Nana Wu
The Hong Kong legal community is mourning the loss of Justice William Gummow, a distinguished Non-Permanent Judge of the Court of Final Appeal (CFA), who passed away at the age of 83. Justice Gummow, an Australian jurist of considerable renown, had been an integral part of the city’s apex court since his appointment in 2013. His tenure on the CFA was marked by a commitment to upholding the principles of common law and contributing to Hong Kong’s jurisprudence.
Born in 1942, Justice Gummow embarked on a legal career that spanned over five decades, leaving an indelible mark on the legal landscapes of both Australia and Hong Kong. After dedicating ten years to practice as a solicitor, he was called to the New South Wales Bar in 1976, a pivotal moment that set him on a path of judicial excellence. His significant contributions to Australian law were recognized with his appointment to the Federal Court of Australia in 1986, followed by a distinguished period on the High Court of Australia from 1995 to 2012. During his time on Australia’s highest court, he was further honored with the Companion of the Order of Australia in 1997, a testament to his profound impact on the nation’s legal system.
Justice Gummow’s association with Hong Kong’s judiciary began in 2013, when he was appointed as a Non-Permanent Judge. These appointments, a cornerstone of the CFA’s structure since its establishment in 1997, involve inviting esteemed legal minds from other common law jurisdictions to sit on the court. This practice has historically been viewed as a crucial element in reinforcing Hong Kong’s standing as a global financial and business hub, signaling international confidence in its robust legal framework and independent judiciary. Justice Gummow’s commitment to this role was unwavering, with his last appearance on the bench in May. He had previously affirmed his dedication to serving until July 2028, a commitment now tragically cut short.
A Career Dedicated to Jurisprudence
Justice Gummow’s legal acumen was widely acknowledged. The Judiciary of Hong Kong, in a statement released on Thursday, conveyed its profound sadness at his passing, noting that he had "authored important judgments that have greatly enriched our jurisprudence." This sentiment was echoed by the Hong Kong Bar Association (HKBA), which also expressed its condolences. The HKBA emphasized its strong support for and appreciation of the contributions made by Overseas Non-Permanent Judges (NPJs) to the administration of justice in Hong Kong, encompassing diverse legal fields such as commercial law, human rights, and criminal law.
The High Court of Australia, in announcing a ceremonial sitting to honor Justice Gummow, described him as a "deeply learned, rigorously analytical and highly collegiate member of the High Court who contributed greatly in that capacity and throughout his professional life to the content and trajectory of Australian law." This description underscores the depth of his legal scholarship and his collaborative approach to judicial decision-making, qualities that undoubtedly informed his work in Hong Kong.
The Role of Overseas Judges in Hong Kong’s Legal System
The presence of overseas judges on the CFA has been a defining characteristic of Hong Kong’s judicial system since the handover in 1997. The objective has been to ensure that the highest court in the Special Administrative Region (SAR) benefits from the diverse perspectives and extensive experience of leading common law jurists. This influx of international legal talent has been instrumental in maintaining confidence in Hong Kong’s legal integrity, particularly in complex commercial cases where global investors seek assurance of impartial and sophisticated adjudication. The involvement of judges from countries such as the United Kingdom, Australia, and Canada has provided a vital link to international legal standards and practices, reinforcing Hong Kong’s status as a premier centre for international finance and dispute resolution.
However, the landscape surrounding these appointments has evolved significantly in recent years. The introduction of the National Security Law (NSL) in June 2020 has cast a shadow over the city’s legal and political environment, leading to a series of resignations among foreign judges. This trend has prompted considerable international discussion and scrutiny regarding the future of Hong Kong’s judicial independence.
A Spate of Resignations and Growing Scrutiny
The departure of Justice Gummow occurs against a backdrop of increasing unease and a notable number of foreign judges stepping down from the CFA. In April of the previous year, Australian judge Robert French resigned, describing the role of overseas NPJs as "increasingly anachronistic and arguably cosmetic." This sentiment reflects a growing perception among some that the influence and practical impact of these appointments may be diminishing in the current political climate.
Justice French’s resignation was part of a broader pattern. Since the beginning of 2024, six foreign judges have departed Hong Kong’s highest court. Anthony Murray Gleeson, another Australian judge, did not seek to renew his term, citing old age. More abruptly, UK judges Lord Jonathan Sumption and Lord Lawrence Collins resigned in June 2024 before their terms had concluded. Prior to these recent departures, Canadian judge Beverley McLachlin and UK judge Nicholas Phillips also chose not to extend their appointments.
Lord Sumption, in a widely reported opinion piece for the Financial Times shortly after his resignation, offered a stark assessment of Hong Kong’s trajectory, suggesting the city was "slowly becoming a totalitarian state." He articulated that judges operate within an "almost impossible political environment created by China," implying that the conditions necessary for an unfettered judiciary are increasingly absent.
These departures follow earlier high-profile resignations in March 2022, when British judges Lord Robert Reed and Lord Patrick Hodge resigned from the CFA, explicitly citing concerns over the erosion of political freedoms in Hong Kong following the implementation of the NSL. The exodus of these prominent legal figures has inevitably raised questions about the continued viability and perceived independence of Hong Kong’s judicial system in the eyes of the international community.
Despite the growing number of resignations, Hong Kong’s Secretary for Justice has sought to downplay the significance of these departures, arguing that the primary consideration is not the sheer number of foreign judges but rather their "good international reputation." This perspective suggests an official emphasis on maintaining the symbolic international standing of the court, even as the practical realities of judicial service appear to be shifting.
In a move that highlighted the ongoing complexities, New Zealand judge William Young joined the CFA in June of the previous year, indicating that while some judges are departing, others remain committed to serving. However, the overall trend of resignations and the vocal criticisms from some departing judges underscore the challenges facing the CFA in retaining its international bench.
Looking Ahead: Implications for Hong Kong’s Legal Standing
The passing of Justice William Gummow is a loss to the legal world, particularly to Hong Kong’s Court of Final Appeal. His long and distinguished career, marked by significant contributions to both Australian and Hong Kong law, will be remembered. His death, however, also brings renewed focus to the evolving dynamics of the CFA and the broader implications for Hong Kong’s reputation as a global legal centre.
The practice of appointing Non-Permanent Judges from overseas was designed to imbue Hong Kong’s highest court with international credibility and expertise. While Justice Gummow himself was a respected figure who exemplified these qualities, the recent spate of resignations and the reasons cited by departing judges suggest a growing disconnect between the aspirations for an independent judiciary and the prevailing political realities.
The continued participation of international judges, even amidst these challenges, remains a crucial barometer of global confidence in Hong Kong’s legal system. The ability of the CFA to attract and retain distinguished jurists of Justice Gummow’s caliber will be a key factor in determining its future standing in the international legal arena. As the legal community reflects on Justice Gummow’s legacy, the broader implications of these judicial appointments and departures will undoubtedly continue to be a subject of intense observation and analysis. The integrity and perceived independence of Hong Kong’s judiciary are intrinsically linked to its ability to uphold the rule of law, a principle that Justice Gummow dedicated his professional life to serving.
Lina Irawan
Jia Lissa
