in April this year that the court meted out the judgment on the case. From this we can see that the entire judicial process takes a long time.

The scale of the disturbances today is much larger than that of the Occupy movement. The number of cases to be handled by the court will definitely be immense, requiring unprecedented court resources, including judicial manpower. The present situation highlights the longstanding problems of shortage of judges and recruitment difficulties that have always been pointed out by the authorities. Hence, it is meaningful and highly urgent for the Government to propose the Bill to extend the statutory retirement ages of Judges and Judicial Officers ("JJOs").

President, a question frequently asked is whether the existing workload can be coped with by extending the retirement ages of Judges. Regarding the workload of Judges, many people have pointed out that the remuneration of Judges cannot be compared to the remuneration they receive if they are in private practice, but the workload is equally very heavy. Hence members of the legal profession are discouraged to join the Bench. During the scrutiny of the Bill, many Honourable colleagues were concerned about the workload of Judges, especially those who have agreed to a discretionary extension of their term of office. At that time, the Government said that the workload of some retired Judges who agree to serve as Deputy Judges may be different, but other than that, there is little difference between the workload of Judges who have agreed to a discretionary extension of their term of office and that of ordinary Judges.

I have looked up the reports on the extension of retirement ages of Judges. For example, the speech made by Geoffrey MA, Chief Justice of the Court of Final Appeal, at the Ceremonial Opening of the Legal Year 2019 on 14 January 2019. It was reported that though the Ceremonial Opening lasted about an hour, a number of Judges and lawyers who are more senior in age looked tired. The Hong Kong Judiciary Annual Report 2018 also pointed out that the Judiciary is constantly faced with heavy workload. I certainly do not have age discrimination, and I also understand the advances in the science of medicine. 1306 LEGISLATIVE COUNCIL ― 7 November 2019

However, but if a person aged 75 or 76 is required to handle a large amount of work requiring meticulous and careful thinking, should we be concerned?

Let me cite a simple example. In handling a rather complicated criminal case that involves a large number of defendants, a judge has to examine all evidence, perhaps 50, 100 or even 150 case files before the trial begins. During the trial, he might have to sit from nine to five for several days up to 100 days. When it comes to the pain of sitting from morning till night, I believe you, President, have personal experience, as we still do not have a Deputy President to share your work.

During the trial, the judge not only has to examine and analyse information in various aspects, but also has to listen to the representations of 10 or more barristers or solicitors, make decision and finally write a lengthy judgment, ranging from a few pages to more than 100 pages. Such a heavy workload may exert certain pressure on a judge who is senior in age. Hence, we must consider very carefully when deciding whether to extend the retirement age of Judges. As a matter of fact, other than making judgments in trials, a judge also has to attend to the administration of the court from time to time. Hence, apart from extending with discretion the retirement age, will the authorities also consider reviewing the workload of Judges whose retirement ages have been extended? Will it consider employing more executive staff to assist the Judges in handling the administrative work of the court?

According to the papers provided by the Judiciary Administration, the standard retirement age of judges in the United Kingdom and New Zealand is 70, Singapore 65, and in Australia, the retirement age is 70 for the High Court, the Federal Court and the Federal Circuit Court, and 65 for the Family Court at federal court hierarchy. As the workload of different courts varies, the relevant retirement ages are set accordingly.

In view of the above mentioned examples, extension of retirement age is not a long-term solution because we cannot extend the term of office and retirement age of Judges indefinitely and this will widen the gap between Judges of different years of seniority. Hence, apart from passing the Bill, I think the Government should also improve the remuneration package of JJOs, reduce their workload, increase the manpower of supporting staff, and at the same time LEGISLATIVE COUNCIL ― 7 November 2019 1307 enhance the training of JJOs so that Judicial Officers can provide appropriate support for Judges.

In the face of the long-standing vacancies of JJOs, the authorities should make greater efforts to attract new blood, adjust the remuneration package and workload, enhance the training of JJOs and improve the promotion ladder, so as to attract more people from the legal profession to join the Bench.

President, another important question is how to improve the recruitment method to attract new blood to join the Bench. This has great implication on the need to extend continuously the retirement age of Judges.

I wish to sum up the experience of other countries and share with Members my views. In accordance with sections 9(1A) and 9(2A) of the High Court Ordinance (Cap. 4), anyone is eligible to be appointed a Judge of the High Court if he is qualified to practise as a solicitor of the High Court and has practised as such for at least 10 years. As a matter of fact, at present, Judges are mainly recruited among senior barristers and the candidates are chosen from major law firms, while few solicitors are appointed as Judges.

The former President of The Law Society of Hong Kong, Mr Stephen HUNG, has pointed out that the Judiciary has the support of many law firms. These law firms allow their lawyers to leave their work to take up the posts of Deputy District Court Judges or High Court Masters for a short period of time. Senior lawyers should be regarded as suitable candidates for Recorders or Deputy Judges of the High Court.

President, please allow me to relate the procedures of appointment of judges in other regions and countries.

In the United States, in considering a candidate for a judge, the authorities will consult Senators, Members of the House of Representatives, federal and state judges, members of the legal community, state governors, state judicial selection panels, citizens and the American Bar Association which will in turn consults judges and lawyers in the candidate's state. The selection process is criticized as too tedious, and such complicated screening and examination procedures may dampen the interest of senior members of the profession in making self-recommendation or accepting nomination. The candidate may also have concerns about his privacy and low remunerations, and the independence of the 1308 LEGISLATIVE COUNCIL ― 7 November 2019 judiciary may be affected. Despite the above concerns, the process manifests the checking and balancing effects among the executive, legislature and judiciary.

In the United Kingdom, in considering candidates for the judges of relevant courts, namely the House of Lords or the Court of Appeal, the authorities have to first consult the Lords of Appeal in Ordinary, Heads of Divisions and Lords Justices of Appeal; as for candidates for the justices of the High Court, the authorities have to first consult the Lords of Appeal in Ordinary, Lords Justices of Appeal, Justices of the High Court, Chairman of the General Council of the Bar, Circuit Leaders and the consultees nominated by the candidate. Although this consultation system is criticized as unsystematic, more information concerning the assessment of the candidates' past professional experience can be collected during the screening process, which can better ensure that the newly appointed judge will more likely make correct judgments in the future.

As for Hong Kong, before appointing a judge, the authorities must first consult senior judges and senior members of the legal profession. Some would criticize the lack of transparency during the process. Therefore, I suggest that the Judiciary clearly explain the recruitment procedures and relevant requirements, and enhance the transparency of the work of judges to give members of the legal profession a better understanding of the information involved. The Judiciary should also invite more experienced lawyers to join the Bench, so as to resolve the longstanding problem of shortage of judges.

President, artificial intelligence is the future trend of the global technological development. A prestigious organization has analysed and listed the top 10 work types that is unlikely to be replaced by artificial intelligence, one of which is lawyers because the work requires debating skills. For the time being it seems quite impossible to develop a robot that can debate with people. A robot can at most process data in courts and for the time being it cannot, like human beings, convince the judge and the jury. It is even not possible to produce an artificial intelligence judge. In view of the unique and irreplaceable quality of the judicial talents, we must cherish our present judicial talents even more.

I so submit and I support the Bill.

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MR PAUL TSE (in Cantonese): President, first of all, I would like to thank Mr LUK Chung-hung for allowing me to take his turn to speak, as I have to leave the Chamber for some time this afternoon.

President, I would like to respond to the point regarding AI judges in Mr Jimmy NG's speech before discussing the subject of this debate. I do not entirely agree that judges are irreplaceable in the future AI world. In fact, I think the legal profession is a highly risky occupation. I certainly do not mean that lawyers can be replaced in advocacy, but in terms of data processing, collection of information and analysis, I believe that AI can save the legal profession and even the judicial sector a lot of time.

President, I will now return to the subject of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"). President, I do not have any written script, but I hope that my speech will be completely relevant to the subject. I totally support the Bill. As the saying goes, "With age comes wisdom", judges too become wiser as they get older. In fact, judges in their 60s or 70s are generally physically fit. They are experienced not only in running, but also in thinking and analysing issues; and they have a good understanding of how things work in life. In particular, when adjudicating cases which involve different values of society, they will have a deeper understanding in their analysis of personalities and incidents that happen in society.

President, the only factor we have to consider is that as a person ages, not only will his physical conditions weaken, his mental capacities will also be undermined. Certainly, for those who often exercise their brains, I will not be too worried. However, there have been judges who easily got tired, but as judges, they have to sit through the entire hearing process. President, you can let your brains rest from time to time; for some Members often talk nonsense. Nevertheless, a judge cannot take such breaks because any witness may say something which may affect his decision at any time. Thus, it is very important for a judge to have the energy required to stay alert.

President, according to our information and as we understand it, since the mandatory requirement for judges to retire at a certain age has created a big problem in judicial manpower, extending their retirement age is naturally a reasonable solution. This trend in society applies to all trades and industries and thus, some people are compelled to postpone their retirement. I learn that at 1310 LEGISLATIVE COUNCIL ― 7 November 2019 present, the average age of bus drivers is some 60 years old, and there are very few new entrants to the trade. Like other societies, Hong Kong has an ageing population and there is a lack of young entrants in various trades and industries.

Nevertheless, there are particular difficulties with the occupation of judges. I have not had the chance to become a judge yet, but from my experience as a barrister and solicitor for many years, I have met many judges and I understand their mindsets. Certainly, I had considered whether I was suitable to be a judge. My conclusion is that not everyone is suitable to be a judge. A school priest once asked me to consider becoming a priest. Not everyone is suitable to become a priest; and likewise, not everyone is suitable to become a judge. It is not just a question of income, but of personality. Can you ask someone who likes to play football to be an umpire? Many will refuse to do so. Barristers advocate in courts which is a very exciting and challenging job. They enjoy a lot of freedom. If they like, they can work late into the night. I remember that in the year when I was serving pupillage, I once worked overnight for eight days. However, I can also decide not to work. I can go on a cruise or go on a tour for a week. Such freedom and lifestyle may not be enjoyed by a full-time judge. Certainly, judges have many leave days too, but they do not enjoy the same freedom on other days as self-employed people do. I believe that is also an important reason why some barristers do not want to join the Bench.

Certainly, income may be a more important factor. Frankly speaking, the annual or daily income of a reputable barrister may far exceed that of a Judge of an intermediate court or even of the High Court. The two professions are incomparable. Nevertheless, why did so many people join the Judiciary in the past? The main reason is that a good actor may want to become a director, a seasoned solicitor or barrister may wish to adjust the tempo of his life and become a judge. Others may become a judge out of a sense of service or mission towards the society. Or, as one gets become older, he may not want to work so hard, he may not want to work overnight, he may not want to be so aggressive, to socialize and to face so many challenges. In comparison, a judge can lead a quieter and more regular life. These are some factors which many people have considered.

Certainly, particularly in the United Kingdom and Australia, people become judges partly because of the high social status. Similarly, judges in Hong Kong also enjoy a very high status, but this feature has been politicized in recent years. Judges, like other public officers and Members, have to face LEGISLATIVE COUNCIL ― 7 November 2019 1311 constant challenges to their status. I will not mention the Legislative Council, as it is known to all that it has been dubbed "Rubbish Council". I hope that judges can continue to command a high status.

President, when a staff member of the court calls "Court", everyone present stands up. Traditionally, there is a similar code in the Legislative Council. However, President, I have noticed that in recent years, when the President of the Legislative Council enters the Chamber, all the democrats will not follow this basic rule of etiquette, which is really regrettable. Certainly, I will not propose to amend the Rules of Procedure for such a reason. Nevertheless, if people show no respect for our system and for the Legislative Council, it is no different from showing no respect for the courts. I strongly disagree to this approach, but I can surely understand the political message conveyed.

President, in order to understand why the Government has proposed to extend the retirement age to solve the problem of shortage of judges or senior judges, we have to understand the causes of the problem. Apart from the factor of income which I mentioned earlier, there are also the factors of status and tempo of life. However, some have suggested that the lack of a revolving door for judges is a problem too. After a person has become a judge, particularly in the District Court or a court of a higher level, he should not consider resuming private practice so to avoid any deferred benefits or conflicts of interest. That is a major principle to follow. Nonetheless, this principle has also discouraged many from becoming judges lest they enter a road of no return. This has complicated the whole matter, since people will always consider the pros and cons of an option.

At present, we certainly hope that judges will remain a professional, independent and rather detached occupation. It is thus understandable why any arrangement to provide a revolving door for judges will be unwelcome. I think with changes in time, a decision in this regard may be made in the future.

President, more importantly, apart from extending the retirement age of judges, we should consider whether there are other ways to solve the current serious manpower shortage problem. President, one of the most important reasons for shortage of judges is that many consider that nowadays, judges can no longer handle problems in a lofty and detached manner. It is inevitable that judges may have to handle political disputes and this may discourage those who find the experience distasteful from joining the Bench. In fact, quality Judicial 1312 LEGISLATIVE COUNCIL ― 7 November 2019

Officers very often wish to lead a quiet life, but that does not mean that they are totally independent. One cannot possibly be totally independent. Judges, being human, have human characteristics. We assume that people with high academic qualifications, such as judges and lawyers, will always attach importance to reason and logic. However, a number of researches have found and confirmed that people basically make decisions with their hearts before processing them in their brains. The wiser the judge or the lawyer, the better he can cover up his own thoughts and values. President, as you are often required to decide who is right or wrong and rule whether any Member has breached the rules, I believe you would understand this point and have such experiences.

Extending the retirement age of judges brings not only advantages, but certainly disadvantages as well. One of the disadvantages is that it will hamper the promotion of younger judges, but this problem is not too serious in Hong Kong. Although the organization structure of judges is rather bottom-heavy, some barristers who are about the same age or has similar qualifications as me have become Judges of the High Court or the Court of Final Appeal. Thus, the promotion ladder of judges is actually not that difficult to climb.

As far as income is concerned, while a number of people in this Council become Members because of money, many more become Members out of a sense of mission. I hope that similarly, people do not become judges because of money.

There is another disadvantage of extending the retirement age of judges. Money is not most important because the expenditure incurred by the Judiciary involves a relatively small sum. Having said that, the more senior a judge, the greater the expenditure will be incurred; but that is a trivial matter after all. The more important problem concerns values. Some people have commented that if there are too many judges aged 60 to 70, they tend to have more conservative values. Judges are basically conservative, and those who are not conservative will not become judges in the first place. The number of avant-garde judges is very small indeed. After a person has become a judge, he would, to some extent, hope to protect the establishment, preserve stability and maintain law and order. Thus, if we keep extending the retirement age of judges, the society will have to decide whether that is an appropriate way forward, and that is surely a question which we can discuss further.

LEGISLATIVE COUNCIL ― 7 November 2019 1313

President, we must also pay attention to the problem of politicization which I mentioned earlier. That is certainly not something new because it is a worldwide problem. Mr Jimmy NG mentioned earlier that before the higher-ranking judges are appointed in the United States, the proposals have to be scrutinized by the Parliament. Members may remember the process of scrutiny undergone by the newly appointed Judge KAVANAUGH of the United States, which was an eye-opener. We do not have such a process in Hong Kong and I believe the Judiciary does not want to introduce anything along those lines, but that is a trend to which we must at least pay some attention.

Mr Kenneth LEUNG mentioned the latest report published by the Foreign Affairs Committee of the Parliament of the United Kingdom, which basically states that it does not wish to see judges of the United Kingdom joining the judicial system of Hong Kong, so as to avoid giving the impression that British judges are involved in the work of an autocratic regime. The word "complicit" was used in the report to describe the relationship between judges of the United Kingdom and the judicial system of Hong Kong. I think this view is rather partial, inappropriate and unfair. In fact, the judicial system in Hong Kong has all along been very sound. Apart from the human factors mentioned by me earlier, the judicial system in Hong Kong has been regarded as one of the best in the world. In fact, the judicial decisions made in Hong Kong have been widely and repeatedly cited by other common law jurisdictions. For example, the case between Mr Albert CHENG and I has often been cited in defamation cases. This shows that the judgments of Hong Kong have attained a very high standard.

Let me mention in passing that under Article 82 of the Basic Law, the Hong Kong Court of Final Appeal may as required invite judges from other common law jurisdictions to sit on the case. This is a practice that Hong Kong has adopted all along. I have raised the point many times at meetings of the Legislative Council that the arrangement shall be made "as required" and not a compulsory arrangement. However, whether incidentally or accidentally, the Chief Justice of the Court of Final Appeal has invited overseas judges to sit on every case to form a five-member panel over the past 22 years.

Such a practice surely has its advantages and disadvantages. One of the advantages is that it will keep Hong Kong more closely in touch with the practices and trends of other common law jurisdictions. However, the disadvantage is that when someone who has absolutely no previous connection with the Hong Kong society comes to Hong Kong to here to adjudicate a case, 1314 LEGISLATIVE COUNCIL ― 7 November 2019 particularly one which involves issues relating to our values, the judgment made may hinder the direction of development of our society. The reason is that a Chinese society may attach more importance to communal values, whereas societies overseas may attribute more weight to individual values. If we go through the precedents on cases concerning new immigrants, benefits of new immigrants, torture claims, etc., we will realize that a different decision may be reached if the case is adjudicated by a judge who is familiar with the local situation and possesses local experience.

President, more importantly, if people are dissatisfied with a decision of the court of final appeal in other countries, they can immediately legislate to invalidate the decision. This is often done in the United Kingdom. However, the constraints of the Basic Law have put Hong Kong in a particularly difficult position. Our judicial decisions have never been altered, and it is difficult to do so under the existing mechanism. Thus, if the Court of Final Appeal sets a precedent which represents very different values, it will be very difficult for the Hong Kong Government to handle. Torture claims is a case in point. Although we long for changes in this area, I am afraid that since the Hong Kong Court of Final Appeal has huge adjudicating powers, judges in effect often legislate, as stated by Mrs Regina IP. This situation is especially serious in Hong Kong and verdicts are particularly difficult to overturn. We should pay attention to this point when considering judicial reform in Hong Kong; otherwise, our judgments will not be able to dovetail with our development trends (The buzzer sounded) …

PRESIDENT (in Cantonese): Mr TSE, please stop speaking.

MR TOMMY CHEUNG (in Cantonese): President, the Liberal Party supports in principle the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), i.e. we accept the Judiciary's proposal to extend the retirement age of Judges and Magistrates.

However, it is worth noting that, under the Bill, the two-tier retirement age system will be retained, i.e. Judges at the Court of First Instance ("CFI") level and above will have a higher statutory retirement age at 70 while Judges and Judicial Officers ("JJOs") below the CFI level will have a lower statutory retirement age at 65.

LEGISLATIVE COUNCIL ― 7 November 2019 1315

According to the Administration, the main reasons for implementing the two-tier retirement age system are: on the one hand, solving the manpower problem of Judges at the CFI level and above; on the other hand, the statutory retirement age should not be set too high so that JJOs below the CFI level will have fewer promotion opportunities. They also do not want to scare the new blood, discouraging them from becoming Magistrates. The Liberal Party understands and supports the proposal.

It is undeniable that there is a serious shortage of JJOs. The Administration has provided the relevant data: as of 31 March this year, there were 62 vacancies in an establishment of 218 posts. Among these posts, only 2 of the 15 vacancies in the Master's Office of the High Court were filled, and the 9 vacancies in the Master's Office in the District Court were all unfilled. Although some of the vacancies could be filled through post swapping, this is still implausible.

It is stated in the Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service ("the Judicial Committee") that "retirement is the main source of wastage among JJOs and the retirement situation may pose challenges to judicial manpower". This situation must really be addressed.

In the course of deliberation of the Bills Committee, we became aware of the situation of manpower wastage from the specific figures provided by the Administration. At that time, the Administration projected that 8 JJOs would retire in the 2018-2019, which accounted for about 4.9%, i.e. less than 5%, of current strength. The number will increase to 14 in the year 2019-2020, accounting for 8.5% of current strength; as for the year 2020-2021, though the number will slightly drop to 12, it still accounts for 7.3% of current strength.

Considering the retirement age figures of JJOs, we found that the situation has reached an alert level. In the year 2018-2019, 6 JJOs reached the statutory retirement age and another 32 JJOs would reach the statutory retirement age within three years (i.e. between 1 April 2019 and 31 March 2022).

Although they can apply for extension of retirement age, their applications are subject to approval on the basis of their respective judicial positions and individual circumstances, and the maximum retirement age can only be respectively extended to 65, 70 or 71, depending on their ranks.

1316 LEGISLATIVE COUNCIL ― 7 November 2019

The Judiciary conducted a review on the statutory retirement ages of JJOs in 2014 and commissioned a consultant to conduct a questionnaire survey from March to May 2016 to collect the views of all serving JJOs at the time, as well as other stakeholder groups. The results reflected that most respondents agreed to extend the retirement age.

After the Judiciary had summed up the results of the review and made reference to the consultant's recommendations, it made a number of recommendations on the statutory retirement age of JJOs. The Administration received their report two years ago and it subsequently introduced the Bill into this Council.

President, a sound judicial system is very important to Hong Kong. The courts at all levels must have sufficient manpower to ensure that the Judiciary can perform its due functions efficiently. Conflicts have recently occurred in our society and the prosecution cases and legal proceedings arising from these conflicts have been overwhelming; thus, the manpower problem needs to be solved as soon as possible.

In fact, many professional sectors in Hong Kong are facing the problem of manpower shortage but the problem is particularly serious in the Judiciary. The main reason is that it is difficult to find suitable candidates for appointment as Judges at the CFI level and above in Hong Kong. Hence, setbacks have been encountered in the appointment of Judges at the CFI level.

Therefore, extending the retirement age for Judges of CFA and the High Court from 65 to 70 will certainly help retain senior and experienced Judges. It will also help attract experienced and outstanding practitioners from the private legal profession to join the Bench.

I understand that even if JJOs have reached the new retirement age, their term of office can be extended by discretion as in the past. As currently specified, the term of office of the Chief Justice and Permanent Judge of the Court of Final Appeal ("CFA") may be extended for not more than two periods of three years and, for the High Court Judges and the relevant Judicial Officers, their terms may be extended for a specified period or periods not exceeding five years in aggregate. In practice, the duration of each extended term for JJOs below the High Court level is normally one, two or three years.

LEGISLATIVE COUNCIL ― 7 November 2019 1317

Under the arrangement for discretionary extension of term of office, the maximum retirement ages for Judges of CFA, CA and CFI under the discretionary extension arrangements may be up to 76, 75 and 75 respectively, and the maximum retirement ages of JJOs below the CFI level may be up to 70.

However, the premise is that, before a discretionary extension of term of office is granted, the JJOs concerned will be required to pass a medical examination to ascertain that they are medically fit for continued employment. If the medical condition of a JJO deteriorates substantively which may affect the performance of judicial duties, even if he/she is on extended term of office or has not yet reached the statutory retirement age, the case may be handled by the Judiciary by convening a medical board. If the JJO is confirmed to be unfit for performing his/her judicial duties, he/she may retire on medical grounds without having to reach the normal retirement age or the completion of the prevailing term.

In addition, according to the policy of the Judicial Officers Recommendation Commission, extension of the term of judicial office should be regarded as exceptional and would not normally be approved unless the following two conditions are met. First, the Judiciary has operational needs, including the need for continuity; and second, the extension would not hinder the advancement of junior officers who are suitable for elevation.

With the above mechanism, the Liberal Party and I agree that, even if the Bill extends the retirement age of JJOs at all levels, the discretionary extension of term of office can be retained.

In fact, such situations rarely happened. As for the precedents of the extension of the term of office of judicial office at the CFA level, since the establishment of CFA in 1997, only the term of one Judge was extended in October 1998, given the special situation that CFA had been established not long ago. The Chief Justice of CFA took into account the interests of the Judiciary, especially the continuity and development needs of the newly established CFA and recommended that the term of the Judge should be extended.

Although Hong Kong has an ageing population, it is also a place where people have the longest lifespan in the world. Many people aged over 60 are still in good health and have work capacity, and they are also willing to continue to work to give full play to their strength. So, it is a win-win solution to allow them to continue to work.

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Nevertheless, the Liberal Party also believes that simply extending the retirement age cannot solve the problem of manpower shortage in the Judiciary. The Administration must actively explore other more effective measures, such as improving the remuneration and conditions of service of JJOs in order to attract new blood and retain existing talents.

The Administration certainly understands that there is such a need. Following the Benchmark Study conducted in 2015, the Judicial Committee recommended an upward pay adjustment of 6% for Judges at the CFI level and above and an upward adjustment of 4% for JJOs below the CFI level.

The Judicial Committee also expressed its support for improving certain conditions of service of JJOs in 2016, including housing benefits, medical and dental benefits, local education allowance, judicial dress allowance and leave passage allowance etc. Specific recommendations were thus made. The proposed pay adjustments and improvement in the conditions of service were later implemented in September 2016 and April 2017, i.e. more than two years ago.

The Liberal Party thinks that the Administration should continue to closely monitor the wastage of Judicial Officers and regularly review their remunerations to attract more legal professionals to join the Bench. I would also like to point out that the Liberal Party has always agreed that the policy of extending the retirement age should not limited to the Judiciary. Back in 2014 when the Administration conducted a public consultation on extension of service of civil servants, the Liberal Party pointed out that the shortage of labour due to an ageing population in Hong Kong was an imminent problem and the Civil Service could not be spared.

At that time, we suggested that the Government should expedite the review of the working lifetime of civil servants. A few years have passed and the Administration finally responded to the demands of the Civil Service last year and extended the retirement age of all civil servants who joined the Service on 1 June 2015 or later. The Administration also made arrangements so that civil servants who joined the Service between 1 June 2000 and 31 May 2015―they will reach the retirement age between 2030 and 2040―will have their retirement age extended. The retirement age of civilian grades and disciplined services grades would be raised to 65 and 60 respectively. This can more LEGISLATIVE COUNCIL ― 7 November 2019 1319 comprehensively solve the retirement problem of incumbent civil servants and enlarge the workforce. Even though the relevant progress is slower than expected, we absolutely support the arrangement.

In conclusion, it is expected that there will be a huge pressure on the working population in Hong Kong from 2030 onwards. The Administration should retain talents amidst the continued reduction in the working population; it should seek to retain not only judges but also various professionals.

President, I so submit.

PRESIDENT (in Cantonese): I now suspend the meeting until 2:30 pm.

1:23 pm

Meeting suspended.

2:30 pm

Council then resumed.

PRESIDENT (in Cantonese): Mr Vincent CHENG, please speak.

MR VINCENT CHENG (in Cantonese): President, I am speaking in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") to extend the retirement age of Judges and Judicial Officers ("JJOs"). The Legislative Council has been discussing the matter in the past as manpower shortage has been the long-standing problem encountered by the Judiciary. According to the information provided by the Judiciary to the Bills Committee, as of 31 March, the total establishment of JJOs at various levels of court was 218, but the strength was only 156, which means that 62 posts were unfilled and the vacancy rate was as high as 28%. The Court of Appeal ("CA") and the Court of First Instance ("CFI") of the High Court had a total of 8 unfilled posts; the High 1320 LEGISLATIVE COUNCIL ― 7 November 2019

Court Masters' Office had 15 vacancies but only 2 were filled, whereas all the 9 vacancies of the District Court Masters' Office were not filled. These figures precisely show that there is an acute shortage of JJOs in Hong Kong.

On the other hand, the Judiciary is also facing a persistent problem of wastage of judicial manpower, which includes a wave of retirement of JJOs. Coupled with the difficulties in recruiting judges at various levels of court, the shortage problem of judicial manpower has been further aggravated. According to the Report on Judicial Remuneration Review 2018 issued by the Standing Committee on Judicial Salaries and Conditions of Service, the anticipated retirement of JJOs was 8 in 2018-2019, surging to 14 in 2019-2020, which accounts for 8.5% of current strength. In other words, the wave of retirement is bound to exacerbate the problem of shortage of judges.

Therefore, the Democratic Alliance for the Betterment and Progress of Hong Kong has been calling for an extension of the statutory retirement age of JJOs to alleviate the shortage of judicial manpower, while continuing to make good use of the accumulated experience and expertise of serving judges. This is very important to Hong Kong as a common law jurisdiction.

President, the Bill proposes to extend the statutory retirement age of JJOs, which include extending the statutory retirement age for Judges at the CFI level and above from 65 to 70, extending the statutory retirement age for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the Magistrate level from 60 to 65 as well as introducing discretionary arrangements for extension of term of office, transitional arrangements and pension-related matters. In my opinion, the proposals are worthy of support as they can help alleviate the problems highlighted by me just now.

Furthermore, I also believe an extension of the statutory retirement age will enable the Judiciary to better attract quality legal talents, particularly to attract private legal practitioners with rich practical experience to consider joining the Judiciary at their next stage of life to serve the community in a different way. As a matter of fact, the retirement age of the Justice of the Supreme Court of the United Kingdom and Judges of the Federal Courts of Canada and Australia is also 70, hence extending the statutory retirement age for Judges at the CFI level and above from 65 to 70 will bring Hong Kong's Judiciary on a par with that of other common law jurisdictions.

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President, in order to improve the manpower problem of the Judiciary, in addition to extending the statutory retirement age, I believe the Administration and the Judiciary Administration should also introduce other measures, such as enhancing the remuneration package and stepping up recruitment efforts, so that the Judiciary can attract more judicial personnel. It would be absolutely undesirable if an extension of the retirement age still fails to make up for the shortfall of JJOs and leads to longer waiting time for cases. This is also the last thing that members of the public would wish to see.

Notwithstanding that, what is more worthy of our attention is an upsurge in the number of civil cases in recent years, especially the large number of judicial review cases arising from non-refoulement claims, which has plagued Hong Kong and developed into a livelihood issue over the past few years. In recent years, crowds of people flocked to Hong Kong and lodged non-refoulement claims. If they are not satisfied with the result of the Immigration Department's screening of their claims, they can lodge administrative appeals to the Torture Claims Appeal Board ("the Appeal Board"). In case an appeal is rejected by the Appeal Board, the claimant will usually apply to CFI for leave for judicial review so as to seek more support. If the application for leave is rejected, they may further lodge an appeal to CA and even CFA. This poses a huge challenge to the workload of the Judiciary, especially the High Court and CFA.

Let us take a look at the statistics on non-refoulement claim cases submitted to the different levels of court. The number of applications for leave in relation to non-refoulement claims to be handled by CFI of the High Court rose from 60 in 2016 to 1 006 in 2017, which is 16.7 times the number in 2016, and surged to 2 851 in 2018 (that is, last year). The number has increased by 46 times in the past three years, which is pretty phenomenal. CFA, on the other hand, also needs to handle a large number of applications for leave in relation to non-refoulement claims. While zero cases had been recorded in both 2016 and 2017, CFA has to handle 65 such cases from 2018 onwards.

In the face of an upsurge of cases, the waiting time for court hearing will certainly be affected. According to the information provided by the Judiciary, the Civil Running List of CFI of the High Court shows that the average waiting time from not-to-be-warned date to hearing was 13 days in 2016, 16 days in 2017, and then significantly increased by more than a double to 38 days in 2018, which is longer than the target of 30 days.

1322 LEGISLATIVE COUNCIL ― 7 November 2019

Worse still, many services provided by the court at different levels also failed to meet the targets. For example, the average waiting times for summonses in the Magistrates' Courts were 67 days in 2016, 65 days in 2017 and 76 days in 2018. The average waiting times of these three years were all longer than the target waiting time of 50 days, and there are signs of further increase.

President, I believe there is public expectation for improvement in the future, and it is hoped that the waiting time for cases could be brought back within the target range. As I am aware, the Judiciary has proposed to introduce modest legislative amendments so as to facilitate a more efficient handling of non-refoulement claims, for example, allowing more cases to be determined by CA comprising two rather than three Judges. In view of the tight judicial manpower, more flexible deployment of manpower would be a viable option, but I consider it more important to secure additional judicial resources and manpower, and a comprehensive review of the strategy of handling non-refoulement claims should be conducted by the Government.

President, another matter of equal concern is that the courts are now facing a lot of complicated criminal cases. The demonstrations arising from the opposition to the proposed legislative amendments have been going on for five months. So far, more than 3 300 people have been arrested and many of them are involved in illegal assemblies, rioting or unlawful acts of violence. As members of the public and parents, we certainly feel very sad and disheartening, but the incident of opposition to the proposed legislative amendments reflects that our society is facing many deep-rooted conflicts and a myriad of problems that need to be resolved in a progressive manner. The immediate priority is therefore to expeditiously stop violence and curb disorder.

At present, cases relating to the opposition to the proposed legislative amendments are in court proceedings, and different sectors of the community are concerned if the large number of cases can be dealt with promptly and effectively without compromising the quality of justice. In an earlier interview with the media, Former Permanent Judge of CFA Henry LITTON said that the court must increase manpower to deal with the large number of additional cases, and special frameworks and formalities had to be put in place to cope with the extraordinary situation at present. Also, in an earlier interview with the media, former Director of Public Prosecutions Grenville CROSS highlighted that it was most vital not to have backlog of cases, and cases relating to the demonstrations must be heard as soon as possible. If the number of demonstrators to be prosecuted continued to increase, additional posts of Magistrates and Judges should very LEGISLATIVE COUNCIL ― 7 November 2019 1323 likely be created to ensure that all these cases would be dealt with within an effective time frame, so that judicial credibility could be maintained and all suspects would be fairly tried.

President, I believe it is the general expectation of members of the public that the Judiciary will strive to handle cases promptly and effectively as far as practicable, and ensure that all cases, be they criminal or civil, will be handled fairly in strict accordance with the law. If there is a huge backlog of cases and it takes a long period of time for formal hearing and sentencing to be arranged, this will inevitably adversely affect people's perception of Hong Kong's judicial system.

Let us look at how similar cases were handled in other common law jurisdictions. In the United Kingdom, a large-scale social riot broke out in August 2011 and lasted for four days. According to BBC news, by 11 August, the British authorities had …

PRESIDENT (in Cantonese): Mr Vincent CHENG, please return to the subject of this debate.

MR VINCENT CHENG (in Cantonese): Alright, I would like to talk about the problem of manpower shortage. By that time, a large number of relevant cases had been dealt with and the special court operating round the clock is worthy of our reference. Above all, the trials must be fair and just.

President, last of all, there is no argument that the rule of law and judicial independence are the core values of Hong Kong and constitute the cornerstone of Hong Kong's success. The courts of Hong Kong must exercise judicial powers independently with strict adherence to the law. I trust that when the Bill is passed, it will help maintain the high standard expected of JJOs. I also hope that after the passage of the Bill, the Judiciary will step up its recruitment, continue to monitor the waiting time for cases at all various levels of court, and effectively handle more cases through measures such as improving the scheduling system and appropriate allocation of judicial resources.

President, I so submit.

1324 LEGISLATIVE COUNCIL ― 7 November 2019

MR LUK CHUNG-HUNG (in Cantonese): President, I speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"). I believe extension of retirement age of Judicial Officers will, to a certain extent, alleviate the manpower shortage and succession gap in the Judiciary and maintain stability in its service.

A number of countries and regions have extended the retirement age of judges. Australia has extended the retirement age to 70; Canada to 75; and Supreme Court Justices in the United States even have life tenure which enables judges to choose when to retire. Extension of retirement age of judges is surely related to population ageing. Nowadays, the silver-haired generation is smart and healthy. In particular, if some wise old judges have to retire too early, their experience, talents and wisdom will be wasted which can be described as a loss to society.

Many countries and regions around the world are faced with the problem of population ageing and Hong Kong is no exception. According to the population projections of the Census and Statistics Department, the percentage of senior citizens in Hong Kong will increase from 16.6% in 2018 to 31.1% in 2036 and their number will further increase to 2.59 million in 2066, representing 36.6%, i.e. more than one third of the total population. In other words, for every three persons in Hong Kong, there will be more than one senior citizens aged 65 or above. According to the definition given by the World Health Organization of the United Nations, when the ratio of persons aged 65 or above to the total population of a society reaches 7%, it becomes an "ageing society"; and when the ratio reaches 14%, it becomes an "aged society". Thus, Hong Kong is an "ageing society" at present and it will formally become an "aged society" in the future as the number of senior citizens increases.

An ageing population will affect society in many ways. Hence, the Hong Kong Federation of Trade Unions has often expressed its wish for a comprehensive and non-means-tested retirement protection. With an ageing population, the labour market will be the first to bear the brunt.

In fact, in the Second Reading debate, I would like to analyse the issue of retirement from a social perspective before examining it from the angle of our judicial system. Yet, I am worried that the President may say I have digressed from the subject. First, an ageing society will deal a blow to the labour market and cause manpower shortage. Thus, extension of retirement plans have been introduced in many trades and industries.

LEGISLATIVE COUNCIL ― 7 November 2019 1325

Let me point out that an increase in the elderly population does not necessarily bring about negative effects. On the contrary, since elderly persons are more experienced and knowledgeable; if their manpower is put to good use, it will do all good and no harm to society. As the Chinese saying goes, "Elderly persons are the treasure of a family". Wisdom often comes from people with rich experience in life. Certainly, a judge's experience in adjudicating cases and his power of analysing different precedents and issues of society has to be gained in time. However, the problem of a growing elderly labour force and a dwindling young labour force has inevitably caused changes to the demand and supply of manpower in some jobs, resulting in manpower shortage …

PRESIDENT (in Cantonese): Mr LUK Chung-hung, I know you are an expert in respect of the demand for human resources …

MR LUK CHUNG-HUNG (in Cantonese): As a Member of the Labour Constituency, I will naturally discuss the subject from a social perspective …

PRESIDENT (in Cantonese): … but I hope you will return to the subject of this debate and do not digress too far.

MR LUK CHUNG-HUNG (in Cantonese): That is right, I understand your point. I was only speaking from a social perspective first. Thank you for your reminder, President.

The Government should squarely face the problem of an ageing population and make good use of the manpower of our senior citizens. The Government should not call this measure employment of the elderly, but "employment of the silver-aged" or "employment of the silver-haired generation" instead. Employment of elderly judges is one example. Let me cite another example. There is a very famous social enterprise, I do not know if the President has ever visited. I am talking about the restaurant Gingko House run by some senior citizens. At present, it has employed 200 staff, 80% of them aged 60 or above. The food provided is fine. President, I recommend that you patronize this social enterprise if you have time. The restaurant has provided employment opportunities to many senior citizens for more than 10 years. The chefs, who have decades of cooking experience, have produced particularly authentic and delicious dishes. I think experience can only be passed from generation to 1326 LEGISLATIVE COUNCIL ― 7 November 2019 generation over the years. Experience of the chef is very important in the catering industry and the more "senior" waiters and waitresses also tend to be very patient in serving customers. I cite this example to illustrate that experienced old folks can really make great contributions when they are employed in various trades and industries.

There are similar examples in Taiwan and elsewhere. So long as the senior citizens are healthy and they prefer to stay in employment, they should be given a chance to make contributions in their twilight years. Sometimes, old folks want to work not just to make a living. In general, they do not need to financially support their wives and children any more; thus, they do not merely work to earn a living, but to make contributions. Certainly, we will not force our senior citizens to work. With regard to extending the retirement age of judges, the financial factor may not be the only reason since judges have very sound financial conditions. The extension is to give a choice to judges. Judges are clear-minded and sharp-witted; it will really be a waste if they are compelled to retire.

In Hong Kong, there is no statutory retirement age. The retirement age of different occupations is set according to the nature of the job or the practice of the trade. In recent years, some employers have asked their employees to postpone their retirement to alleviate manpower shortage, while other employees have voluntarily made such requests for different reasons. Employers certainly hope that their experienced staff members can continue to work for them …

PRESIDENT (in Cantonese): Mr LUK Chung-hung, I am reminding you again that this Council is now holding the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019. Please return to the subject.

MR LUK CHUNG-HUNG (in Cantonese): President, I understand. Extension of retirement age gives people one more option. While enterprises can have more choices in terms of recruitment, organizations or trades can retain their elderly employees to make further contributions. This principle applies to judges as well as members of the disciplinary forces. The Government has already extended the retirement age of civil servants. For members of the disciplinary forces, the retirement age has been extended from 55 to 60; and clerical staff members can even choose to retire at the age of 65. That is the LEGISLATIVE COUNCIL ― 7 November 2019 1327 general trend of society. It can be said that the Judiciary proposes to extend the retirement age of Judicial Officers to dovetail with the general trend of society. The arrangement is very reasonable.

In addition, the proposed extension of retirement age of judges can cater for the characteristics of judges. As we all know, many judges in the Judiciary are taken up by barristers who were once in private practice. For those lawyers, particularly senior counsels, who have the calibre to become judges, their incomes from private practice very often exceed the remunerations of judges or magistrates of the Judiciary. Thus, they often choose to engage in private practice in their middle age. This decision is not just due to financial consideration, but the different challenges that one has to face in private practice since they can choose to take up different types of cases. Anyway, when some senior counsels become older, they may choose to become judges to serve the community or take up new challenges. Furthermore, for the sake of fairness, the laws prohibit those who have acted as judges from resuming private practice. Thus, many in the legal profession will join the Judiciary only when they become older. If they have to retire according to the statutory age limit soon after they joined the Judiciary, their experience will really be wasted. Thus, extending the retirement age of judges will help to attract more legal professionals to join the Bench.

Extending the retirement age will promote better utilization of manpower. As we all know, Hong Kong is now undergoing a stormy period. Disturbances arising from the opposition to the proposed legislative amendments have already lasted for more than five months and have really challenged the bottom line of our rule of law. Many people have totally disregarded the rule of law and wilfully expressed their so-called political demands by means of violently destructive and charging acts. No matter what their demands are, employing any violent and unlawful means to further these ends is surely wrong in the free society of Hong Kong.

How can the rule of law be enshrined? First, we must certainly rely on the law enforcement agency to enforce the law, and the Police is mainly responsible for such work. Second, we must rely on the prosecuting authority, namely, the Department of Justice ("DoJ"). According to past experience, the trial of some cases related to Occupy Central could only be conducted after four to five years, which is unsatisfactory. Owing to shortage of manpower in the Police and DoJ, there are not enough staff members to collate evidence and handle other work after a suspect is arrested by the Police. Thus, the waiting time for a case to be heard in court has become longer and longer, the situation is 1328 LEGISLATIVE COUNCIL ― 7 November 2019 particularly serious for many criminal cases which have aroused huge controversy and great concern in society.

Thus, I think there is a need to uphold the rule of law in various ways. I have all along supported the Police in strictly enforcing the laws and I often urge DoJ to increase its manpower. This certainly relates to the establishment of the civil service. If there is an increasing manpower in the Police and DoJ to handle the cases, but huge backlog of cases in court still remains, the waiting times for court hearings will become longer and the backlog still cannot be cleared. If the waiting time for hearing is too long, it will affect the fairness of trials, for some witnesses may forget the details of the case and that will undermine the strength of their evidence. Recently, some members of the public has conveyed this concern to me.

In the disturbances, riots and other incidents arising from the opposition to the proposed legislative amendments, more than 3 300 people have been arrested so far, which is many times more than the number arrested during Occupy Central. Defendants in the Occupy Central incident waited four to five years for the trial, and in the current disturbances, more than 3 000 people have been arrested so far. I certainly hope that violence will completely vanish tomorrow; if so, the number of people arrested will not increase any further. That is a situation much desired by the general public. I really hope that blessings will be bestowed upon Hong Kong and all sectors of society will join hands to combat violence. Certainly, not all of the 3 300 arrestees will be prosecuted because prosecution will only be instituted with sufficient evidence and grounds. Even if there are no more unlawful and violent incidents after the arrest of those 3 300 persons and no other people will be arrested, the Judiciary will still take a lot of time to complete the trial of all the cases involved.

PRESIDENT (in Cantonese): Mr LUK Chung-hung, this is the last time I remind you to return to the subject of this debate.

MR LUK CHUNG-HUNG (in Cantonese): President, I would like to ask if the trial of the outstanding cases have to wait till 2047 owing to the shortage of judges.

Thus, many people have suggested that special courts should be established to conduct fair and independent trials. In handling cases resulting from disturbances arising from the opposition to the proposed legislative amendments, LEGISLATIVE COUNCIL ― 7 November 2019 1329 the laws should be strictly and impartially enforced to deal with the violent acts committed by arrestees regardless of their stances, and the courts must conduct fair trials.

Recently, the Police have re-employed retired police superintendents to provide supporting service. In fact, this approach is very similar to the idea of extending the retirement age of judicial officers. Re-employment of retired judges can help to speed up the work flow, safeguard judicial justice, and alleviate the burden of incumbent judges and other members of the Judiciary. Certainly, I understand that this measure will not completely solve all problems, and other ways of increasing judicial manpower have to be considered. Nevertheless, extension of retirement age will indeed help to increase the number of judges to handle the large number of complicated cases at present, so as to uphold the rule of law and justice in our society. Thank you, President.

MR WILSON OR (in Cantonese): President, I speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), which seeks to extend the retirement ages of Judges at the Court of First Instance ("CFI") of the High Court level and above, Magistrates and other Judicial Officers for five years.

President, in the face of an ageing population, many countries and jurisdictions have already taken the move to extend retirement ages. A research also shows that most of the overseas jurisdictions have retirement ages higher than those in Hong Kong. For example, the United Kingdom and New Zealand have a retirement age of 70; and in Australia, the retirement age is 70 for the High Court, the Federal Court and the Federal Circuit Court at federal court hierarchy. The retirement ages of Judges of the above jurisdictions are all higher than those of serving Judges and Judicial Officers ("JJOs") in Hong Kong.

President, as you may recall, on 14 January 2019, Mr Geoffrey MA, Chief Justice of the Court of Final Appeal, highlighted in his speech at the Ceremonial Opening of the Legal Year 2019 that Hong Kong had unrealistically low retirement ages for judges by comparison with other common law jurisdictions. I would thus reiterate my support for the Bill, hoping that the proposed measures therein can effectively retain bright and professional JJOs for Hong Kong to maintain a credible legal environment and a sound judiciary.

President, undeniably, the Bill is proposed against the background that Hong Kong has to rely on talented people to move forward at this period time. Different sectors, including the judicial sector, have gradually reached a 1330 LEGISLATIVE COUNCIL ― 7 November 2019 consensus over the importance of retaining, developing and absorbing talents. Although the Government has strengthened its policies on the importation of talents in recent years, legal talents are particularly scarce as compared to talents in other fields. Also, the Judiciary is very demanding in terms of professionalism when looking for legal talents with high personal calibre. Only suitable and qualified legal practitioners will be appointed to join the Judiciary as JJOs.

President, the establishment and strength of JJOs at various levels of courts in Hong Kong as at 31 March 2019 reflects that among a total of 218 posts at different levels of courts, there were 62 vacancies, representing a vacancy rate of 28%. In particular, 40 out of 108 Judicial Officers posts at the Magistrates' Courts and equivalent levels were vacant, with the vacancy rate being high up to 37%. High vacancy rate is in itself a daunting problem, but if crucial JJO posts are left vacant for a long time in the Judiciary, such persistent vacancy will become another challenge to Hong Kong. We will then have a big question mark as to how our Judiciary can continue to serve the local community and people efficiently. Because of this question mark, I decide to support the Bill proposed by the Government.

President, I have learnt from the papers that the Judiciary has been and will continue to conduct open recruitment exercises at different levels of courts, namely, CFI Judges, District Judges and Permanent Magistrates, on a regular basis with a view to filling existing and anticipated judicial vacancies at these levels of court. Meanwhile, the Government will continue to enhance the remuneration and conditions of service for JJOs, including housing benefits, medical and dental benefits, local education allowance, judicial dress allowance and transport services for leave travel, so as to attract legal talents and retain serving Judicial Officers. President, we should, however, note that the huge shortage of Judicial Officers persists given there being a large number of law graduates in Hong Kong every year. On this issue, apart from improving coordination among the relevant organizations and departments, the Government should actively explore the possibility of providing a better promotion ladder and career path to serving JJOs, and strengthen its efforts to attract outstanding private legal practitioners to join the Bench.

President, I have just said that, apart from extending the retirement ages of serving JJOs, the Judiciary should also work hard to recruit new blood for different departments. Yet, I do not think the Judiciary should increase manpower by relaxing its recruitment criteria for the right talents as that will compromise quality and professionalism. While it is important to have talents filling crucial JJO vacancies, the overall service quality of our Judiciary and LEGISLATIVE COUNCIL ― 7 November 2019 1331 judicial system must be guaranteed. This is the consensus that we have to uphold.

President, I would like to speak on the advantages brought by the legislative amendment. According to the Report on Judicial Remuneration Review 2018 published earlier, retirement is the main source of wastage among JJOs and the retirement situation may pose challenges to judicial manpower. After the passage of the Bill, the manpower shortage of the Judiciary at different levels of courts will certainly be eased. In fact, the purpose of the Bill is to maintain the operation efficiency and effectiveness of the Judiciary, which, as I believe, is what Hong Kong people wish to see.

President, experienced senior JJOs are talents indispensable to Hong Kong. As I often say, by extending the statutory retirement ages of serving JJOs, we can maintain the size of our existing legal talent pool, thereby allowing time for serving JJOs to enrich their judicial experience in the Judiciary and presenting them with more promotion opportunities to serve Hong Kong with their remarkable abilities. I also suggest that the Chief Secretary should give time and opportunities to the relevant departments of the Judiciary to widely absorb high quality legal practitioners to join the Judiciary and contribute more to the healthy development of our Judiciary and judicial system.

President, courts play a vital role in upholding of the rule of law in Hong Kong. In the past, when handling a number of controversial cases, the courts always maintain the fair administration of justice through open hearing. The extension of statutory retirement ages of serving JJOs is hence an effective way to boost public confidence in the current Judiciary and serving Judicial Officers and, more importantly, stabilize the judicial manpower to expedite the hearing of cases. President, according to the Hong Kong Judiciary Annual Report 2018, in respect of criminal cases, the waiting time from first appearance of defendants in District Court to hearing was 187 days. President may ask: How is it related to the extension of retirement ages? They are related because the waiting time just said was well above the target of 100 days. Moreover, in recent years, the courts have had a huge backlog of judicial review cases, as well as many pending appeal cases on torture claims which are of public concern, serving JJOs are thus seriously overloaded. President, I hope the Bill, if passed, will allow JJOs more room and time to handle their work.

President, as we notice, the disturbances arising from the opposition to the proposed legislative amendments have gone on for five months, and the significant increase in violent protests has led to the arrest of more than 3 300 1332 LEGISLATIVE COUNCIL ― 7 November 2019 people. Earlier on, Mr Henry Denis LITTON, former Permanent Judge of the Court of Final Appeal, said in a television interview that all those participating in vandalism were criminals and the courts were in need of additional manpower to deal with this large number of new cases. President, the rule of law is the cornerstone of Hong Kong, with the fundamental principle being that offenders must be held accountable for their wrongdoings. The general public are furious about the violent acts of rioters but dare not speak out. They can only put their hope on the courts to bring rioters to justice. Otherwise, who will obey the law if there is no consequence for offenders? I therefore hope that, by supporting this Bill, we can give JJOs more time to handle the cases.

President, the Bill has also provided a mechanism for serving JJOs to opt for the new retirement arrangements. If a JJO does not make his choice in the Opting Period (regardless of whether he may be elevated to a higher position during that period), he will have to adhere to the existing retirement arrangements. I think this mechanism is friendly and legitimate because, nowadays, people are still healthy and smart at the age of 60. Under this friendly mechanism, serving JJOs should have the full right to choose.

However, President, how well do the public accept the Bill? I have carried out a simple opinion poll in this regard. The kaifongs interviewed told me that they agreed with the proposals in the Bill, which is supported by the Hong Kong Bar Association, The Law Society of Hong Kong, the Standing Committee on Judicial Salaries and Conditions of Service and the Panel on Administration of Justice and Legal Services of the Legislative Council. The proposals in the Bill have been fully discussed by the aforesaid parties and Hong Kong people. A professional consultant has also analysed their financial and other implications, saying that the Bill will not affect the current binding effect of the existing provisions of the relevant Ordinances.

President, from the above, we can see that the proposals in the Bill are in line with the current needs of Hong Kong. These proposed amendments are also sensible, reasonable and legitimate, manifesting the core values of Hong Kong.

President, I repeat once again that the Democratic Alliance for the Betterment and Progress of Hong Kong and I support the passage of the Bill to facilitate the continuity of our Judiciary, traditional core values and judicial system.

Thank you, President. I so submit.

LEGISLATIVE COUNCIL ― 7 November 2019 1333

MR SHIU KA-FAI (in Cantonese): President, today we are discussing the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"). Hong Kong has all along been ranked among the top in the world in terms of the rule of law. According to the World Justice Project, an independent American organization, Hong Kong is ranked the 16th for its overall rule of law performance in 2018-2019. The United States is ranked the 20th, after Hong Kong. Since Hong Kong upholds the rule of law, many people around the world like to come to work in Hong Kong.

On this occasion, why do we have to extend the retirement age of judges and judicial officers? Simply put, the retirement age for Judges and Judicial Officers at the level of High Court and above will be extended from 65 to 70, whereas that of those below the High Court level will be extended from 60 to 65. I trust these judges need not worry about clothing or food. Why should we extend their retirement age then? I believe it has to do with the time required by the Judiciary for processing cases. At the beginning of this year, the Hong Kong Police Force reported to us that the current crime rate in Hong Kong was actually the lowest over the past 42 years. Hearing that, one may wonder, given that the present crime rate is the lowest over the past 42 years, why is it necessary to extend the retirement age of judges? In my opinion, there are two main reasons: first, despite such a low crime rate in Hong Kong, Hong Kong has been plagued by the problem of bogus refugees over the past few years. I know the Government has expedited the procedures to handle the backlog of some 10 000 torture and non-refoulement claims accumulated in Hong Kong over the past period. Presently, there are about 6 000 cases pending judicial review and 4 000 awaiting appeal. The total number is about 13 000. Among them, 1 400 people are under detention, destined for repatriation.

President, the number of cases pending judicial review alone has already reached 6 000. I know that last year, just 1 000-odd applications for leave for judicial review took one year to process. There are still 6 000 cases of judicial review and 4 000 cases of appeal pending. After appeal, they may then apply for judicial review. That means there are 10 000 cases in total. In other words, this process alone may already take six to seven years.

Dr Fernando CHEUNG is not present. Many people know that Dr Fernando CHEUNG especially cares about bogus refugees. His compassion is not only demonstrated in Hong Kong but also extends to the whole world. In 1334 LEGISLATIVE COUNCIL ― 7 November 2019 some of his remarks, he expressed his wish to help refugees to fight for more benefits. He also wished to fight for their right to work in Hong Kong, etc. President, why am I saying this? These messages may show his good intention, but is he in fact doing a service? To Hong Kong, this is absolutely a disservice. The remarks he made in the past may be distorted overseas, misleading people in other countries into thinking that they can work in Hong Kong. Consequently, many people will try to sneak into Hong Kong illegally. Why were so many people stranded in Hong Kong in the past? Because such remarks led to so many cases in Hong Kong.

We support the extension of the retirement age for Judges because there is currently a large amount of work to undertake, right? This is one way of supporting them. Another way of supporting them is to reduce their workload. The issue of bogus refugees mentioned just now is one of the causes for their heavy workload. But those cases already exist, and I believe there is no way to cut them down.

As regards the other cause, need I say more? The turmoil stemming from the amendment exercise of the Fugitive Offenders Ordinance in Hong Kong has persisted for more than four months now. Many different violent incidents keep happening in society, and many people of Hong Kong, particularly the young, have been arrested and prosecuted. I know that to date, about 3 000 people have been arrested by the Police. Such cases have currently accumulated to some 3 000. Does the legal system in Hong Kong have such capacity to process them all? President, if we do not stop the violence and curb the disorder expeditiously, there will in fact be no way to process so many cases even if the retirement age of judges is extended to 100, let alone 70. Hence, our priority task is definitely to stop the violence and curb the disorder.

Some people say that heavy penalties are necessary in times of disorder. I have heard some people ask whether it means requiring the Police to step up efforts in law enforcement. Actually, stepping up efforts in law enforcement is only the second step. The most important point is to make people know that there will be a consequence for breaking the law, and the consequence may be imprisonment. But President, during the course, I saw that many young people or ordinary citizens might regard what they did outside as merely masking their faces, uttering a couple of words while walking past or holding an umbrella, which was no big deal. President, I wish to say that we are duty-bound to remind the people of Hong Kong that it is very easy for them to break the law LEGISLATIVE COUNCIL ― 7 November 2019 1335 inadvertently. What should we do such that it will not be so easy for members of the public to break the law inadvertently? We should remind members of the public that they have actually violated certain laws …

PRESIDENT (in Cantonese): Mr SHIU Ka-fai, please come back to the question of this debate.

MR SHIU KA-FAI (in Cantonese): Some of my friends have told me that it seems the Court has failed to achieve this effect. For example, earlier on, someone removed a national flag from the flag pole, defaced it and damaged it in Sha Tin. In the end, he was only sentenced to 200 hours of community service by the Court. It is not that there was no precedent. Mr KOO Sze-yiu has burnt the national flag and the regional flag three times before. In one of the cases, he was sentenced to imprisonment of nine months, reduced to four and a half months after appeal. In the other two cases, he was sentenced to imprisonments respectively of six months and two months. The sentence meted out in all the cases was imprisonment. Why was the other person only given a community service order? What message would this give society? President, I do not quite understand it.

Besides, now we often see on the television violent scenes of the so-called "vigilante beating", when people holding a different political view are assaulted or premises vandalized. During such events, some people took the initiative to assault others or wreck damages. These people have obviously broken the law. But President, I found that some people often carried umbrellas in their hands. Every time such crime took place …

PRESIDENT (in Cantonese): Mr SHIU Ka-fai, how is your argument relevant to the Bill under consideration by the Council now?

MR SHIU KA-FAI (in Cantonese): It is relevant, President. Now we need to extend the retirement age for Judges on the grounds of heavy workload. If such work can be reduced, there will be no need to extend the retirement age of judges. If there are not so many cases, it will not be necessary to extend the retirement age of judges, will it? However, there are currently a large of number of cases in Hong Kong. The reason is that many people of Hong Kong do not know they 1336 LEGISLATIVE COUNCIL ― 7 November 2019 have broken the law. Let me cite an example. Just now I mentioned umbrellas. When someone was going to resort to "vigilantism" or vandalize shops or automatic teller machines, they would open their umbrellas. What was the purpose?

President, section 89 of the Criminal Procedure Ordinance (Cap. 221) stipulates that any person who aids, abets, counsels or procures the commission by another person of any offence shall be guilty of the like offence. In other words, people who opened their umbrellas might have committed the same offence. What was the offence? President, if it was criminal damage, that means section 60(2) of Chapter 200 of the Laws of Hong Kong …

PRESIDENT (in Cantonese): Mr SHIU Ka-fai, I think your speech is still digressing from the question. Please come back to the question of the Second Reading debate on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019.

MR SHIU KA-FAI (in Cantonese): President, I was explaining the logic just now. Why do we need to extend the retirement age for judges now? Originally, the crime rate in Hong Kong is the lowest over the past 42 years. Now it is necessary to extend the retirement age for Judges because we know that a large number of cases will be heard. President, many people of Hong Kong are not aware that they have broken the law. Has anyone given them any reminder? Did the Government do so?

Just now I mentioned youngsters who opened umbrellas. They thought they had merely opened umbrellas to block "vigilante beating", but they had in fact violated the law. If someone was beaten to death, they had conspired to commit murder. For arson, according to section 60(2) mentioned by me just now, the penalty is life imprisonment. President, how would it be irrelevant? Who will give them any reminder? The executive said nothing. The legislature said nothing. Should we wait for the Court to bring it up? By the time they reach the Court, a sentence will be meted out. Why have so many problems emerged in Hong Kong now? Some people keep dissuading the conduct of peaceful demonstrations, but young people arrested for breaking the law are not their own children. Who can give them some reminders? On which platform can we do so? We happen to be considering this Bill. Shall we not take the opportunity to talk about it? LEGISLATIVE COUNCIL ― 7 November 2019 1337

Sorry, President. Please pardon me for speaking too loudly just now. I am really grieved by the arrests of young people in Hong Kong who are unaware that they have broken the law. President, some 3 000 people have been arrested. How much manpower does the Court need to hear the cases? If the situation persists, even if the retirement age for Judges is extended to 100 or 150, the trials can never be completed, let alone extending it to 70. Hence, we must make it clear to the young people that they are indeed breaking the law. Their future will be completely ruined. Emigration is out of the question. Neither can they join the civil service. If they wish to work in a big company, they will be asked whether they have any criminal records, President.

PRESIDENT (in Cantonese): Mr SHIU Ka-fai, I understand you hold great expectations of young people and wish to give them advice. But this debate is about the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019. If you stray too far from the question, I will ask you to stop speaking.

Please continue.

MR SHIU KA-FAI (in Cantonese): President, I was just elaborating on the logic just now. On question of whether I support the extension of the retirement age of judges, actually, if there is no crime, we should just let them travel around the world and take a good rest when they reach the retirement age. They have worked for such a long time. Why are we still asking them to continue to work? In fact, it is because we have not done our job properly. Some people continue to incite young people to come out. Why should we not give them a reminder? President, another point is, now many people in society would make specious statements and often circulate misinformation to others. Is there no need to bear any responsibility for releasing fake news on the Internet? They keep stirring up trouble, arousing the anger of the masses and young people, prompting them to take to the streets. May I ask how many people have taken to the streets because of the incident of the woman allegedly shot in the eye? She has applied to the Court for an injunction order, refusing to disclose her medical report. What has actually happened?

PRESIDENT (in Cantonese): Mr SHIU Ka-fai, please stop speaking.

1338 LEGISLATIVE COUNCIL ― 7 November 2019

MR MARTIN LIAO (in Cantonese): President, I rise to speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") to extend the statutory retirement ages for the Chief Justice and Permanent Judges of the Court of Final Appeal and Judges of the High Court from 65 to 70, to extend the statutory retirement ages for Magistrates and other Judicial Officers from 60 to 65 and to raise the statutory early retirement ages and maximum retirement ages for Judges correspondingly.

President, the current revisions to the retirement ages for Judges and Judicial Officers can be justified by the retirement age arrangements in other leading common law jurisdictions. Looking at the other jurisdictions that practise the common law system in the world, we will see that the existing retirement ages for Judges which have been implemented in Hong Kong for many years are outdated. For instance, the United Kingdom and New Zealand have a uniform retirement age of 70 for Judges, and in the United Kingdom, it is even proposed this year that the retirement age for Judges be raised further. Lady HALE, President of the Supreme Court of the United Kingdom, told the Constitution Committee of the House of Lords that she backed raising the statutory retirement age for Judges to 72, and Lord NEUBERGER, former President of the Supreme Court, even proposed that the retirement age for Judges in the United Kingdom be raised to 75. We can see from those countries with a common-law tradition that extending the retirement age for Judges to above 70 has become increasingly inevitable.

Moreover, the retirement age is 70 for Judges of the High Court, the Federal Court and the Federal Circuit Court, and 65 for Judges of the Family Court in Australia. In Canada, the statutory retirement age for federally appointed Judges is 75, and the retirement age for Judges of some provincial and territorial courts is 70. In the United States, Justices of the Supreme Court have life tenure. Many Justices of the Supreme Court worked their whole life and died while in office, and the average age of Justices of the Supreme Court when they opt for retirement is 78.7. In contrast, the statutory retirement age of 65 for Judges at the District Court level and above and 60 for Magistrates and Members of the Lands Tribunal currently in place in Hong Kong are apparently lower than that in other typical jurisdictions that practise the common law system. Hence, President, the current proposed amendments are in keeping with the general trend in the international common law jurisdictions concerning the retirement ages for Judges.

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Further, the statutory retirement ages for Judges and Judicial Officers currently stipulated in Hong Kong was implemented in 1997, with a history of more than two decades. With technological and medical development, the average human life expectancy has increased markedly. According to the data of the World Bank, the average life expectancy of the population in Hong Kong had increased from 80.13 years to 84.23 years in 2016, and over the years, people have lived more than four years longer on average. Also, Hong Kong again boasts the longest life expectancy of both genders in the world. As shown by the statistical report of the Ministry of Health, Labour and Welfare of Japan in 2019, the average life expectancy is 87.56 years for females and 82.17 years for males in Hong Kong. Extending the retirement ages for Judges and Judicial Officers by five years not only goes with the trend toward longer average life expectancy of the population in Hong Kong since 1997, but also enables the vast majority of Judges who are willing and able to serve at the age of 65 to continue to make contribution to the judicial system and the rule of law in Hong Kong, where people have an average life expectancy of more than 80 years nowadays. As we all know, the profession of Judges requires substantial experience and expertise. Extending the retirement ages for Judges and Judicial Officers will be conducive to the effective deployment of existing manpower resources of Hong Kong courts, thereby enabling them to continue to serve the community with their experience and talent.

President, a more important reason for extending the retirement ages for local Judges is the persistent challenges confronting Hong Kong courts in the recruitment of Judges in recent years, not least the greater recruitment difficulties at the level of the Court of First Instance ("CFI") of the High Court with the gradual retirement of Judges since 2012. The Judiciary has yet to fill all vacancies at the CFI level despite five rounds of open recruitment. Given that legal practitioners will experience a significant decline in earnings after joining the Judiciary and be prohibited from returning to private practice after joining the Bench at the District Court level and above, the relatively low retirement ages for Judges will mean a further disincentive for the already limited pool of eligible practitioners to join the Judiciary. Extending the retirement ages will be conducive to not only retaining serving Judges and Judicial Officers, but also attracting outstanding talent from the legal sector to join the Judiciary, thereby filling the judicial manpower gap, jointly maintaining and enhancing the quality of Judges in Hong Kong, ensuring the operational efficiency, effectiveness and stability of the Judiciary, and benefiting the development of the rule of law in Hong Kong long term. 1340 LEGISLATIVE COUNCIL ― 7 November 2019

President, extending the statutory retirement ages for Judicial Officers, raising the early retirement ages and maximum retirement ages and putting in place the discretionary extension arrangements and transitional arrangements are inevitable approaches to meeting the shortfall in local judicial manpower, which are also in line with the international judicial trend and the average human life expectancy that evolves with the times.

With these remarks, President, I reiterate my support for the Bill.

MR TONY TSE (in Cantonese): President, Secretary for Labour and Welfare LAW Chi-kwong once said that when everyone can live to 120 years of age, 60 years is only middle age. As society was arguing over the Government's amendment of the eligible age for elderly Comprehensive Social Security Assistance, the Secretary's remark attracted considerable criticism from the public. However, the remark per se actually makes sense. Even if it is not entirely accurate now, the idea that "60 years is middle age" may come true after some time with the constant advancement of medicine and technology and people's increasing emphasis on diet, exercise and personal health.

In light of the ageing population, low birth rate and dwindling labour force, many countries and regions around the world have revised their statutory retirement age, so that elderly people who are still in good health and capable of working can continue to do so and contribute to society while earning some income instead of relying solely on pensions or social security for living.

There is no mandatory statutory retirement age in Hong Kong. However, there is an age limit for retirement in the civil service, some public organizations, private enterprises and the Judiciary under discussion today. The retirement age for civil servant new recruits has been revised earlier on, with a mechanism for serving civil servants to extend their service. Public organizations have followed this practice and made similar revisions.

The Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") of which the Second Reading is resumed today seeks to extend the retirement age for Judges and Judicial Officers at various levels of court. The retirement age for District Court Judges or Judicial Officers at lower levels will be extended from 60 to 65, with the possibility of discretionary extension to LEGISLATIVE COUNCIL ― 7 November 2019 1341

70 subject to certain conditions. The retirement age for Judges at High Court level or above will be extended from 65 to 70 or 71, with the possibility of discretionary extension until 75 or 76.

President, the Judiciary's proposal to extend the retirement ages for Judges seeks not only to cope with the trend of ageing population, but also to alleviate the shortage of Judges.

Apart from their independence, the Courts of Hong Kong are also notorious for the long waiting time. Non-urgent cases are often scheduled for trial months or even more than a year later. Judgments of many cases were delivered quite a long time after the trial. In some cases, oral verdicts are given but the delivery of written judgments is severely deferred, thus delaying the parties' decision to appeal or take other legal actions. One of the reasons for the delayed trials, delayed sentencing and delayed judgments is the shortage of Judges.

Many legal professionals have stated that not only must justice be done; it must also be seen to be done and that justice delayed is justice denied. Otherwise, the rule of law will be undermined and public confidence in the judicial system will be affected.

For instance, in regard to the violent offences that occurred in recent months, many members of the public have questioned why the arrested persons were released on bail by the Court and that the cases are scheduled for trial months later, thus allowing the suspects the opportunity of breaking the law again and sending the wrong message, particularly to young people, that they would only need to pay a few hundred dollars of bail even if they were arrested. Someone has proposed to follow the example of the United Kingdom and set up a special court to accelerate the processing of relevant cases, and tighten the requirements for release on bail pending trial. However, President, the implementation of these measures requires sufficient Judges and Judicial Officers. Hence, as I have just said, the Bill seeks to alleviate the shortage of Judges.

Some people find court judgments and sentencing inconsistent. The sentencing standards of some Judges give people an impression of inconsistency. For instance, the defendant of a recent case of desecrating the national flag was sentenced to 200 hours of community service, while a Mainlander who spray-painted graffiti on the external wall of the Consulate General of the United 1342 LEGISLATIVE COUNCIL ― 7 November 2019

States in Hong Kong was sentenced to four weeks' imprisonment. This has aroused widespread concern as they found the sentence unfair. They questioned whether the external wall of the Consulate General of the United States in Hong Kong is more worthy of protection than the national flag of our country? Is this caused by the shortage of Judicial Officers and Judges?

The significant disparity in sentencing will inevitably beg doubts as to whether other factors besides the law were involved, whether people with different political stances are treated differently, whether younger defendants who are still in school can be given more lenient sentences while older or less educated people are subjected to heavy sentences, whether those represented by famous defence lawyers can receive a lenient sentence, or most importantly, as I have just said, President, whether it depends on the quality of the Judge or other matters? We certainly hope the Government will examine this matter. It is essential that sentencing should not give an impression of significant disparity.

President, you may find that I have gone far off topic, but all of these questions affect my views on the Bill and my final voting preference.

President, I come back to the issue of shortage of Judges. The Judiciary has added a number of Judges and Judicial Officer positions at various levels of court in recent years. However, the present problem is that it is unable to fill the vacancies or recruit enough people. According to the figures provided by the Judiciary, which may have been cited by some Members earlier, as at end of March this year, against the establishment of 218 judicial posts, only 156 were substantively filled. That means there were more than 60 vacancies or one vacancy in every four positions. The vacancy rate is higher than that of other staff grades in the Government.

Worse still, given the existing statutory retirement age, 26 Judges and Judicial Officers will retire this year and the next, representing 16% of the total, which I believe is also higher than that of other staff grades in the Government. I think extending the retirement age of Judges can definitely alleviate, or at the very least delay the wastage of Judges due to retirement, which is a factor that aggravates the current shortage of Judges and Judicial Officers.

Of course, Judges who have reached retirement age should be the most senior and experienced ones in handling cases. Hence, allowing these Judges to extend their service for a few years is not only necessary, but also advantageous. LEGISLATIVE COUNCIL ― 7 November 2019 1343

Extending the retirement age will also facilitate the Judiciary in recruiting new Judges because candidates for many judicial positions, in particular Judges of Courts at higher levels, come from private practice. Barristers in private practice may wish to serve as Judges or Judicial Officers. If they perform well in the private sector, their income must surely be higher than that of Judges. Hence, joining the Judiciary to serve the community may not be very attractive to them in terms of remuneration. Nonetheless, some private practitioners in their 50s may consider joining the Judiciary for they want to change their work pattern.

However, legal professionals from the private sector have to retire only a few years after taking up judicial positions. If the retirement age is not extended, these positions may become much less attractive to them. These are all grounds for extending the retirement age for Judges and Judicial Officers. Particularly, it is presently provided that Judges of courts at the District Court level or above cannot rejoin private practice upon resignation or retirement. Hence it brings forth this question: After joining the judicial ranks, practitioners cannot rejoin private practice but they will soon reach retirement age. In this case, they may not work for several years more even if they so wish. This is another argument for extension of the retirement age. If the retirement age is extended, they may work for another 10 or even 20 years after giving up their private practice for judicial positions, which I think will increase their motivation for joining the Judiciary at a lesser opportunity cost. It will be useful to prolong their service tenure in the Judiciary. Therefore, I agree that extending their retirement age will bring considerable benefits.

President, I believe the present serious shortage of Judges and Judicial Officers will persist even if this Council passes the Bill to extend the retirement age for Judges. The authorities concerned must continue to examine other ways of accelerating the recruitment of quality Judges and attracting more eligible legal professionals to join the Judiciary, in a bid to shorten the waiting time for trial at various levels of court, so that justice can be done in a timely manner and lawbreakers can be tried and rightfully penalized as soon as possible.

President, I so submit.

DR CHIANG LAI-WAN (in Cantonese): President, I rise to speak in support of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"). The Bill is mainly about extending the statutory retirement age for 1344 LEGISLATIVE COUNCIL ― 7 November 2019

Members of the Lands Tribunal, Magistrates, and other Judicial Officers at the magistrate level from 60 to 65 and also extending the statutory retirement age for Judges of the Court of Final Appeal ("CFA"), Court of Appeal and Court of First Instance of the High Court from 65 to 70. However, there is another proposal which warrants our attention and that is, the proposal of setting the maximum retirement age at 75.

Honestly, I do not think that people aged 75 are too old. In fact, we can see from many examples in foreign countries that some Judges have lifetime tenure. It is most important that the person is healthy and has a sound mind, and it would not be a problem even if he continues to work at an even older age. I would even say that the older people are more experienced, and when they hear cases, I think they can see the picture more clearly and have a better understanding of the merits of a case and also more experience to count on.

Regarding the proposal of setting the maximum retirement age at 75, the Bill also provides that if a Judge is engaged in a CFA case and if the hearing of this case already started at the time when he reaches the retirement age, then this Judge can have his retirement deferred until the conclusion of that CFA case. If the case heard in CFA happens to be "a trial of the century", the retirement age of this Judge may likely be extended to 80, right? Therefore, I think it is necessary to make provisions clearer, such as stipulating the need to undergo health check-ups regularly or submit medical certificates annually. This, I think, will be better.

This extension of the retirement age of Judges is proposed because the Judges are really very busy. They have a tremendous caseload but manpower is in short supply. Let us take a look at whether there is really a shortage of manpower. I have looked up some information on the Judges and Judicial Officers in Hong Kong. I found that at present, there are only 22 Judges of CFA, 51 Judges of the High Court, and 45 Judges in the District Court ("DC") level; whereas in the Lands Tribunal, Magistrates' Courts and other Tribunals, there are 64 Magistrates and relevant Judicial Officers. These numbers add up to less than 200 people. Take the quite heavy-loaded DCs and Magistrates' Courts as examples. In 2018, the criminal and civil cases in DCs totalled 45 986 in number. Judges in Hong Kong are already very competent as the number of cases disposed of by DCs was 39 835, meaning that 6 151 cases have yet to be completed. We can see that there is indeed a shortage of Judges in Hong Kong because there are far too many cases indeed.

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Besides, let us look at the criminal cases. From first appearance of defendants in DCs to hearing, the average waiting time was 187 days, which means almost six months. As for the Magistrates' Courts, in 2018, the caseload stood at 340 612, of which 333 623 cases had been disposed of, meaning that 6 989 cases have yet to be completed. From these figures we can see that the manpower of the Courts in Hong Kong indeed faces a great challenge. One of the reasons is that the population in Hong Kong is growing.

Let us look at whether there is really a shortage of Judges in Hong Kong in the population context. We can draw a comparison with other places in the world. As at the middle of 2019, the provisional estimate of the Hong Kong population exceeded 7.5 million, representing an increase of 500 000 compared to a decade ago when the population was 7 million only. By 2036, it is projected that the Hong Kong population will exceed 8.14 million. An increase in the population means that more and more social or legal disputes will arise accordingly, and cases requiring court services will also be increasing, such as legal proceedings for divorce, child custody, financial arrangements for alimony, family disputes, etc., making the courts in Hong Kong busier in the future.

Moreover, we hope that Hong Kong can continuously develop as the world's major financial centre or better still, the world's largest financial centre. These developments are certainly followed by more commercial cases involving monetary disputes, right? I think Members will all understand that these are cases of great complexities which can hardly be concluded in six months or probably not even in six years given the complicated contractual provisions involved. I personally know some Judges who have also told me that there are too many cases but too few Judges.

Let us look at whether this is true. For instance, in the United States, President, there are 10 Judges per 100 000 population; in Australia, there are 4.5 Judges per 100 000 population; in Germany, the number of Judges per 100 000 population is 25, compared to 3 and 1.3 in Japan and India respectively. Do you know how many Judges there are per 100 000 population in Hong Kong? It is 2.4. I always consider it lamentable that in Hong Kong we face a shortage of Judges, and doctors, too, and as we all know … Do not worry, President. You look nervous, or worried that I may start discussing the shortage of doctors. No, I will not, President. I will continue with my discussion on the Judges. So, President, the situation indeed should not be neglected. Everyone can see that their shortage will become increasingly acute in the future.

1346 LEGISLATIVE COUNCIL ― 7 November 2019

In fact, apart from the increase of population, commercial cases, family disputes, etc., that I have just mentioned, social movements will likewise lead to a continual increase in the workload of Judges and Judicial Officers. An example is the Occupy Central movement in 2014, as a result of which more than 200 people have faced judicial proceedings; for the Mong Kok Riot in 2016, prosecution has been brought against dozens of people and for some of these cases, hearings have not yet completed and they are still at the stage of court proceedings. The social conflicts triggered by the amendment of the Fugitive Offenders Ordinance have persisted for five months now. President, it is estimated that the Police have arrested close to 3 000 people in the protests and about 500 people have been prosecuted so far. On every weekend the Police are busy working everywhere in the hope that society can be less chaotic, especially as the blocking of roads and fighting have happened in many places. We, therefore, envisage that the number of arrests made by the Police may keep on increasing in the future.

The existing manpower shortage, especially the shortage of Judges, actually worries me a lot. President, I very much agree with the remarks made by some Members yesterday. Now that several thousand people have been arrested and some 500 of them have been prosecuted. The time entailed by judicial proceedings will not be short. Yet, we have given thoughts to one point. These people are mostly youngsters and if their cases remain pending, it would be impossible for them to take forward many of their plans. Some have just graduated and started to work but may be arrested by the Police or may have lost their jobs, or they may find it difficult to land a job. What can they do? Now their cases remain pending and probably there will be a wait of several years before the hearings start. Such being the case, their life has to come to a standstill.

Therefore, delays in court hearing are a torture to the defendant. This is very true, because it would be impossible for him to move on with his life. He prefers to face the verdict and even if he will be convicted and put behind bars for six months or a year, he can turn over a new leaf after serving his sentence. But now the proceedings are slow probably due to a shortage of Judges, making it impossible for him to start a new life, and this actually amounts to secondary victimization to the young people. When he committed an offence, he could be sentenced to jail. But if he should be further held back from moving on with his life, that would really be miserable.

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In 2016, the Lord Chancellor and the Lord Chief Justice of the United Kingdom completed a report on manpower and enhancing the efficiency of the courts. In the report, it was pointed out that "Justice delayed is justice denied. Low value cases or those of modest social significance should be dealt with quickly." Therefore, we support the extension of the retirement age of the Judges as currently proposed, but we must also continuously upgrade the efficiency of the Courts in hearing cases. I understand that the Judiciary has, in recent years, implemented an Information Technology Strategy Plan to enhance logistical support for Judges, Judicial Officers and court users. I hope that more cases can be dealt with online or through electronic means, in order to enhance efficiency in the handling of court cases in Hong Kong.

I support the Bill. I so submit. Thank you, President.

MR WONG TING-KWONG (in Cantonese): President, the purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") is mainly to: extend the statutory retirement age for Judges of the Court of Final Appeal ("CFA"), the Court of Appeal ("CA") and the Court of First Instance ("CFI") of the High Court from 65 to 70 and that for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65; introduce a new statutory discretionary early retirement age of 60 for Judges of CFA as well as CA and CFI of the High Court; introduce a statutory early retirement age of 60 for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level; and provide for discretionary extension of term of office for Judges of the District Court.

The Administration indicates that, in view of the wave of retirement now faced by the Judiciary and according to the Report on Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service, retirement is the main source of wastage among Judges and Judicial Officers and the retirement situation may pose challenges to judicial manpower. The anticipated retirement would be eight in 2018-2019, increasing to 14 in 2019-2020 and slightly dropping to 12 in 2020-2021, totalling 34. It means that in the next two to three years, 34 Judges or Judicial Officers will retire.

1348 LEGISLATIVE COUNCIL ― 7 November 2019

At present, the establishment of Judges at various levels of court stands at a total of 218, but the strength is only 156. In other words, there are 50 to 60 vacancies. Apart from the four Judges of CFA, which is at full strength, the strength falls short of the establishment at the remaining various levels of court. Among them, the establishment of CFI and CA of the High Court is 48 Judges but the strength is only 40, with eight Judges short. As for the District Court Masters' Office, Magistrates' Courts, Specialized Court and other Tribunals, the establishment stands at 108 while the strength is 68, with 40 vacancies. President, such numbers are indicative of a nearly 40% manpower shortage in the primary courts.

For this reason, the authorities hope to extend the term of office of Judges at various levels of court by means of an extension of retirement age for Judges at various levels of court and an introduction of discretionary extension of tenure for Judges of the District Court. Among them, the statutory retirement age for Judges of CFA is recommended to be extended from currently 65 to 70, coupled with the recommended six discretionary extension years, the maximum retirement age will be extended from 71 to 76. Moreover, the maximum retirement age for Judges of CFI and CA of the High Court is recommended to be raised from 70 to 75, whereas the maximum retirement age for Judges of other courts will be raised from 65 to 70, so as to solve the manpower shortage of Judges at present and that arising from the wave of retirement in the next few years.

Of course, in the face of the current manpower shortage of Judges, there is no cause for criticism for the authorities to extend the retirement age for Judges at various levels of court so as to reduce the wastage of Judges. Moreover, Judges form a crucial part of the judicial system. It is of tremendous significance to the stability of the judicial system to allow some experienced Judges to continue to serve therein. Therefore, I extend my recognition and support to the Bill.

However, given the manpower shortage of Judges, can the authorities solve the problem solely by extending the retirement age for Judges at various levels of court? The answer is certainly negative.

The severe manpower shortage of Judges at various levels of court has now unnecessarily prolonged the litigation duration of many cases, be it criminal or civil. On the one hand, this problem has resulting in justice not being done in a timely manner. While lawbreakers or wrongdoers cannot admit their guilt and accept their punishment as soon as possible, justice cannot be done in a timely LEGISLATIVE COUNCIL ― 7 November 2019 1349 manner regarding the aggrieved or victims, who cannot be relieved of their resentment. On the other hand, with protracted proceedings of cases, no judgment can be passed on the determination of merits promptly, and so disputes in society cannot be resolved as soon as possible. It is particularly so for cases that have attracted enormous concern from various sectors of society or have profound impact on Hong Kong society. The more the trials are delayed, the stronger the impact will be on Hong Kong society.

In June this year, rioters incessantly did evil acts all over the city. They attacked the Police Force, besieged police stations and government buildings, and damaged the Legislative Council Complex. They went on to blockade the airport and assault Mainland visitors to Hong Kong and reporters. Now, they have even randomly assaulted people holding different political views, and relentlessly destroyed facilities of the MTR Corporation Limited, causing the total suspension of MTR services. They engaged in acts of assault, vandalism, looting and arson on Mainland-funded banks, organizations and enterprises, as well as restaurants and shops supporting the Police. Despite the arrest of close to 3 300 persons in the past four months by the Police, to date, no court proceedings of any relevant case have been concluded and not a single rioter has been brought rightly to justice. It not only enables many rioters to continue their engagement in violent acts while out on bail, thus keeping the Police on the run and exhausting them, but also makes them blatantly escalate the violence in committing evil acts, while turning a complete blind eye to law, the rule of law and even basic humanity.

Rightly as Dr CHIANG Lai-wan said just now: "justice delayed is justice denied", I consider that only by bringing the rioters to justice as soon as possible, such that legal sanctions can be imposed on them, that can violence be stopped and disorder curbed and that peace be restored in Hong Kong society, which will be freed from the current predicament.

I consider the protracted handling and trials of cases by the Courts in Hong Kong unacceptable. In the light of the social turbulence in Hong Kong right now, the Courts will do a disservice to Hong Kong by prolonging the handling and proceedings of cases. Therefore, it is one of the crucial tasks of the SAR Government to expeditiously fill the vacancies of Judges at various court levels, or even further recruit more Judges to expedite the progress of handling and trial of cases at various levels of court.

1350 LEGISLATIVE COUNCIL ― 7 November 2019

Though I am not a member of the Bills Committee, I understand that the Bills Committee has explored the reasons for the long-standing failure of the Judiciary to recruit sufficient Judges. For example, do the remunerations, such as salaries and benefits, lack attractiveness, or the present threshold for recruitment of Judges is too high or outdated such that the Judiciary has difficulty recruiting Judges for various court levels? Currently, three universities in Hong Kong have set up law faculties which train hundreds of law graduates of different levels every year. And there still exists a severe shortage of Judges. I find the failure to recruit sufficient Judges inconceivable.

The authorities stress that the recruitment threshold for Judges will not be casually lowered so as to prevent unqualified persons from becoming Judges. Such a notion appears to be justified. However, we ought to think carefully to realize the present difficulty in the recruitment of Judges, which has caused prolonged understaffing of Judges, did not occur just in the past year or so, but has persisted for a very long time. The long-standing understaffing of Judges at various levels of court has, to a certain extent, led to the shortage of Judges of CFA, necessitating engagement of overseas non-permanent Judges for hearing significant cases. Of course, the Basic Law permits the engagement of overseas non-permanent Judges in hearing CFA cases but, at the time, the consideration was that there were insufficient Judges in Hong Kong to assume the posts of CFA Judges. However, 22 years have passed and with a large number of law graduates trained every year, still Hong Kong needs to rely on overseas Judges to hear local cases. It is unacceptable.

Under the current circumstances, the authorities must conduct a comprehensive review of the threshold and requirements for recruitment of Judges at various levels of court, and establish a comprehensive training and promotion system for Judges at various court levels, so as to solve the existing problem of protracted handling of cases caused by the long-standing shortage of Judges.

With these remarks, I support the Bill which extends the retirement age for Judges at various levels of court. At the same time, I request the authorities to conduct a comprehensive review and reform of the threshold and requirements for recruitment of Judges at various court levels, and establish a relevant training and promotion mechanism.

Thank you, President.

LEGISLATIVE COUNCIL ― 7 November 2019 1351

MS ELIZABETH QUAT (in Cantonese): President, the main purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") is to extend the statutory retirement age for Judges of the Court of Final Appeal from 65 to 70, and that of members of the Lands Tribunal, Magistrates and other Judicial Officers and at the magistrate level from 60 to 65. The Bill also seeks to introduce a new statutory discretionary early retirement age of 60 for Judges of the Court of Finance Appeal as well as the Court of Appeal and the Court of First Instance of the High Court and a statutory early retirement age of 60 for members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level, and to provide for discretionary extension of the term of office for District Judges.

According to the Government, this is mainly due to the imminent wave of retirement faced by the Judiciary. As evident in the figures, the manpower shortage is really serious. The overall establishment of all levels of court is 218 posts, yet only 156 posts are filled. Under this circumstance, the shortage of Judges at all levels of court is serious. The current extension of the term of office of Judges at all levels of court is a feasible approach. This is understandable and should be done. We trust the implementation of this arrangement will enable experienced Judges to stay in the judicial system, and hopefully this will maintain the stability of the judicial system. I think this will alleviate the serious shortage of Judges presently in some measure.

Yet, the problem before us now is whether we can rely on this method solely to solve the manpower shortage problem and the impact of the shortage of Judges on Hong Kong overall. I believe Members must have all seen that due to the present shortage of Judges at all levels of court, many cases are delayed indefinitely and the duration of delay is rather long. Worse still, we perceive that this problem will intensify in future. One of the causes, which some Members have mentioned earlier, is the non-refoulement cases commonly known as the problem of "bogus refugees". We know that the problem has all along been serious. In the beginning, there were 10 000-odd "bogus-refugee" cases which had to be handled by the Immigration Department ("ImmD"). More often than not, the claims will be ruled unsubstantiated, but the claimants will lodge appeals. After the appeal, these cases would likely enter the judicial review proceedings. Indeed, the prevailing situation is worrying, as the number of applications for judicial review involving non-refoulement claims has risen to 6 000. I have asked the authorities just now and learnt that ImmD is now handling around 4 000 appeal cases. The appeal procedures of these cases will 1352 LEGISLATIVE COUNCIL ― 7 November 2019 be completed within next year and a majority of these cases will enter the judicial review proceedings. In other words, over 10 000 judicial review cases on non-refoulement claims will go into the judicial system of Hong Kong next year.

Currently, the judicial system can only handle around 1 000 cases per annum for the first stage of screening for judicial review. For judicial review cases which no leave is granted, applicants will appeal against the refusal and these cases will enter the next stage of judicial proceedings, that is, the appeal against refusal of leave for application for judicial review. In other words, these 10 000 case will bring about another 10 000 appeal applications. Members may not imagine the seriousness of the problem faced by Hong Kong. President, the greatest problem is that the judicial system now faces a shortage of Judges, which is the reason for our discussion on the Bill today. Yet, in the future, we will be facing these 10 000 non-refoulement claim applications and the 10 000 appeal cases subsequently. Does the judicial system of Hong Kong have the capacity and manpower to deal with these cases?

Moreover, we will be facing an enormous expenditure. Currently, each applicant of a non-refoulement claim will receive a monthly humanitarian assistance of about $3,500, which is $42,000 per annum. If the existing 10 000 cases go into the judicial system, it will incur $420 million per annum. This amount does not include scenarios where applicants continue to lodge appeal or apply for legal aid. Members can thus imagine the situation. Since the judicial system can only handle 1 000 cases each year, it will take 10 years to complete the 10 000 accumulated cases. At present, the total expenditure amounts to billions of dollars. Since these cases will be handled together with other cases pending hearing, we will be facing colossal problems.

In addition to judicial review cases of non-refoulement claims, we have to handle many other cases. How can this problem be solved? In June this year, the Judiciary proposed that for cases involving leave for bringing applications for judicial review on non-refoulement claims handled by the Court of Appeal, the number of Judges on the Bench would be reduced from three to two to expedite the hearing and enhance efficiency. Yet, at hearing the figures mentioned just now, Members should know there is an extremely slim chance that the problem will be solved.

Moreover, since the outbreak of riots in various places in Hong Kong in June, we learnt that the Police have arrested over 3 000 rioters in the past few months and these people will have to wait for trials in courts. Given the LEGISLATIVE COUNCIL ― 7 November 2019 1353 prevailing shortage of Judges, how will the authorities handle the 10 000-odd non-refoulement claim cases and the 3 000 people arrested because of riots―more people may be arrested in the future? How many years will it take to solve this problem?

As for cases involving riots, due to the manpower shortage of the Police in performing evidence collection and prosecution tasks, there is delay, whereas the manpower shortage of the Judiciary has resulted in further delay. Now, due to the shortage of Judges, these cases will be delayed even further. How long will the handling of these cases be delayed?

Hence, President, I propose that the authorities should not merely extend the retirement age but should also recruit a large number of additional staff. It should also review and identify the reasons for failing to recruit an adequate number of Judges and attract quality talents to join the judicial ranks. Apart from increasing manpower, are there other alternatives? I think this is the responsibility of the Government and it should think about this.

Moreover, to avoid affecting and causing delay to the 10 000-odd non-refoulement claim cases and cases involving charges arising from riots, thereby dragging the progress of other cases pending hearing, I propose that the authorities should consider setting up special courts for handling non-refoulement claim cases and riot cases arisen in the past few months respectively, so that the serious problem we now face may be tackled expeditiously. In fact, the setting up of special courts is no novelty. We can refer to the experience of the United Kingdom. In 2011, to concentrate on and speed up the hearing of cases involving riots and disorder, the authorities set up special courts. Back then, the Police of London had arrested 4 000 persons, and those special courts were operating nearly on a 24-hour schedule …

PRESIDENT (in Cantonese): Ms Elizabeth QUAT, please come back to the question of this debate.

MS ELIZABETH QUAT (in Cantonese): And not only one court but a number of courts were processing those cases concurrently.

1354 LEGISLATIVE COUNCIL ― 7 November 2019

Yet, in view of the present situation in Hong Kong, the continual operation of the existing system solely, even if the extension of the retirement age for Judges under the Bill were passed today, would not be able to cope with the cases now in hand. In the past few years, Hong Kong has encountered serious problems in this aspect. The longer a case is delayed, the later justice is done. In fact, both victims and offenders will hope that their cases can be settled as soon as possible and will not be delayed. This is the problem we are facing.

President, as to the question of whether the extension of the retirement age for Judges is the best solution, I have sought the opinions of some members of the public recently and they have expressed their views and worries which I consider the Government should address. Since the conduct of certain Judges has aroused controversies and comments currently, they worry that the term of office of these Judges with conduct considered problematic by them will also be extended upon the extension of the retirement age for Judges. It is stipulated in paragraph 76 of the Guide to Judicial Conduct that, "Judges should refrain from membership in or association with political organizations or activities", and Judges should not make comments on politics. If Judges express their political stance unduly, it may prompt public queries about the fairness and impartiality of Judges in passing judgment. Nonetheless, in the current anti-amendment turmoil, certain incumbent Judges have acted against the principle of maintaining political neutrality by expressing their opposition to the amendments proposed by the Government in a high profile and open manner through the signing of joint statements in their real names. Moreover, individual Judges have expressed their political preference to the media anonymously, which is a serious violation of the Guide to Judicial Conduct.

Regarding these situations, Chief Justice Geoffrey MA of the Court of Final Appeal also agreed with the existence of such cases, yet he only gave verbal reminders to the Judges concerned. This response has prompted many people to query if Judges are being protective of their peers, which left Judges subject to no supervision. Hence, they worry whether or not courts will remain fair and impartial in hearing, and they query if it is justified that the arrangement of extending the retirement age for Judges will also be applicable to Judges they consider unfair, biased and problematic.

In fact, some cases have really aroused doubts. For instance, a person threw a national flag into a fountain in Sha Tin and trampled on it, which is an offence of desecration of the national flag, yet the person was merely sentenced to 200 hours of community service. In contrast, a Mainlander was sentenced to two-week imprisonment for holding a placard with the slogan stating, to the LEGISLATIVE COUNCIL ― 7 November 2019 1355 effect, that "British politician are nuts, stop interfering in Hong Kong matters" and spraying black paint on the emblem of the Consulate General of the United States in Hong Kong. The public are concerned about the reasons for the disparity in judgment and the sentence standard, and they also worry whether or not it is in the interest of Hong Kong if Judges who do not adhere to the standard in passing judgments are also allowed to extend their retirement age.

Moreover, some people think that there are problems with the bail system, for during this period, many people arrested for the charge of suspected riot are granted bail by the Court. As stipulated explicitly in section 9 of the Criminal Procedure Ordinance, in handling accused persons' applications for bail, the Court should consider the seriousness of the case, the substantiality of evidence, the likelihood of jumping bail and committing crimes while on bail, and so on. Yet, at present, it has become increasingly frequent that accused persons are released on bail, and the standard applied in judgment seems to be different. For instances, a person cutting a teacher with a knife was refused bail, yet a person suspected of biting off a police officer's finger and another suspected of throwing objects from height have been released on bail, and certain people have even been allowed to travel while on bail. These situations have aroused worries among the public and they consider them unreasonable.

President, in recent years, many places, such as the United Kingdom, have set up sentencing councils and judiciary monitoring committees. They consider it important to set up these organizations to formulate sentencing standards for all criminal offences in order to put the mind of the public at ease. Hence, President, I support the Bill. Yet, I hope that the Government will examine the setting up of organizations like the judiciary monitoring committee and the sentencing council, so as to maintain the confidence of the public in the judicial system and to allay their worries about unfairness in judicial proceedings.

President, I so submit.

PRESIDENT (in Cantonese): I now suspend the meeting until 5:15 pm.

4:32 pm

Meeting suspended.

1356 LEGISLATIVE COUNCIL ― 7 November 2019

5:15 pm

Council then resumed.

PRESIDENT (in Cantonese): Mr Steven HO, please speak.

MR STEVEN HO (in Cantonese): President, the Member who spoke before me, Ms Elizabeth QUAT, pointed out in particular that the Judiciary, which is mentioned in the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), had caused repeated delays. Indeed, the very word is "delay", with the Judiciary causing delays, the Department of Justice causing delays and even the Bill discussed today represents just another move to stave off the problem of shortage of Judges.

I will divide my 15-minute speech into two parts. In the first part, I have to talk about the extension of retirement ages, some being 75 years or 76 years and some being 70 years but in general, they will all be extended. First, is there any problem with being older? Does it help? In the second part, I will revisit the issue raised specifically by Ms Elizabeth QUAT just now, that is, is the extension of the retirement ages useful?

We have to cite some examples. Talking about age, Mr WONG Ting-kwong, who is seated next to me, is a Member whom I hold in high esteem. I believe Mr WONG Ting-kwong is the Member who has scrutinized the largest number of Bills in the Legislative Council and within the DAB, he is called "the king of bills". I cannot assert if people outside the party also refer to him in this way. Even with regard to the Prohibition on Face Covering Regulation proposed recently, he also came forward to take up a role, commanding respect and support, his eyes bright and piercing. Mr WONG Ting-kwong, thank you.

In the past, was there any problem with old age? I have to talk about the era of the Duke Mu of Qin in the Qin Dynasty. Let us not talk about how the Duke Mu of Qin used five pieces of sheep skin to buy the talented BAI Lixi, who was also referred to as the "grand master of the five sheepskins", to assist him, instead, let us talk about the reaction of the Duke Mu of Qin on meeting BAI Lixi for the first time after securing the service this person of great abilities. He thought that this gentleman was a bit old and the immediate reaction of BAI Lixi was, "Of course, if you want me to chase flying birds or wild beasts, I am indeed LEGISLATIVE COUNCIL ― 7 November 2019 1357 a bit too old. However, if you want me to devise plans and strategies, I believe I cannot be considered old. JIANG Taigong was forced to assist the Duke Wen of Jin only when he was 80 years old and now, I am still 10 years younger than him." In other words, he began to assist the Duke Mu of Qin only when he was 70 years old and was able to serve him for a long time. In the end, together with a friend called Jian Shu, he was referred to as "the two ministers" in the State of Qin.

Therefore, first, old age per se is not necessarily a problem. Quite the contrary, as the saying goes, "An elder is like a treasure to a family". In some cases, without a certain amount of life experience, it may not be possible to derive certain results. At present, we can see many young people taking to the streets in protest and some people may think that they are doing the right thing, while other people may think otherwise. If we sum it up, it is believed that they have little life experience. Nevertheless, in terms of knowledge, this is not wanting as they may be university students who may become professionals after graduation. In comparison, older people may be more mature and sober and by virtue of their life experience, can have clear insights about whether or not the whole anti-amendment movement has any actual benefit for Hong Kong and offer some practical advice.

Second, let us not talk about such a distant time as that of the Duke Mu of Qin but some similar judicial system instead. In the United States, the same views as those in Hong Kong are advanced. I have just looked up the Wikipedia―although it may not be entirely credible―to read about the judicial system in Hong Kong. Its head is Geoffrey MA and his tenure is lifelong but a retirement age is set. Similarly, the system in the United States is also lifelong―I am not very familiar with this and if I am wrong, I stand to be corrected, or Mr CHEUNG can correct me―even if a judge is so old that he cannot walk and move, he is still a judge. He may have a certain symbolic significance or authority in society and under a lifelong system, he is not subjected to any constraint or the influence and interference of any political party, so he can distance himself completely from those matters but of course, the issue of the political system does have some influence.

Therefore, if we look at the situation in Hong Kong, after extending the retirement age of Judges, can the legal system also be painted in such a flawless light as that in the United States? Certainly, I do not agree that the legal system in the United States is flawless as it probably also have deficiencies. Members can see that the legal system in the United States is not always ranked the best in 1358 LEGISLATIVE COUNCIL ― 7 November 2019 the world as some aspects of it are debatable. However, I only wish to point out that an extension of the retirement ages is one of the ways and old age does not necessarily make Judges' work ability deteriorate.

Just now, the issue of experience was raised specifically. In this profession, I think the older the Judges are, the more experienced they are and they can deal with very thorny cases. In the courts of Hong Kong, the few sentences spoken most often by Judges are, "According to case law, my judgment is …", "According to such and such case law, I rule that …", "Such a judgment was made in such and such a number of previous cases …, followed by the final judgment on a case. Therefore, will the greater numbers of cases dealt with and books read by a Judge in the course of his career make the final judgments given by him in court more credible? I believe it will.

Just now, I talked about the United States and the Duke Mu of Qin, so let us come back to the situation nowadays: In society, there are some views about the Court. Take a recent case of desecrating the national flag as an example, in the end, a community service order was meted out. The Judge said that it was because there was no case for his reference but I found this strange. As we all know, in the past, someone surnamed KOO committed offences related to the desecration of the national flag or regional flag several times and except for the first time, he was sentenced to imprisonment of 10 months. Why did the Judge say that there was no case that could serve as reference? Probably because this particular Judge is too young and he has not adjudicated a sufficiently large number of cases. I hope the Department of Justice can see if there is any chance of lodging an appeal ongoing back. I do not mean to cause any interference but perhaps we have different perceptions of the Court. For this reason, old age may have a positive effect on the health and credibility of the legal system in Hong Kong.

Second, let us talk about the issue of old age again. This kind of Judges is more mature and sober. Earlier on, a number of the Judges, either after requesting or without requesting anonymity, expressed some political views in public―we all know that we should remain politically neutral―and after expressing the political views, they thought that they had done nothing wrong. I believe that relatively speaking, those Judges probably do not have a great deal of experience. In contrast, people who are more mature and sober would probably elect anonymity. That means people who are older and with more life experience probably also have their political stances but they keep it to themselves. They may have bias regarding a certain case but the impact caused LEGISLATIVE COUNCIL ― 7 November 2019 1359 by them to society may be relatively speaking less. For this reason, there is the saying that "ginger gets spicier as it grows older" and even the description of "an old fox", which is a most negative one. One would not say that young foxes are sly; only old foxes are. Hence, from this perspective, it cannot be said that it will be highly positive to extend the tenure of old Judges but at least, they would not do greater harm than young ones.

More importantly, we have used a great deal of resources to train Judges and at present, the population is ageing―we believe that presently, the average life expectancy is at least some 80 to 90 years―so if Judges are compelled to retire, what can they do in retirement? In contrast, in passing more judgments, they can extend the time when they can deliver peak performance. We spent the money and when they reach 70 years of age, they may still have very strong work ability. Why do we let this portion of the resources used by us go to waste? We think the retirement ages should be extended in order to solve―let us not say solve but stave off or delay―the existing problem.

Dr CHIANG Lai-wan said just now that there are only 2.4 Judges for every 100 000 people in Hong Kong. Compared with other places, this is indeed a very low figure because in some places, there are two, three or even four judges. However, our proportion is really low and this is more or less the same as the problem of doctors in that the number is also inadequate. In view of this, can such delay solve the problem of insufficient manpower? No. There are two reasons for this. Maybe society was peaceful, so originally, everyone thought this group of Judges could cope and delays would not cause any major problem. However, earlier on, on various occasions, Mr WONG Ting-kwong also said to me specifically that justice delayed is justice denied, and even with regard to the incidents that have happened in Hong Kong nowadays, many people do not differentiate between black and white but condone violent or illegal incidents …

PRESIDENT (in Cantonese): Mr Steven HO, please come back to the question of this debate.

MR STEVEN HO (in Cantonese): I am coming back to the question. I am discussing the problem of manpower and the issue of extension precisely because there are delays. Why are there more and more delays? Can this problem of delay really be solved? Maybe in peaceful times, such a "mantra of delay" can solve 50% of the problems but in society nowadays, this "mantra of delay" of 1360 LEGISLATIVE COUNCIL ― 7 November 2019 extending the retirement ages can only solve 1% of the problems because in the recent incidents related to the opposition to the proposed legislative amendment, at least 2 000 to 3 000 people have been arrested, so is there adequate manpower to deal with them? Yet, the Government is unwilling to set up a special court. There is insufficient manpower and surely, some Judges need to take holiday breaks too. Would it work if a particular court was made to deal with them? There is no knowing. In the final analysis, the problem can be attributed to an insufficient number of Judges. In view of this, I believe that to some extent, implementing the measure of age extension in society now would not be as effective as it was done five years ago.

Therefore, it comes to the second part of my speech. Apart from dragging one's feet on this matter, can Hong Kong society do it? Do Judges simply pass judgments on cases? After extending the retirement age of Judges, will the SAR Government (including the Chief Secretary for Administration) and other institutions take corresponding actions in terms of law to extend the retirement age? This is because we find that there is a particularly large issue of fake news in Hong Kong and even in passing judgments, what the public are aware of is different from the pictures that the Court is able to see.

Take the 1992 Los Angeles riots as an example, a black man―let us categorize him as a black man as he was some sort of Latino―was beaten by four white police officers dozens of times with batons and it was recorded in a video recording lasting 81 seconds by a neighbour or someone in the neighbourhood and handed to a mass media organization for broadcast. However, that organization clipped some 60 seconds of the video recording, then handed it to various other mass media organizations for broadcast. The broadcasts aroused widespread accusations of police brutality. In the end, after the Court looked at how the entire case had happened, including that 81 seconds of video recording, the four police officers were acquitted and released, thus triggering riots that led to 56 deaths and 2 000 injuries. Was this simply a problem of racial discrimination? Not really, rather, the picture that the Court saw was different from what the public at large saw, thus leading to the riots in society. This may be somewhat similar to the situation in Hong Kong presently. How should this kind of pressure be dealt with?

In that case, experienced Judges are really crucial. At 75 or 76 years … if the retirement age is not extended and is kept at 70, what one lacks may precisely be that five years of life experience. I believe that when ruling on some very LEGISLATIVE COUNCIL ― 7 November 2019 1361 important political issues or social incidents, the judicial system in Hong Kong must choose experienced Judges to handle them. However, if we do not pass the Bill today, it may be precisely that difference of five years that ultimately leads to another riot.

Therefore, I hope the SAR Government will understand it is not the true that after the Bill has passed Second Reading and I have pressed the "Yes" button to extend the retirement age, everything would be fine. It is not the case that after I have pressed the "Yes" button, all the problems in Hong Kong can be solved. I want all people to know that even though I will lend it my support, some problems cannot be solved simply with my support.

I hope the SAR Government will understand the prevailing social environment and after I have given the Bill my support, more supplementary measures are needed. As I said just now, the 1992 Los Angeles riots were somewhat similar to the incidents related to the opposition to the legislative amendment in Hong Kong at present. Can the problems be solved just by relying on experienced Judges? The Government must also provide assistance to the Court and these experienced Judges, and make publicity efforts, so that the evidence heard in court and the picture painted by the mass media and conveyed to the public can be as consistent as possible.

If various departments all work in their own ways, so that banks and organizations with Chinese capital are smashed to pieces, people are prosecuted for boarding up premises, the authorities do nothing about slogans posted arbitrarily in streets and the Police said they needed places to park their vehicles but they were complained against by other officers, even if the retirement age of Judges were extended and they really have to deal with certain cases, they might not be able to resolve the incidents. Therefore, today, we will support the Second Reading of the Bill and later on, perhaps it will also pass the Third Reading but this is only the first step in resolving this matter and also the first step taken under this "mantra of delay". Ultimately, a longer-term solution to the problem of inadequate Judges in Hong Kong has to be found. Of course, stopping the violence and curbing the disorder remains the most important task. With fewer lawbreakers, there will not be so many people (brought before the Court). Now, there are so many lawbreakers and the Police dare not make arrests. After making arrests, they were kicked (The buzzer sounded) … so will this not affect me?

1362 LEGISLATIVE COUNCIL ― 7 November 2019

PRESIDENT (in Cantonese): Mr HO, please stop speaking.

MS YUNG HOI-YAN (in Cantonese): President, the SAR Government has accepted the recommendations made by the Judiciary, which include extending the statutory retirement ages for Judges of the Court of Final Appeal ("CFA") as well as the Court of Appeal and the Court of First Instance ("CFI") of the High Court from 65 at present to 70; extending the statutory retirement ages for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65; maintaining the retirement age of District Judges at 65 while providing a transitional arrangement; and allowing serving Judges and Judicial Officers to opt for the new retirement arrangements or follow the existing arrangements. From the perspective of strengthening the manpower support for the Judiciary, I support these recommendations in principle, and believe these recommendations will help enhance to a certain extent the operational efficiency and effectiveness of the Judiciary.

Nevertheless, is extending the retirement ages of Judges and Judicial Officers alone the ideal and ultimate solution with respect to the long-term human resources development of the Judiciary? I think that, in the long run, we must explore ways to attract more solicitors and barristers to join the Judiciary, and to retain them, in the hope of reducing the wastage rates. Certainly, some sort of retirement protection can also be provided with a view to relieving, through a structural approach, the manpower shortage in the Judiciary that has arisen from difficulties in recruitment.

President, talking about Judges, we cannot but have to mention the fundamental principles of judicial independence. Certainly, the Judiciary is independent of the other two branches of government, so as to ensure that the Judiciary can effectively exercise checks and balances on the executive and legislature to prevent abuse of power.

There are several provisions in the Basic Law expounding the importance of judicial independence of the Judiciary. These provisions include Article 2 which guarantees that Hong Kong enjoys independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law; Article 19 which stipulates that Hong Kong shall be vested with independent judicial power; Article 85 which also stipulates that the Courts shall exercise judicial power independently, free from any interference; Article 88 which also mentions that Judges of the Courts shall be appointed by the Chief Executive on LEGISLATIVE COUNCIL ― 7 November 2019 1363 the recommendation of the Judicial Officers Recommendation Commission, which is an independent statutory body composed of local Judges, persons from the legal profession and other sectors.

Very stringent standards are applied in Hong Kong in the selection of Judicial Officers to ensure that only candidates demonstrating a high degree of integrity and probity, meeting the standards of conduct required in respect of independence and professionalism, and possessing extensive legal experience will be considered for appointment as Judicial Officers. It is thus evident that Judges must maintain independence and professionalism as required by the Basic Law, and this is the cause for difficulties encountered in the recruitment of Judges.

Reviewing the news reports in these two days, I noted that the Department of Justice had issued a statement saying that we should respect judicial independence after a retired Magistrate had questioned the manner in which some riot cases had been handled. From this we can see that the checks and balances exerted by judicial independence on Judges in these two aspects might also lead to the unwillingness of solicitors or barristers to join and work for the Judiciary. Would they feel that their freedom of speech might be slightly restricted? Because they might not be able to patronize night entertainment venues, or have to be very cautious when making remarks in public once they have become Judges. Solicitors or barristers with professional conduct who choose to join the Judiciary will certainly be able to exercise such caution. However, this may also be the reason prompting them not to choose to join and work for the Judiciary.

Speaking of the Judiciary, there are actually other requirements in addition to the unique feature of judicial independence we have just mentioned, and that is, the prohibition of Judges returning to private practice after leaving the service. According to the relevant requirement, Judges cannot return to practice in law as barristers upon retirement from their judicial posts. This is also a factor deterring solicitors or barristers from joining the Bench.

One may ask: What can Judges do upon retirement presently? I have consulted a few senior members of the profession who said that there were also some ways out, such as arbitrators, mediators or working in the education field. There are still some ways out actually. Yet, as they are prohibited from returning to private practice after leaving the Bench under the existing mechanism, certainly financial issues may constitute a factor in their consideration as well.

1364 LEGISLATIVE COUNCIL ― 7 November 2019

The question of this debate concerns the statutory retirement ages and retirement arrangements of Judges. In fact, insofar as retirement arrangements are concerned, what other factors should be considered besides the wastage rates which will stand at a certain level due to the small number of people joining the Bench as Judges or the difficulties in retaining them, such that they will be willing to continue to serve the community? I note that the Standing Committee on Judicial Salaries and Conditions of Service has, in its study, suggested nine major factors, namely, (1) responsibility, working conditions and workload of judges vis-à-vis those of lawyers in private practice; (2) recruitment and retention of Judges and Judicial Officers in the Judiciary; (3) retirement age and retirement benefits; (4) benefits and allowances enjoyed by Judges and Judicial Officers; (5) prohibition against return to private practice in Hong Kong; (6) public sector pay as a reference; (7) private sector pay levels and trends; (8) cost of living adjustments; and (9) general economic situation in Hong Kong. These nine major factors will all have an impact on the intake of Judges.

Speaking of retirement, we know that Judges are now entitled to pensions or provident fund benefits, etc. In order to understand the retirement situation of Judges and Judicial Officers, we must of course take a look at the number of retirees at the very start. The number of retirees will be 10 (or about 6.4% of current strength) in 2019-2020, increasing to 13 (or about 8.3% of current strength) in 2020-2021, but slightly dropping to 10 (or about 6.4% of current strength) in 2021-2022.

We can see that the consultancy study conducted by the Hay Group has made several recommendations. First, it is recommended that the retirement ages be extended from 65 to 70, which is made upon drawing reference from the practice adopted by foreign jurisdictions. It is pointed out in the study that many people consider the current practice of setting the statutory retirement age at 65 too early. For instance, the retirement ages of the Judges of the High Court of Justice and the High Court in the United Kingdom, New Zealand and Australia have all been raised to 70, and therefore Hong Kong should also be on par with them. The second recommendation is to raise the statutory retirement ages for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65, which is made after making a comparison with the mechanism for civil servants. The third recommendation is to maintain the retirement age for District Judges at 65 while putting in place a transitional arrangement. They have indicated that the District Courts do not encounter any recruitment difficulties presently, so it is recommended that the retirement age be maintained at 65. However, we can see that since the District Courts can now LEGISLATIVE COUNCIL ― 7 November 2019 1365 deal with cases involving a greater amount of money, the number of cases to be handled will definitely increase. As the District Courts will need to hear a large number of cases in future, they will also face the pressure arising from wastage of Judges in the future.

Speaking of the continual increase in the caseload of the High Court, many Honourable colleagues have also mentioned non-refoulement claim cases today. According to the information on hand, the Torture Claims Appeal Board ("the Appeal Board") has now accumulated a backlog of 4 000-odd appeal cases on non-refoulement claims. As a matter of fact, the Immigration Department ("ImmD") has already increased the number of Appeal Board members from 20-odd by four times to 100. This reflects that the number of cases to be handled by ImmD has increased by multiple times. There are 4 000-odd cases pending determination of appeal and 6 000-odd cases pending judicial review. That said, is the actual number so small? The answer is no, because it is highly probable that applicants waiting for determination of appeals will apply for judicial review. Hence, the number of judicial review cases to be handled by the High Court may exceed 10 000 in future. Let us do some computations here. How long will it take for the Court to handle these cases? For instance, presently CFI can handle 1 000-odd cases per annum. So, it will take almost 10 years to handle 10 000 cases, that is, to complete the first trial. I have yet to calculate the time needed if the applicants of these cases appeal to CFA subsequently.

At present, CFA handles 200 to 300 cases per annum, so it will take several decades to handle 10 000 cases. This is precisely why we have to resolve the problem in relation to caseload. Take torture claims alone for instance, can all of such cases be handled solely by means of extending the retirement ages? In the meantime, about 10 Judges would leave the Bench each year, can these 10 Judges handle all the cases? It is virtually impossible. What is more, the Judiciary has also indicated that the caseload may not fully reflect the current workload of Judges and Judicial Officers. Apart from cases of torture claims mentioned earlier, there are in fact civil appeal, criminal, divorce, land dispute cases, etc. The hearing time of these complicated cases are ever-increasing since many litigants in civil cases do not have legal representation nowadays, thereby causing a significant increase in the workload of Judges. Take civil cases as an example, it now takes almost one year for Judges to deliver a verdict in writing, which implies that the verdict can only be obtained one year after completion of the trial. The situation is undesirable either.

1366 LEGISLATIVE COUNCIL ― 7 November 2019

In addition to the extremely heavy workload of the Courts, the small number of fresh entrants also poses a problem, of which the income gap is a major cause. According to the data in 2016, the Judiciary had a vacancy rate of 24%, while the largest income gap was observed for CFI Judges of the High Court, whose income was 60% less than that of solicitors or Senior Counsels in private practice. At present, the monthly salaries of Judges of the High Court range from approximately $200,000 to $300,000, yet this sum might just be barely equivalent to the remuneration for a few days' work of solicitors or Senior Counsels in private practice. This is indeed a stark contrast, and no wonder very few of them are willing to join and work for the Judiciary. Of course, we know that those willing to serve as Judges must have a strong sense of commitment to Hong Kong and law for them to join the Judiciary. We very much hope that more of these talents will join the Judiciary. Meanwhile, it is also desirable if the benefits and allowances can be increased correspondingly to attract them to join the Judiciary.

I have also noticed the implementation of enhancements in five areas of the conditions of service for Judges and Judicial Officers, including housing benefits, medical and dental benefits, Local Education Allowance, Judicial Dress Allowance and leave travel, with effect from 1 April 2017. In addition, the authorities have also implemented other improvement measures, such as revising the ceiling rates of Judiciary Quarters Allowance and Non-accountable Cash Allowance, Medical Insurance Allowance, Local Education Allowance, etc. Nevertheless, President, if we solely rely on increasing salaries and improving the conditions of service to attract talents, I am worried that we will still fail to address the shortage of Judges and Judicial Officers effectively. As for how we can incentivize more people with high aspirations and a sense of commitment to join the Judiciary, I hope that the Government can begin with education or make Judges serving in the Judiciary believe that they have promising promotion prospects. These are also attractive factors which can incentivize more people to join the Judiciary as Judges and make them willing to remain in service.

President, I so submit.

MR CHRISTOPHER CHEUNG (in Cantonese): President, under the Basic Law, the Judiciary of Hong Kong shall be independent with the appointment and removal of Judges made in accordance with a specific arrangement. Unless having committed a major blunder or resigning of their own accord, Judges in general will remain in office until the statutory retirement ages, which are LEGISLATIVE COUNCIL ― 7 November 2019 1367 currently 60 or 65 for Judges and Judicial Officers. However, as time passes, many Judges have attained retirement age, leading to a serious wastage of Judges. The Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill") introduced by the Government seeks to forestall the impacts on court operation caused by an upsurge of vacancies of Judges by extending the statutory retirement ages for Judicial Officers.

According to the Report on Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service, retirement is the main source of wastage among Judges and Judicial Officers, weighing heavily on judicial manpower. The Report also highlighted that the anticipated retirement of Judges and Judicial Officers will surge from eight (or 4.5% of the current strength) in 2018-2019 to 14 (or 8.5% of the current strength) in 2019-2020. As for 2020-2012, the figure is expected to drop only slightly to 12 (or 7.3% of the current strength).

The Bill proposes an extension of the retirement ages for Judicial Officers under the existing two-tiered system. The retirement age for Judges at the level of the Court of First Instance ("CFI") of the High Court and above will be extended to 70, while that for Judges and Judicial Officers below the CFI level will be extended to 65. It is hoped that such an arrangement can reduce the wastage of Judicial Officers and enable courts to continue to deal with the current backlog of cases effectively.

Given that the caseloads in the Courts of Hong Kong have remained more or less steady in the past few years, as statistics of the Judiciary suggest, an extension of the retirement ages of Judicial Officers should supposedly help ease the problem of manpower shortage. But unfortunately, the Police have arrested nearly 3 000 suspects in a series of riots that broke out since June. It is foreseeable that the caseloads in courts will jump in the future. Moreover, given the complexity of producing evidence, these cases are expected to take longer to process.

Take the cases of the nine leaders of Occupy Central as an example. The entire process―from investigations, the production of evidence, to court appearances of the defendants, the conduct of trials and the delivery of judgments―took five years, with half a year spent on the trials and the delivery of judgments alone. Hence, I am concerned that there will not be enough Judges to deal with the copious cases involving lawbreaking, disruption of order and violence, even with the extension of retirement ages for Judicial Officers. 1368 LEGISLATIVE COUNCIL ― 7 November 2019

Therefore, I think the Judiciary should, in addition to arresting the pace of natural wastage of Judicial Officers, step up its recruitment drive to attract more legal practitioners to join the judicial ranks. Apart from local recruitment, we can step up our efforts to bring in more Judges from other common law jurisdictions. Moreover, instead of limiting our choice to such conventional jurisdictions as the United Kingdom, Canada and Australia, we should also cast our recruitment net in Asia, incentivizing Judicial Officers from, among others, Singapore and Malaysia where common law is also practiced, to join our Judiciary, so that we will have sufficient Judges to hear cases and pre-empt backlogs and delay of cases.

Yet, the sole reliance on the Judiciary to step up recruitment of new blood may well prove as futile as trying to put out a nearby fire with distant water. For the new recruits may not be readily available to deal with the enormous number of cases involving offences related to the anti-amendment movement in a timely manner. I think the Government should proactively draw reference from the United Kingdom in its handling of the London Riots 2011 by fast-tracking the hearing of cases. At that time, a special court was set up in the United Kingdom, operating around the clock to hear over 1 000 cases. Since the judicial system of Hong Kong takes after, and can trace its origin to, the system of the United Kingdom, can the SAR Government and the Department of Justice consider taking a page from the British book?

President, we often stress the rule of law as a core value of Hong Kong. Hence, it is incumbent on us to uphold justice. If, in the absence of expeditious processing, cases relating to the disturbances arising from the anti-amendment movement are allowed to pile up, the witnesses and physical evidence concerned could be compromised, which would be unfair to both the prosecution and defence. Moreover, a delay in delivery would diminish a judgment in its power to demonstrate to society the seriousness of breaking the law, which would be unhelpful to the effort of damming the wave of violence having persisted for five months.

But in the final analysis, I think the focus of fair administration of justice should be on the Judges in their ability to remain completely impartial and consider cases on the basis of legal grounds instead of personal stance. I say this because not long ago, an incumbent Judge of CFI of the High Court signed a petition opposing the proposed legislative amendments, while some Judges (including allegedly a highly experienced one) spoke to foreign media LEGISLATIVE COUNCIL ― 7 November 2019 1369 anonymously, claiming that their opposition to the amendment of the Fugitive Offenders Ordinance stems from the worry that once the amendments were enacted, Judges hearing the relevant cases might be exposed to political pressure from Beijing. Such a worry, which is neither necessary nor appropriate, was apparently born out of their ignorance about the undertaking made and safeguard afforded by the Basic Law under the principle of "one country, two systems" in respect of the judicial independence of Hong Kong.

Hence, I hope Judges can deliver their judgments based on the principles of respect to and manifestation of national sovereignty, addressing squarely the particularly serious nature of the riots on this occasion, hearing cases impartially and taking pains to avoid giving young people the misguided notion that the Courts would be lenient to acts of law breaking and disruption of social order in the name of the so-called personal convictions and creeds …

PRESIDENT (in Cantonese): Mr Christopher CHEUNG, please come back to the question of the debate.

MR CHRISTOPHER CHEUNG (in Cantonese): President, the core values of the administration of justice lie in seeing justice being done in society, equality before the law for all, etc. Now that there is such a big backlog of complicated cases in courts, we should certainly ensure that there will be a sufficient number of Judges. But in the meanwhile, the standard applied by Judges in considering cases is equally important. Take a sentence recently handed down in a court for a case involving the desecration of the national flag as an example. By completing just 200 hours of community service, the person in question would be considered as having shouldered his legal responsibility in full. Yet, the National Flag and National Emblem Ordinance provides that a person who desecrates the national flag or national emblem by publicly and willfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction upon indictment to imprisonment for up to three years and a maximum fine of $50,000. The disparity between the sentence of the aforementioned case and the relevant penalties is markedly huge. There was another recent case in which a Mainland man, who came to Hong Kong on a Two Way Permit, spray-painted the phrase "China will prevail" on the gate of the Consulate General of the United States in Hong Kong. He was prosecuted on the charge of criminal damage and subsequently sentenced to four weeks in jail. 1370 LEGISLATIVE COUNCIL ― 7 November 2019

Many have been wondering why there is such a huge difference in the sentences between the desecration of the national flag and the vandalizing of a pair of gates. What standard do the Courts apply in determining sentences?

I hope the public will understand that the national flag is an important symbol symbolizing our country's exercise of sovereignty over Hong Kong. And the sight of the national flag rouses in us a sense of pride for being a Chinese. The national flag and the SAR flag flying side by side is a perfect display of the special status of Hong Kong under "one country, two systems". The deliberate desecration of the national flag …

PRESIDENT (in Cantonese): Mr Christopher CHEUNG, please return to the question of the debate.

MR CHRISTOPHER CHEUNG (in Cantonese): President, I will soon finish. Desecrating the national flag, which is tantamount to insulting our country, is objectionable under all circumstances and impermissible under the law.

President, it is certainly necessary to find ways to boost the number of judges or set up a special court to fast-track the processing of the backlog of cases arising from months of riots. Yet, in my opinion, if order and peace is not restored in society soon and if the Government cannot stop the violence, the situation will not improve even with the recruitment of a large number of Judges or a further extension of their retirement ages.

The case backlog may also be related to the Legal Aid Schemes. Taking advantage of the Schemes, many people, including rioters who set fires on or vandalized public properties, apply for legal aid for financial reasons to pursue justice for themselves. Seen in this light, the legal aid system is effectively encouraging more people to break the law without regard to legal consequences and sponsoring more people to engage in vandalism with public money, creating a vicious cycle that leads to the continued build-up of case backlog in courts, a backlog that cannot be cleared even with a large number of Judges.

As a final note, I wish to point out that at the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China held earlier on, the Central Government stated that "one country, two systems" must be upheld and LEGISLATIVE COUNCIL ― 7 November 2019 1371 perfected, and a sound legal system and enforcement mechanism for safeguarding national security in special administrative regions must be established. It indicates that the Central Government's support for the Hong Kong SAR has not changed or weakened despite months of riots in Hong Kong.

The Central Government enacted the Basic Law to ensure that the previous way of life of Hong Kong people shall remain unchanged, and that "one country, two systems" shall be implemented in Hong Kong. We should treasure such a special status, not undermining it lightly. I hope everyone of us (particularly young people) will take to heart the remarks made by Chief Justice Geoffrey MA of the Court of Final Appeal recently and learn to act with tolerance, respect and compromises. I think we should all love our own country with fervor.

With these remarks, President, I support the passage of the Bill.

MR CHEUNG KWOK-KWAN (in Cantonese): President, the purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019, as stated in the paper, is to extend the retirement ages for Judges and Judicial Officers at various levels.

Extension of the retirement age is one of the issues often discussed in the community in recent years, and the relevant work on extending the retirement age was carried out also in the civil service or public organizations, such as universities. However, President, the extension of the retirement ages for Judges and Judicial Officers is actually different from the extension of the same in other trades and industries. Why am I saying this? Because more often than not, we can see that in other trades and industries, the conditions are actually healthy, vacancies do not pose a serious problem, and the operation is still very smooth. But with the ageing of the overall population in Hong Kong, when we reach 60 or 65 … as you know, President, many people aged 60 or 65 nowadays are very healthy and therefore, despite the ageing of the population overall, we hope that the retirement age of the working population as a whole can be extended, so as to reduce the pressure created by retirees on society. This is a major reason behind the extension of the retirement age in many industries.

However, President, the case of Judicial Officers and Judges under discussion today is different. When we discuss the extension of the retirement age of Judges, it is not the case that the Judiciary has enough Judges and that we 1372 LEGISLATIVE COUNCIL ― 7 November 2019 need to extend their retirement age because society is ageing. This is not the case, for there is indeed this need in the Judiciary. Why? After the introduction of these proposals, what has been the attitude of the Standing Committee on Judicial Salaries and Conditions of Service ("the Judicial Committee")? The Judicial Committee indicated full support for the proposals which, in its view, are pragmatic and should be instrumental in attracting talents to join the Bench, including those who are at a later stage of their career in private practice, and will help retain experienced Judges and Judicial Officers. The attitude of the Judicial Committee has precisely pointed to the problem currently faced by the judicial system in not being able to recruit manpower, thus resulting in a shortage of manpower, especially Judges. This is why we need to extend the retirement age of Judges to curb the drain of Judges, so that court cases can be heard expeditiously. In other words, to the Judiciary, this is a measure to retain talents, a measure to provide remedies, and a necessary measure that has to be implemented in a timely manner. Therefore, this is quite different from the ecology in other industries.

President, regarding the question of whether there is a manpower shortage in the Judiciary, I think the figures say it all. In the relevant paper Members can find a breakdown of the establishment and strength of Judges and Judicial Officers at various levels of court. I think every Member should have read it before this debate. Appendix VI sets out clearly the figures of the establishment and strength of Judges and Judicial Officers at various levels of court. President, you will see that the situation is OK in some courts. For instance, the Court of Final Appeal ("CFA") has an establishment of four and a strength of four; the High Court, which has an establishment of 14, has a strength of 13, falling short of the establishment by a narrow margin only, and it is still OK. Then we will see that the situation is not quite OK in some other courts. The Magistrates' Courts and other Tribunals have an establishment of 99 and a strength of only 68, meaning that only 68 of the 99 posts are filled. President, if we look at it more closely, we will see that the High Court Masters' Office has an establishment of 15 but how many people are actually working in these posts? Two only. Let us further look at the District Court Masters' Office. What is its establishment? Nine people. But how about its strength? Zero. What exactly is going on?

Regarding the total staff establishment of the various levels of court that I mentioned just now, there should be 218 Judges and Judicial Officers according to this breakdown but the actual strength is only 156, meaning a vacancy rate of LEGISLATIVE COUNCIL ― 7 November 2019 1373 nearly 30%, including the aforesaid case of the District Court Masters' Office which has an establishment of nine people but a strength of zero. I wonder if the Government is clearly aware of it. What exactly is the problem we now face?

President, these figures aside, actually the community has, in the past, also expressed concern about the manpower shortage in the Courts or the adequacy of Judges for hearing cases, and this is not the first time that we discussed this issue in the Legislative Council. I have looked up some information and found that at the meeting of the Legislative Council on 13 June 2012, Mr Abraham SHEK asked a question on the same subject matter under discussion today, namely, the retirement ages of Judges and Judicial Officers. A reply was given by the then Acting Chief Secretary for Administration, Michael SUEN. Mr SHEK's question actually bears relevance to the current situation. He particularly mentioned that half of the 38 Judges working in CFA, Court of Appeal and Court of First Instance of the High Court would reach the statutory retirement age of 65 in the following five years, and although an extra term of three years might be allowed under "exceptional circumstances" relating to operation needs, he was gravely concerned about whether, on the retirement of these Judges who accounted for over half of the total number of Judges, the Government would be able to recruit their successors in time. At that time, what made him ask this question was a very special case of a permanent Judge of CFA who would retire in October 2012 when he reached 65 years of age. After the retirement of this CFA Judge at 65, of course it was necessary to look for his replacement who turned out to be a Judge nine months older than the retiring Judge. In other words, a person who would retire at 65 was to be replaced by a person aged over 65.

In this connection, Mr SHEK asked a question about whether the Judiciary was so understaffed that a retiree had to be replaced by someone who was even older. In his reply on the recruitment of Judges, Mr Michael SUEN, the then Acting Chief Secretary for Administration, said this: "… the recruitment exercises for Judges of the various levels of courts just mentioned are in good progress and are expected to be completed in 2012. Thee Chief Justice is cautiously optimistic about the outcomes of these ongoing recruitment exercises and hopes that, upon their completion, most of the fillable vacancies would be substantively filled by suitable candidates." The Government was optimistic, saying that the recruitment exercises were in very good progress and that the vacancies would be filled very soon.

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As for the special case which I mentioned just now about a retired Judge being replaced by an older Judge, the Government replied at the time that although the successor was over 65 years old, as he was given an extra discretionary term of three years by the Judiciary before he turned 65, his retirement age would be 68 and so, he still met the requirement even though he was over 65 years old. Therefore, the Government said, "His advancement to the CFA would be fully justified and deserved." I do not mean to challenge or doubt the ability of this Judge but from this reply, we can see that the Government and even the Judiciary did not provide an answer indeed. In the reply it was only said that his term had been extended for three years and therefore he could take over even though he was over 65 years old. As a result, this person aged over 65 succeeded a person who just turned 65 and took over to be a Judge.

Just now I mentioned that the Government said at the time that the recruitment exercises for Judges were in good progress. This question was asked seven years ago in 2012. If the recruitment exercises were in good progress back then, the situation should be very good now, but why is it not so in reality? President, the figures that I shared with you just now show such substantial discrepancies between the establishment and the actual strength, and there is even an office with a strength of zero, which means that nobody is working there. If the recruitment exercises in 2012 were "cautiously optimistic" and in good progress, what has happened over the last seven years? Regarding these proposals on extending the retirement ages of Judges under consideration today, are they pragmatic proposals which will help attract talents and retain experienced Judges and Judicial Officers, just as I quoted the Judicial Committee earlier on? The situation remains the same even though it was said to be so optimistic in 2012. Will the situation remain unchanged after we passed these proposals today? What exactly is the view of the Government or the Judiciary? I very much wish to hear the response of the Government in order to dispel our doubts.

After asking about the manpower shortage in his question in 2012, Mr SHEK went on to ask whether the waiting time of the hearing of cases would be affected, or whether the waiting time would be affected by the manpower shortage and whether an extension of the retirement age of the Judges would help reduce the waiting time of the hearing of cases.

LEGISLATIVE COUNCIL ― 7 November 2019 1375

In this connection, President, I can share with Members some figures. Let us take a look at the Hong Kong Judiciary Annual Report 2018 which stated the average waiting time for cases in the past few years. In fact, the Judiciary has set targets. For example, the target for the Civil Fixture List is that a hearing could be arranged in 180 days, and according to the report, a hearing could be arranged in 168 days, or some five months, on average, which met the Judiciary's target of 180 days. The target of the Judiciary is 180 days and in 2018, a hearing could be arranged in 168 days.

I do not mean to allege the Judiciary of fabricating the figures but I personally have had some experiences in this respect, President. There is a case that I am currently dealing with, and as both parties are ready for setting down the case for trial, I, therefore, went to the High Court to file an application on 21 March 2019 and the date of hearing is scheduled for 11 November 2020, which is 20 months later.

President, before a case is set down for trial, the preparatory work is quite time-consuming. It takes two years from the start until preparations are made properly, and now it takes another 20 months from setting down a case to hearing. Then the hearing of the case by a Judge will at least take several months or even more than a year before there will be a judgment, and this happens from time to time. In other words, probably it will take four or five years the soonest before a judgment will be made on the case. What is the problem then? First, to the aggrieved party, this is justice delayed and as a Member said earlier, justice delayed is justice denied. More importantly, the second problem is that in many cases, not all the witnesses are young and healthy as the witnesses may be old in some cases. If, in the process from the occurrence of the case to its hearing, the witness can testify in court only four years later, I must say that not every witness can wait till the day.

If I am a litigant and if my witness unfortunately passed away while the case remains pending hearing, I would lose my witness. Then how can judicial justice be done for my case? These problems all have to do with the manpower in the Judiciary and closely related to whether extending the retirement age of Judges is helpful. Therefore, President, I hope that the Government can give a response on these problems, so that we can better understand the current "health conditions" of the Judiciary now.

President, I so submit.

1376 LEGISLATIVE COUNCIL ― 7 November 2019

MR POON SIU-PING (in Cantonese): President, I am not a member of the Bills Committee on Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), but I was inspired to express my views in the Second Reading debate of the Bill after learning in the news that Chief Justice of the Court of Final Appeal Geoffrey MA decided to retire in 2021 at age 65 and will not seek an extension of service.

President, I believe Members all support the proposal on extending the retirement age for Judges as presented in the Bill. However, the Bill adopts a two-tiered retirement age system for Judicial Officers. The retirement age for Judges of the Court of Final Appeal, High Court and Court of First Instance will be extended from 65 to 70, while the retirement age for Members of Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level will be extended from 60 to 65. According to the Government's paper, this would avoid creating promotion blockages for junior Judges and Judicial Officers and attract new blood. This virtually means Magistrates over 65 who wish to continue serving the Judiciary can only seek promotion to judge positions. This measure may help relieve the shortage of Judges, but for the lower levels of the Judiciary, such as the Tribunals, a shortage of Magistrates may emerge.

Take the Labour Tribunal as an example. The establishment has been maintained basically at 92 in the past few years, but the average waiting time for cases from filing to first hearing was 25 days in 2018, which was one day longer than in 2017; the number of case disposals was 3 825 in 2018, which is much lower than 4 740 in 2017. I hope the Government, while concerned about the shortage of Judges, will also pay attention to the shortage of Judicial Officers at lower levels and ameliorate the general shortage of judicial manpower for higher efficiency.

President, the fact that Chief Justice Geoffrey MA will not seek to extend his service shows that extending the retirement age for Judges is not a solution to the shortage of Judges in Hong Kong. In fact, there is a significant gap between the staff establishment and the actual strength. As at March this year, against the establishment of 218 Judges and Judicial Officers, only 156 were substantively filled, representing a shortfall of 62. With the substantial caseload and shortage of manpower presently, this amendment that extends the retirement age is actually not helpful at all to the case backlog.

LEGISLATIVE COUNCIL ― 7 November 2019 1377

President, Hong Kong's judicial system is the cornerstone of its status as an international metropolis. I believe it is somewhat difficult to attract talented judicial personnel to take up judge positions amidst severe social division. For this reason, apart from extending the retirement age for Judges, the Government must also introduce more measures to attract talented legal professionals in Hong Kong to join the Bench.

President, I so submit.

MR CHAN KIN-POR (in Cantonese): President, the main purpose of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), which is under consideration today, is to extend the statutory retirement ages for Judges and Judicial Officers and provide for the relevant arrangements. The Judiciary points out that the Court of First Instance ("CFI") of the High Court has been persistently facing recruitment difficulties. Therefore, it is necessary to extend the statutory retirement age for Judges of the Court of Final Appeal ("CFA") of the High Court and at levels above it from 65 to 70, while setting the statutory retirement age for Judges at levels below CFA of the High Court at 65. Moreover, the discretionary retirement arrangements will be maintained. Under the new arrangements, the maximum retirement age for Judges of CFA is 76 and that for Judges of CFI and the Court of Appeal ("CA") is 75. And the maximum retirement age for other Judges is 70.

On the surface, we should support the Bill because it can retain veteran Judges with ample experience, as well as attracting experienced and outstanding legal professionals to the rank of Judges. In fact, it takes a long time to nurture a Judge, who must have broad and profound legal knowledge and abundant judicial experience. Therefore, virtuous and respectable Judges are absolutely important assets of society. At the same time, with the increasing longevity of humans, it is a global trend to extend retirement age. Therefore, insofar as working ability is concerned, there are indeed sufficient grounds for extending the retirement age of Judges.

However, as Members of the Legislative Council, on this question of whether to lend support to the extension of the retirement ages for Judges and Judicial Officers and the relevant arrangements, we actually have to consider the views and opinions of Hong Kong citizens about the Court and Judges.

1378 LEGISLATIVE COUNCIL ― 7 November 2019

The prevalent social unrest has severely undermined many core values of Hong Kong, including compliance with the law, tolerance and courtesy, which were held in esteem before. Now what is left is only the rule of law, which is the most important core value and one that we absolutely have to safeguard. To convince people that the rule of law still prevails in Hong Kong, we wish to express people's misgivings about the Court and Judges in the hope that the authorities will listen to their views.

First, many people have the impression that "the Police arrest suspects while Judges release them". Many suspects who appeared to have committed serious crimes and arrested on the spot would mostly be released on bail and then be brought to trial only after a long period of time.

Second, different sentences are handed down for similar crimes. Some offenders are sentenced to imprisonment and some are made to serve community service orders. Though I understand that the circumstances of every case are different, ordinary people would find dissimilar sentences imposed for similar crimes unacceptable. It is also one of the crucial criteria of determining if the Court and Judges are fair and impartial.

Third, 3 000-odd people have been arrested so far but only a few hundreds of them have been formally charged. People would then question: Why has the Court not adopted special measures, such as the establishment of a special court, to expedite the process? The Court lets cases pile up, causing injustice to the arrested, as they do not know when they can stand a fair trial. Pending trials, they feel scared and anxious and are under tremendous mental pressure. People ought to know that their families suffer too and are put under enormous strain. Let us imagine, if each arrested person has four family members―actually perhaps not only four―such as parents, grandparents, children …

PRESIDENT (in Cantonese): Mr CHAN Kin-por, please come back to the question of this debate.

MR CHAN KIN-POR (in Cantonese): President, I beg your pardon?

LEGISLATIVE COUNCIL ― 7 November 2019 1379

PRESIDENT (in Cantonese): Mr CHAN, I consider your speech off topic. Please come back to the question of this debate.

MR CHAN KIN-POR (in Cantonese): President, I am explaining the factors I consider in determining whether or not I should support the Bill. I think it is important.

PRESIDENT (in Cantonese): Please continue.

MR CHAN KIN-POR (in Cantonese): Perhaps can you please allow me some time to continue my explanation? It is the first time that I speak in this debate, is it not? I hope the President can understand that I am not beating about the bush but am trying to genuinely reflect people's views. Moreover, if the Government cannot fully dispel the misgivings I have just stated, I may not support the Bill. Therefore, I consider myself responsible for clearly explaining to society which problems require handling first, before I indicate my support for the Bill.

Come to think about this, if each of the arrested persons has four family members, such as parents, grandparents and children, it means that―3 000 times five―15 000 people will feel distressed. Hence, why do so many people say Hong Kong is in such chaos now? Because at least 15 000 people feel distressed and are dissatisfied with the Government.

On the other hand, another group of people feel worried and anxious about the arrested not being brought to trials over a long period of time. If lawbreakers are not brought to trials and due penalties are not meted on them in a timely manner, it only makes people think that the Court is a "toothless tiger". If the authorities continue to not take actions in this regard, such as setting up a special court to deal with the backlog of cases, Hong Kong citizens will definitely feel that justice is not done.

Fourth, can Judges strictly adhere to neutrality and impartiality? A Judge expressed named support for political activities, and judicial personnel also photographed their staff passes and posted them on social media in support of such political activities. Such conduct would only accentuate the negative 1380 LEGISLATIVE COUNCIL ― 7 November 2019 impression people have of Judges and the judicial system. When Judges are considered to be not impartial and hold personal stances, people would thus be caused to lose confidence in them.

Fifth, as regards the legal aid system, many people are worried that the approval of legal aid applications is overly lax. Even cases with long odds of winning would be granted legal aid. It only gives people the impression that the party concerned is transferring benefits to the legal profession and creating a great amount of wealth for the legal profession using public funds. People thus feel enraged but cannot find any way to lodge complaints.

Hong Kong is a society that upholds the rule of law. People very much respect the judgments handed down by the Court. If people consider that Judges are unfair, partial and biased in the discharge of their duties, the last pillar of Hong Kong will be completely demolished. For this reason, the Court of Hong Kong is duty-bound to prove to people that it gives no regard to politics and definitely conducts trials and passes sentences in strict compliance with the laws of Hong Kong. Also, Judges definitely do not practise favouritism. Many young people once held the misconception of achieving justice by violating the law and thought that so long as they were doing what they considered just, they could break the law without being sanctioned. Fortunately, the Court has earlier made a clear point that achieving justice by violating the law cannot be a defence of criminal charges. The law is violated when it is broken. Therefore, I consider gate-keeping by the Court very important.

Why do I think that my speech made just now is relevant, even crucially relevant, to the Bill? Because if the Court fails to properly perform its duty as a gatekeeper to meet people's expectations and if people have no confidence in the Court, why should the retirement age for Judges be extended? Why not let some Judges retire as soon as possible and then recruit and train some others who are better?

President, I am very grateful for your indulgence, but I will finish speaking very soon. The law is violated when it is broken. The gate-keeping role of the Court is crucial. It has to rectify many false ideologies prevailing in society in a timely manner. In particular, to some people from a legal background who have presented incorrect points of law, their mistakes should be pointed out to them and they should be reprimanded straight as soon as possible. Moreover, the Court has to conduct trials on unlawful acts as soon as possible and pass LEGISLATIVE COUNCIL ― 7 November 2019 1381 judgments and sentences on the basis of highly transparent and uniform criteria so as to maintain people's confidence in the rule of law in Hong Kong. Only by doing so can the extension of the retirement age for Judges, which is under discussion now, be meaningful and merit our support. Thank you, President.

MR AU NOK-HIN (in Cantonese): Mr LEUNG, before making my representation on the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), I have to make a declaration. I am involved in some cases listed for hearing, and the cases which I am involved include an appeal case at the Final Court of Appeal and a case in hearing at the District Court. I think though I am engaged in legal proceedings, it will not affect my speech on the Bill this time around.

What a coincidence that I am sharing my views close to the adjournment of the Council meeting every time, and this time, we are discussing the extension of the retirement age for Judicial Officers. Sometimes, as seen from news reports, we may consider the judgments of certain Judges incomprehensible no matter what political stance we hold. Yet, in general, the people of Hong Kong accord considerable respect to and affirmation of the contribution made by Judicial Officers in upholding the rule of law. Even though the remuneration of Judicial Officers is after all less attractive than that of practising lawyers, competent persons intent on becoming Judicial Officers have not chosen to take up private practice. As for Judges of courts above District Court level, as Members know, they cannot return to private practice even after their departure from the Judiciary, except with the discretionary approval of the Chief Executive. This means that they chose to become Judicial Officers in the first place because of their vision for society.

Yet, according to the figures as at the previous financial year, the discrepancies between the establishment and the strength of Judges and Judicial Officers at various levels of court reflect that the vacancies at various levels of court have been left unfilled for some time and the shortage is not temporary. A point particularly that warrants Members' attention is that only two out of the 15 vacancies at the High Court Masters' Office have been filled and all vacancies at the District Court Masters' Office remain unfilled. The Bills Committee of the Legislative Council considers this situation absolutely unacceptable.

1382 LEGISLATIVE COUNCIL ― 7 November 2019

Let us look at the Report on Judicial Remuneration Review 2018 published by the Standing Committee on Judicial Salaries and Conditions of Service. It is stated that retirement is the main source of wastage among Judges and Judicial Officers, and the retirement situation may pose challenges to judicial manpower, which is a long-standing problem and the background for the Government introducing the Bill. During the scrutiny of the Bill, I have questioned whether or not the extension of the retirement age for Judges can effectively ensure that the Judiciary will have sufficient manpower to dispose of the case backlog. The Government follows the logic that by merely raising the retirement age, the term of office of Judicial Officers will be extended. To put it frankly, it is asking "Mr Justice LEUNG" and "Mr Justice AU" to stay for a few more years to hear more cases before their retirement, hoping this will control the rate of wastage.

We have checked the Controlling Officer's Report for the past two years, stating specific issues to which the Judiciary should pay attention. Among them, grave concern has been raised about whether or not the increase of judicial manpower will speed up the disposal of case backlog. The increase of manpower will certainly include retaining judicial talents. Apart from manpower increase, the report has also mentioned overseeing the waiting time at various levels of court, particularly the High Court. Currently, the court waiting time is not affected merely by the shortage of manpower, as there are many other reasons. As mentioned in Question Number JA033 in the Controlling Officer's Rely of the Examination of Estimates of Expenditure, increasing complexity of court cases is also one of the causes for the lengthy court waiting time.

Honourable colleagues, in stating this point of view, I must mention the problem faced by the Judiciary recently, which is also related to the social problem in recent months. As a result of the unprecedented movement on "No China Extradition", 2 600 persons have been arrested and prosecutions have been brought against 480 persons by the Department of Justice ("DoJ") since the session of the Legislative Council ended in June. The latest figure may be higher. Yet, to my understanding, the relevant figures have reached this level for the time being. On 2 October this year, we saw 95 persons brought before the Court for riot charges, and the Magistrate on duty on that day had to work till 10:45 pm to complete all the hearings.

Hence, we say "Five demands, not one less". We request "retracting the characterization of the protest as riots", for they are making "undue prosecution". Their undue prosecution has resulted in 95 persons being brought before the LEGISLATIVE COUNCIL ― 7 November 2019 1383

Court all for the charges of rioting, yet we would doubt whether or not it is true that they all have been involved in riots. These indiscriminate arrests and unjustified prosecutions driven by political motives have increased the workload of Judicial Officers, have they not? Yet, some of our colleagues in this Council may not share this view, and Mr CHAN Kin-por who is in his "harvest period" is a case in point. Since they are merely concerned about stopping violence and curbing disorder, they think priority should be accorded to cases related to chaos and such cases should be processed in a centralized manner. Just now, Mr CHAN even proposed the setting up of a special court and considered this the solution to the problem. Yet, as I pointed out earlier, the number of persons prosecuted is 480 at present and the number will rise gradually. Do they think that a court operating 24 hour daily in all circumstances will be the solution to all the problems?

I wish to point out that efficiency and speed should not override judicial justice. In a statement made by the Judiciary a few days ago, it emphasized that "the Hong Kong courts exercise judicial powers independently and strictly in accordance with law; in adjudicating cases, the courts always ensure that they are dealt with and disposed of fairly and justly, and that all the legitimate rights of all the parties before the courts are fully protected in accordance with law". Sometimes, we really find the logic of some of our colleagues incomprehensible. They consider that the extension of the retirement age for Judges is conducive to upholding the rule of law, yet they pay no attention to whether or not the workload of Judges is reasonable. Currently, the courts are facing an increasing number of political cases, yet they do not see this point. They consider it fine so long as all cases are taken to the Court for adjudication, and problems solved if all the cases are adjudicated. Moreover, they are now applying the guilty presumption, considering that all these people have done wrong and will be convicted after hearing.

In this connection, we have not yet taken into account the situation in recent years. Members should have noticed the number of cases lost, prosecution cases initiated by DoJ. Some of these cases were lost due to incorrect charges, failure to submit documents or submission of wrong documents. Yet, despite their mistakes, they merely play bad loser. Whenever a case is lost, they will apply for appeal, striving for "infinite revival" till the cases are submitted to the Court of Final Appeal. How many judicial proceedings have been created and how much burden have these proceedings imposed on Judicial Officers?

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Mr CHAN said earlier that the authorities should recruit new blood. Yet, I want to know where he can find these new comers. Should we look for foreign aid through overseas recruitment exercises? Is he going to create some new Judicial Officers miraculously in an instance now, or can we simply switch to computer-aided adjudication? In any case, in 2017, in fact, the Judiciary formulated the New Practice Directions, in which the implementation of the Criminal Expedited List was proposed to enhance the management functions of the High Court in criminal proceedings and cases. In the Controlling Officer's Report of the previous financial year, the Judiciary also expressed that it would consider ways to measure the average waiting time and the setting of its target in the light of the operation of the Criminal Expedited List. Certainly, regarding specific assessment indicators, these are not available for the time being, yet I think the issue should be followed up in this direction.

Hence, though the intent of the Bill is good in extending the retirement age for Judicial Officers, thereby enabling more Judges to stay in the Judiciary, and it follows the procedure of the legislature, I consider this arrangement failing to address effectively the long-standing problem of heavy workload now faced by the majority of Judicial Officers. I would like to reiterate that if we do not shorten the waiting time at various levels of court but merely extend the retirement age for Judges, it may not address the problem of heavy workload faced by Judicial Officers in the middle levels. If the Government drafts legislation on the one hand but initiates on the other prosecutions on a large scale and intensifies political prosecution, it will be like throwing a stone at its own feet and the logic of the policy is self-contradictory.

Lastly, I would like to share an article from The New York Times. Please allow me to read out the headline in English, that is, "How Mandatory Minimums Enable Police Misconduct", though the case mentioned in the article is not a local case. The article states that more often than not, a defendant facing trial may be denied absolute justice. The reason is that our courts or political systems are tilted towards the prosecution. This is the case in various places around the world, for the authorities have greater trust in the prosecution and law enforcement agencies that they can handle law enforcement issues. In the end, if people lacking power and status seek to get justice done through the judicial system, they will have to take a more arduous path than that of the Police or law enforcement agencies. Hence, if the issue of political prosecution is not addressed, it will not merely increase the workload and burden of Judicial Officers but will also make the path of seeking justice increasingly longer for people in society. I so submit.

LEGISLATIVE COUNCIL ― 7 November 2019 1385

MR HO KAI-MING (in Cantonese): President, I am not a legal professional, but I guess many members of the public also have views on the extension of the retirement age of Judges.

President, I will compare the extension of the retirement age of Judges with that of civil servants. Last year, the Government put forward the proposal of extending the retirement age of civil servants. Many civil servants, particularly civilian staff, may choose to extend their retirement age from 60 to 65. However, the Government refused to extend the retirement age of teachers, be they in aided or public schools―mostly aided schools―from 60 to 65. I will make a comparison in this regard.

President, I think civil servants, similar to lawyers or Judges, may enjoy high salaries paid on time. However, compared with Judges, the entry requirements for civil servants may not be as stringent. We see that wastage of senior staff has emerged in the 180 000-strong civil service, but if they wish, they may choose to extend their retirement age from 60 to 65. Certainly, during the discussion in the Panel of the Legislative Council, the Government pointed out that it entailed additional expenditure on pensions which needed to be addressed, but this was merely a problem with details.

On the other hand, regarding the retirement age of teachers, during the discussion in the Panel on Education, the Education Bureau was unwilling and refused to extend the retirement age of teachers in aided schools on the grounds that every year, many new teachers trained by the universities would become available. The Education Bureau held that the supply of teachers was sufficient, so it was unwilling to extend the retirement age of teachers to avoid impeding the promotion opportunities of new teachers in future.

The comparison mentioned just now shows the difference in the approaches adopted by the Government for the extension of the retirement age of these two types of persons. In respect of civil servants, the Government thought that government jobs were still attractive and the civil service was larger in size. It was thus willing to extend the retirement age of civil servants. On the other hand, given the abundant supply of teachers but restrictive nature of the profession, the Government did not see the need and was unwilling to extend the retirement age of teachers.

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President, what is the point I am trying to make? President, today many Honourable colleagues said they wished to extend the retirement age for Judges. Frankly, I do not particularly have any strong views on this. I heard many Honourable colleagues say that the manpower of Judges was inadequate and trials of cases took a long time, thus undermining the fairness of the judicial proceedings because the time taken for the trial of a case would indeed affect whether the case could receive a fair ruling.

However, I would like to raise a point. I do not think we should extend the retirement age for judges without any condition at all. Should there not be a certain process of selection? In fact, under the civil service system, there are selections. Certain requirements are imposed for the extension of the retirement age of civil servants. Chief Secretary, I do not know if I am wrong. I see there are four requirements: first, institutionalizing the selection process by drawing reference from the modus operandi of promotion and recruitment; directly extending the retirement age; relaxing the approval criteria for further employment; and reappointment.

However, concerning the extension of the retirement age for Judges, is there actually a relatively reasonable mechanism echoing the voices of the community at large? President, my knowledge may be limited but as I can see, the Judicial Officers Recommendation Commission currently consists of nine members. Some commentaries on current affairs, including those in YU Fei's column in Sing Tao Daily, have mentioned that this membership may not be able to carry the people's voices. Why? Among these nine members, six have a legal background, including Chief Justice of the Court of Final Appeal Geoffrey MA, the Secretary for Justice―the incumbent is Teresa CHEUNG―two Judges, namely, Mr Justice Andrew CHEUNG and Madam Justice Carlye CHU, and two representatives of lawyers, namely, Philip John DYKES, SC and Dr Thomas SO. There are also three lay members, namely, Anita FUNG, Pamela CHAN and LIU Pak-wai. Frankly, my social ties are kind of weak. I do not know who these three latter persons are. When members of the public do not understand how the Judges make their rulings on certain cases, how can people's voices be brought into the process of selection or reappointment of Judges of the Judiciary? President, I do not see such a mechanism now.

No matter whether members of the public have been recently affected by the incident of opposition to the amendment exercise or stopping violence and curbing disorder, I believe they have misgivings about the efficiency of the Judiciary. Certainly, most people of Hong Kong still regard the impartiality of LEGISLATIVE COUNCIL ― 7 November 2019 1387

Judges as relatively acceptable. I think this is beyond all doubt. However, are members of the public actually satisfied with the candidates or rulings of Judges? I think members of the public really have doubts about it.

Just now I mentioned the Government's refusal to extend the retirement age of teachers on the grounds that it would impede the training of the new generation of teachers. But I wish to ask, in the discussion on the extension of the retirement age of Judges, did the Government take the opportunity to deal with the training problem of Hong Kong Judges? The extension of the retirement age can only ease the pressing need. To tackle the problem at root, our training effort has got to be better. However, as I heard many Honourable colleagues say just now, the remunerations of Judges are not attractive. The Judiciary is unable to attract lawyers to join the Bench. Upon retirement or resignation, a Judge cannot work as a lawyer again because it is not allowed by the law. He can only engage in teaching or mediation work. Did the Government take the opportunity to deal with these problems? Did the Chief Secretary jot down these problems? When the Judiciary needed an overhaul, was the training problem of Hong Kong Judges addressed as well? We did not see the Government make any great effort to do so.

President, now many members of the public have mentioned that some Judges in Hong Kong are not of Hong Kong origin or Chinese nationality―President, I need to make a correction. Hong Kong people should be of Chinese nationality―many Judges are not of Chinese nationality. These Judges came from regions practising common law, but when it comes to the interpretation of cases, especially sensitive ones, if they are not Hong Kong people or Chinese, they are indeed less sensitive to certain issues than Hong Kong people or Chinese, being particularly insensitive to national politics. President, as a matter of fact, members of the public have a lot of views on their rulings not only on cases relating to politics but also civil cases. I know there was a case―I do not know if it is appropriate to recount it here. President, please stop me if you consider it inappropriate―it was a case about jay walking. According to the press reports, the trial of the case had lasted more than a year, involving a dispute between the Judge and the lawyer. The Judge even issued an arrest warrant, putting the lawyer on the wanted list.

This case attracts the following questions: How is the appraisal system for Hong Kong Judges? Are members of the public satisfied with the performance of the relevant Judge? Can the public tell the Judge through any platform: I am not trying to influence judicial independence because your opinion is 1388 LEGISLATIVE COUNCIL ― 7 November 2019 independent. I understand and agree with this. However, regarding the ruling on this case, how can the public effectively tell the Judge through a mechanism that they consider her manner of work outrageous? Why was she unable to conclude a case of jay walking after spending more than a year? In fact, have the judicial resources in Hong Kong been committed to relatively unsuitable places? I believe members of the public are currently unable to express their views through any mechanism.

I believe members of the public will agree that the Judiciary should process cases independently, but we should also let them express their views on the rulings on cases. Audience should be given to these voices. We cannot influence the rulings of Judges through any mechanism. However, in selecting Judges, can someone able to represent or relay people's voices be appointed to take part in the selection of Judges? I believe a mechanism is needed to handle this. Only then will the public be convinced, and justice or credibility of the Court be manifested. Otherwise, no matter which colour the people support, if the Judges cannot hear the people's voices, unaware that their understanding of the matter is far different from that of the ordinary masses in Hong Kong, then their rulings will fail to convince the public.

President, everyone's knowledge is limited, and we all have our own box of knowledge. A certain part of the knowledge box of the people of Hong Kong may overlap with that of the Judges because we live in a common law jurisdiction. However, when it comes to knowledge beyond common law, such as recognition of Hong Kong as part of China by Chinese society, the importance attached by members of the public to these matters may be different from that by the Judges. How can Judges be facilitated in hearing people's voices and views? In particular, in determining the candidates of Judges as well as the extension of their retirement age, simply put, how can we enable suitable Judges or those we consider convincing to continue to serve in the Hong Kong Judiciary? I see the deficiency in this aspect.

Therefore, President, I approve of the extension of the retirement ages for Judges and Judicial Officers because it can relieve the pressing need, but I hope the Chief Secretary can concurrently address the problems concerning the training of Hong Kong Judges and how to attract talents to the Bench. This is the way to tackle problems at root. If, some day, since too many people wish to become Judges, the Judiciary needs not extend the retirement ages for Judges and Judicial Officers, that means there is a reasonable system facilitating succession in a sustainable manner. But President, I do not see such a system at the moment. LEGISLATIVE COUNCIL ― 7 November 2019 1389

Let me digress a little. Regarding the Judicial Officers Recommendation Commission, Miss YU Fei has also mentioned―I have not yet verified this―it has been reported by WikiLeaks that back then, a barrister mentioned that they manipulated the entire selection process of Judicial Officers. This is cited from WikiLeaks. Was that true? Can the Government, through reasonable procedures, devise a system for identifying Judges whom the people of Hong Kong find convincing? I believe this has got to be done. Certainly, it does not necessarily need to be handled in this Bill, but I hope the Chief Secretary can hear these voices. I believe members of the public hope that the Government can deal with the selection of Judges more properly. Only then will it meet the people's expectation.

President, I so submit.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(Mr Dennis KWOK indicated his wish to speak)

PRESIDENT (in Cantonese): Mr Dennis KWOK, please speak.

MR DENNIS KWOK (in Cantonese): President, actually we have been discussing this issue for years, and this is also one of the reforms the legal profession has long been requesting implementation by the Judiciary. The legal profession also holds virtually a unanimous view on this issue, for we consider that the retirement age of Judges should be kept abreast of the times. As the retirement age of Hong Kong people or many professionals continue to be extended, in fact it is an absolute waste to require Judges to retire at the age of 60 or 65. Because the service years of Judges are vitally important to their experience, especially in respect of the hearing of cases, since experience needs to be accumulated. Therefore, we now see that many outstanding lawyers―be they in private practice or working in other government departments―are actually intent on joining and serving the Judiciary, but they are deterred from doing so since the retirement ages are set at 60 or 65. It is because if they decide to join the Judiciary in their fifties, their remaining service period would be less than 10 years. This will not only pose grave constraints on the service of the Judiciary or the judicial service as a whole, but also render a lot of people reluctant to join the Judiciary. The rationale is actually very simple and readily comprehensible, so I do not quite understand why many Members of the 1390 LEGISLATIVE COUNCIL ― 7 November 2019 pro-establishment camp have to give such lengthy speeches. Certainly, it is necessary for the Judiciary to retain talents and allow them to serve in the Judiciary for a longer time, and this is our hope as well.

As a matter of fact, we can see that those from foreign countries―such as the United Kingdom and Australia―coming to Hong Kong to serve as non-permanent judges of the Court of Final Appeal ("CFA") are all in their seventies or eighties. Most of them are older than the serving permanent judges of CFA. When dealing with a motion to be proposed at a later time, we are going to endorse the appointment of one of the non-permanent judges from the United Kingdom who is not very young either. Notwithstanding this, no one―including all other common law jurisdictions―has ever questioned his ability on the ground that he is over 70 years of age. This exactly proves that Hong Kong must keep abreast of the times by reforming the retirement system of Judges, so as to allow those quality Judges in Hong Kong to remain in service up to the age of 70 or above, or even 76. This is a very simple rationale.

Certainly, when it comes to the recruitment of Judicial Officers, it is absolutely impossible to resolve the problems we currently face merely by extending the retirement ages. In fact, it has been a long-standing wish of the legal profession that the Judiciary would consider recruiting more qualified and properly trained candidates from overseas to serve as Judges in Hong Kong. In particular, there has been a long-standing shortfall of manpower in the Court of First Instance ("CFI") for a long time, thereby resulting in lengthy case listing time. For instance, it is now necessary to wait for four to six months after applying for a three-hour session with a Judge, a situation which is absolutely undesirable. Take Singapore as an example, it is definitely not necessary to wait that long for one to apply for a three-hour or half-day session with a Judge of the court of first instance there. As such, why do many people choose not to bring their case to court in Hong Kong but switch to other places instead? Because they are aware of the problems with the efficiency of Hong Kong courts, especially that of civil litigation cases in CFI. The legal profession has in fact been voicing this problem for years. If the problem lies in manpower shortage, the Judiciary definitely possesses adequate resources to recruit additional manpower. If a shortage of local talents is the reason, why has the Judiciary not considered recruiting foreign judges to work in Hong Kong? I hope the Judiciary will give this consideration as I see nowadays that almost half of the Judges hearing cases in the High Court are deputy judges. I am not saying that deputy judges are not good, but the problem is, when the daily cause lists are all or mostly filled by deputy judges, it obviously reflects the manpower shortage LEGISLATIVE COUNCIL ― 7 November 2019 1391 currently faced by the Judiciary. It cannot be resolved solely by extending the retirement ages, but it is necessary to explore the problem starting with the system itself.

A few years ago, we lent our support to the Judiciary improving the pay and benefits of CFI Judges and District Court Judges, and the situation has greatly improved nowadays. I believe that, President, those legal professionals who wish to join the Judiciary to serve Hong Kong people will not―and will never―do so solely for the sake of money. If some people join the Judiciary purely for the sake of money, or if the Judiciary attracts talents to the Bench by means of money, those attracted may not be suitable candidates for the Bench. It is because I believe one would not wish to join and serve the Judiciary purely for the sake of money. The salaries of Judges will never catch up with the income level of private practitioners if the latter is adopted as a benchmark, while it is also impossible and unnecessary to catch up with such a level. As I said just now, those who join the Judiciary must have their own reasons, so there is no need to use salaries as an incentive. We believe the current remuneration of Judges is quite good already, and they are rather well-remunerated when additional allowances, etc. are also taken into account. They join the Judiciary, of course, to serve the community. That said, as mentioned by some Honourable colleagues earlier, it is indeed necessary to tackle the problem of heavy work pressure. Otherwise, even if the retirement ages were extended, they might not be willing to work up to the age of 70 years since their work is too harsh, or they might even not be willing to work up to 65 such that they would opt for early retirement. As a result, failure to address the problem of work pressure will actually create problems in the long term.

The legal profession has raised this point in the past, namely in addition to recruiting additional manpower, with regard to training and supporting staff, whether the Judiciary has made strenuous efforts to train officers such as Judicial Clerks to ensure that they receive basic legal training and to ensure that Judges, when hearing cases, are assisted by young solicitors or barristers to whom we refer as "Judicial Assistants". These Judicial Assistants will accompany the Judges in hearing cases. They will not write the verdicts but are solely responsible for assisting the Judges in reviewing documents, conducting researches or arranging and sorting out documents, which are in fact very helpful to the Judges. Therefore, the Judiciary should also consider expanding the existing schemes which offer these supporting measures, so that more Judges, be they Judges of CFI, the Court of Appeal or CFA, are provided with enhanced assistance from these young solicitors or barristers. 1392 LEGISLATIVE COUNCIL ― 7 November 2019

In fact, this is also an excellent opportunity for young solicitors and barristers to join and work in the Judiciary, through which they can gain some understanding of the internal operation of the Judiciary, as well as the analysis and mindset, etc. of Judges early. These are very useful to young lawyers. Therefore, the Judiciary should also consider other supporting measures apart from extending the retirement ages.

President, one last point, when the Judiciary recruits legal professionals in private practice as Judges, it often targets at those from the barrister stream. I am not saying that such a practice is problematic, as barristers―especially Senior Counsels―are definitely much more well versed in the operation of the Courts and have richer court experience than many solicitors engaged in other sectors or different fields. Having said that, I hope the Judiciary will pay greater attention to solicitors, especially those with experience in litigation, since a good many of them are talents suitable for the Bench. At present, many serving Judges of the High Court have practised as solicitors instead of barristers, and their current performance, no matter in terms of the workload they shoulder, etc., is respectable. In view of this, I hope that the Judiciary will actively consider recruiting solicitors with experience in litigation and invite them to join the Bench when conducting recruitment in the legal profession. It is a pity that, in recent years, we seldom see the Judiciary appoint solicitors as Judges on a long-term basis. I am not talking about deputy judges, but appointment as Judges or Judicial Officers long term. It is such a pity that we rarely see this happen.

President, during the past day, I heard many Members of the pro-establishment camp, seizing this opportunity, voice the criticism that the Court had adopted a biased approach, or saying that "the people arrested by the Police are released by the Judges". I do not think these remarks have anything to do with the subject of extending the retirement age of Judges under discussion today. I think they have all digressed from the question, and should not be raised in this debate as arbitrary criticisms of Judges. Neither should they talk about some cases that are under trial by the Court or in the process of appeal on this occasion. I do not intend to follow these Members to say something that is insignificant or entirely irrelevant to the subject matter on this occasion. Neither will I attempt to talk about some judgments recently handed down by the Court or the thousands of prosecution cases related to the current anti-amendment movement on this occasion. What is the relationship between them?

LEGISLATIVE COUNCIL ― 7 November 2019 1393

As a matter of fact, the extension of the retirement age of Judges that we are now discussing will benefit or help most enormously not the criminal proceedings, but the workload of civil litigation instead, which is particularly relevant to the retention of talents in CFI and CFA. The 2 000 to 3 000 cases to be handled by the Magistrates' Courts mentioned by them are indeed totally irrelevant. No one has said that there is a shortage of Magistrates. No one has ever commented that an extension of retirement ages is necessary since there is a shortage of Magistrates. This is not the case. There are sufficient Magistrates and many of them are eager to work up to the retirement age. Accordingly, there is no manpower shortage in the Magistrates' Courts. A vast majority of the 2 000 to 3 000 cases will be heard in the Magistrates' Courts, so they are entirely irrelevant to the current debate on the extension of retirement ages. We should not confuse the two issues.

President, I support the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019, and also hope that the Court and the Judiciary will heed the views advanced by the legal profession all along on the conditions of appointment of Judicial Officers.

President, I so submit.

PRESIDENT (in Cantonese): Does any other Member wish to speak?

(No Member indicated a wish to speak)

PRESIDENT (in Cantonese): If not, I now call upon the Chief Secretary for Administration to reply. Then, the debate will come to a close.

CHIEF SECRETARY FOR ADMINISTRATION (in Cantonese): First of all, President, I wish to express my heartfelt thanks to Dr Priscilla LEUNG, Chairman of the Bills Committee on Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bills Committee") and other members, the Legislative Council Secretariat and the legal adviser team for their efforts made in the scrutiny of the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 ("the Bill"), which enabled the smooth completion of the scrutiny of the Bill. I also owe all stakeholders, the relevant deputations and individuals my gratitude for their expression of views on the Bill to the Bills Committee.

1394 LEGISLATIVE COUNCIL ― 7 November 2019

As I stated in moving the Second Reading of the Bill in the Legislative Council this March, there have been persistent recruitment difficulties at the Court of First Instance ("CFI") of the High Court level. The Chief Justice of the Court of Final Appeal ("CFA") firmly believes that an extension of the statutory retirement ages for Judges and Judicial Officers will facilitate recruitment of the best legal talents to the Judiciary while retaining serving Judges and Judicial Officers for as long as practicable, so that they may continue to serve the community with their experience and talent.

The main object of the Bill is to amend the High Court Ordinance, the District Court Ordinance, the Pensions Benefits (Judicial Officers) Ordinance and the Hong Kong Court of Final Appeal Ordinance, thereby enabling the Judiciary to extend the statutory retirement ages for Judges and Judicial Officers and implement related arrangements. The several key proposals are as follows:

(a) extending the statutory retirement ages for Judges of CFA as well as the Court of Appeal ("CA") and CFI of the High Court from 65 to 70;

(b) extending the statutory retirement ages for Members of the Lands Tribunal, Magistrates and other Judicial Officers at the magistrate level from 60 to 65;

(c) raising the statutory early retirement ages for the relevant Judges and Judicial Officers correspondingly, and introducing a statutory or discretionary early retirement age for Judges and Judicial Officers at certain levels of court;

(d) granting District Judges, like Judges at other levels of court, an extension of term of office on a discretionary basis when they attain the statutory retirement age; and

(e) putting in place a mechanism which allows serving Judges and Judicial Officers to choose whether or not to transfer to the new retirement arrangements.

The Bills Committee has held three meetings at which detailed and in-depth discussions were conducted on the provisions of the Bill, with general support for the amendments. Yesterday and today, Dr Priscilla LEUNG, LEGISLATIVE COUNCIL ― 7 November 2019 1395

Chairman of the Bills Committee, also explained in detail other issues of concern raised in the course of the scrutiny of the Bill, and the Government and the Judiciary also responded to them accordingly.

I am aware that the manpower issue of the Judiciary is of particular concern to Members. Allow me to give a brief response here. The Government and the Judiciary have adopted a number of measures to encourage more suitable talents to serve as Judges and Judicial Officers. These include a Benchmark Study on the Earnings of Legal Practitioners in Hong Kong conducted on a regular basis to review judicial pay. In light of the Benchmark Study conducted in 2015, the pay for Judges at the CFI level and above was adjusted upward by 6%. Meanwhile, the pay for Judges and Judicial Officers below the CFI level was also adjusted upward by 4%. In 2017, on the recommendation of the Judiciary, the Government implemented enhancements to the conditions of service for Judges and Judicial Officers, including housing benefits, medical and dental benefits, local education allowance, judicial dress allowance and transport service for leave travel.

Moreover, the Judiciary launches open recruitment exercises for various levels of court on a need basis from time to time. Insofar as CFI Judges and District Judges are concerned, recruitment exercises were launched respectively in June and October 2018. As of mid-October 2019, a total of five CFI Judges and five District Judges were appointed. In addition, a recruitment exercise for Permanent Magistrates has been launched this March, which is still underway. We believe the passage of the Bill can further alleviate the pressure on the Judiciary's manpower.

Furthermore, some Members have suggested exploring the feasibility of relaxing or lifting the prohibition on Judges' return to private practice after leaving the Bench. In order to maintain judicial independence and command public trust in the Judiciary, Judges at the District Court level and above all along have security of tenure. For this reason, they are prohibited from returning to private practice after leaving the Judiciary. Allowing these Judges to return to their practice after leaving the Bench may call into question their impartiality in adjudicating cases, and the prohibition on return to private practice will help dispel such misgivings. Both the Government and the Judiciary do not consider it appropriate to relax the prohibition given that the proven practice seeks to underpin judicial independence and public trust in the Judiciary.

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President, I wish to take this opportunity to clarify a few issues. First, some Members have queried whether the processing time at criminal courts is excessively long, and some have also suggested that the Judiciary should consider setting up special courts operating on a round-the-clock basis to speed up the processing of cases related to recent incidents. As publicly explained by the Judiciary earlier, the actual time required for a criminal trial to take place from its first appearance depends mainly on whether the prosecution and the defence are ready for trial or need more time for preparations, such as conducting further investigations, gathering evidence or taking legal advice. The case may be adjourned for a mention hearing until it is ready for a plea to be taken, and until the prosecution and the defence inform the Court that they are ready to proceed to court trial. A number of factors such as the complexity of the case, the number of defendants involved, the anticipated length of the trial, the availability of representing counsel and the Court's own availability will affect the time taken for processing of the case. Hence, the actual time required for a trial to take place from its mention hearing varies from case to case. We are aware that in response to the upsurge in the number of cases arising from recent incidents, the Chief Justice of CFA has stated that the Judiciary will strive to deal with the cases expeditiously and efficiently as far as practicable while at the same time ensuring that they are handled fairly in strict accordance with the law. In fact, in response to a number of recent cases where a large number of defendants were brought before the Magistrates' Courts, the Courts have been exercising flexibility to conduct court hearings beyond the normal court hours into late evenings on a need basis.

When the case cannot be disposed of at the first appearance and is adjourned for further hearings, the Magistrate will deal with a defendant's application for bail strictly in accordance with the Criminal Procedure Ordinance. As stipulated by the law, the Magistrate may refuse bail only when it appears to the Magistrate that there are substantial grounds for believing that the defendant will fail to surrender to custody, commit an offence while on bail, interfere with a witness or pervert or obstruct the course of justice. In deciding bail, the Magistrate will consider the position and arguments of and materials placed before the Court by the prosecution and the defence. If dissatisfied with the Magistrate's decision on bail, either party can apply to CFI for review or variation. CFI will likewise consider and decide on such an application in accordance with the legal requirements of the Criminal Procedure Ordinance.

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I wish to briefly respond to the several concrete recommendations and points of view and concerns put forth by Members in the debate one by one. First of all, I wish to point out that insofar as the retirement age is concerned, some Members have queried whether the health condition of Judges should be one of the factors of consideration for an extension of term of office. I wish to point out that in fact, the Judiciary has clearly stated that before an extension of term of office is granted, Judges and Judicial Officers will be required to pass a medical examination to ascertain that they are medically fit for continued employment after reaching the statutory retirement age. If the health condition of a Judge and Judicial Officer deteriorates substantively to a state that may affect his performance of judicial duties, regardless of whether he has reached the statutory retirement age, the Judiciary may handle the case by convening a medical board. If the Judge and Judicial Officer is confirmed to be unfit for performing judicial duties, he may retire on medical grounds without waiting for the attainment of the statutory retirement age or the end of his term of office.

Second, I wish to clarify the issues regarding the judicial integrity of Judges raised by Members who also expressed concern about individual Judges commenting on some political issues. As Members may recall, the Chief Justice of CFA has also made it clear earlier that for the sake of judicial independence and fairness, Judges should in general refrain from commenting on politics and other controversial issues, and particularly refrain from expressing personal opinions on legal issues that are likely to come before the Courts.

Third, I wish to briefly respond to some Members' views on the heavy workload arising from non-refoulement claim cases. Indeed, Hong Kong has seen an influx of persons who have made non‑refoulement claims, commonly known as torture claims, in recent years. The substantial caseload arising from such cases has exerted much pressure on CFI and CA of the High Court and CFA. The Government is fully aware of the situation. Apart from closely liaising and fully cooperating with the Judiciary in respect of resource requirements, the relevant departments have also spared no effort in supporting the Judiciary in amending certain procedures of the High Court, so as to ensure that all cases, including those relating to non‑refoulement claims, will be processed as expeditiously and efficiently as reasonably practicable. On 24 June this year, the Judiciary also consulted the Panel on Administration of Justice and Legal Services of the Legislative Council as well as the trade and the stakeholders concerned on the relevant proposals. According to the timetable of the 1398 LEGISLATIVE COUNCIL ― 7 November 2019

Government, the relevant amendments are expected to be presented to the Legislative Council for consideration early next year, i.e. 2020, with a view to taking them forward as soon as practicable.

Lastly, I wish to clarify, or respond to, Members' concern over the workload of Judges. Just now, a number of Members have expressed worries about that, and queried whether consideration can be given to some special arrangements, such as reducing the overall workload or administrative work of Judges and Judicial Officers reaching the statutory retirement age in order to incentivize them to extend their term of office. The Judiciary has also advised that in general, Judges and Judicial Officers mainly perform judicial duties and only a small number of them, such as Court Leaders, are responsible for administrative duties. In considering whether to invite individual Judges and Judicial Officers to take up administrative duties, the relevant Court Leaders will take into account all relevant factors, including their workload, expertise and experience. If Judges and Judicial Officers reaching the statutory retirement age are looking to take on a lighter workload out of personal preference or circumstances, they may consider serving as deputy instead of full-time Judges and Judicial Officers after retirement.

President, in respect of the social unrest and incidents that have seriously undermined the rule of law over the past few months, I wish to reiterate that the rule of law and judicial independence are the core values of Hong Kong. The SAR Government will continue to steadfastly safeguard judicial independence. In upholding the rule of law in the administration of justice, the Hong Kong courts exercise judicial powers independently and strictly in accordance with the law. In adjudicating cases, the Courts always ensure that they are dealt with and disposed of fairly and justly, and that all the legitimate rights of all the parties before the Courts are fully protected in accordance with the law. Sticking to the principle of judicial independence, Judges have all along been adjudicating cases in accordance with the law. In discharging judicial duties, Judges will consider the legal issues of a case on its own merits in accordance with the law and adjudicate on disputes impartially without fear or favour. Judges will make judicial decisions on such a premise with full justifications for them. As we all know, the legal system in Hong Kong is transparent. Most of the court proceedings are open to the public. Written judgments which set out the reasoning of the Courts in arriving at the decisions will usually be uploaded onto the Judiciary's website for public inspection.

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President, the rule of law is the cornerstone of Hong Kong's success. We must uphold and respect the rule of law. For this reason, the Government has all along been providing sufficient resources and necessary support to the Judiciary to ensure its effective operation. The current legislative amendment proposal seeking to implement the extension of retirement ages for Judges and Judicial Officers can not only help attract talents to join the Bench but also retain experienced Judges and Judicial Officers, thereby alleviating the pressure on the Judiciary's manpower.

I move the Second Reading of the Bill, hoping that Members can support and pass the Bill to enable the Judiciary to implement the proposals for extending the statutory retirement ages of Judges and Judicial Officers and related arrangements.

I so submit. Thank you, President.

PRESIDENT (in Cantonese): I now put the question to you and that is: That the Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019 be read the Second time. Will those in favour please raise their hands?

(Members raised their hands)

PRESIDENT (in Cantonese): Those against please raise their hands.

(No hands raised)

PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.

CLERK (in Cantonese): Judicial Officers (Extension of Retirement Age) (Amendment) Bill 2019.

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NEXT MEETING

PRESIDENT (in Cantonese): I now adjourn the Council until 11:00 am on Wednesday, 13 November 2019.

Adjourned accordingly at 7:22 pm.