The Supreme Court non-permanent judges from the United Kingdom, Jonathan Sumption and Lawrence Collins, have resigned. Collins cited political reasons and became the first non-permanent overseas judge of the Court of Final Appeal to resign after the enactment of Article 23 of the Basic Law by the Hong Kong government. He is also the fourth and fifth overseas non-permanent judges to resign since the promulgation of the Hong Kong National Security Law by the Chinese Communist Party in 2020.
Before the implementation of the National Security Law in Hong Kong, there were originally 15 non-permanent overseas judges in the Supreme Court. However, with the resignation of these two judges, only 8 remain at present.
According to the Financial Times, the two judges resigned earlier this week. Collins stated, “Due to the political situation in Hong Kong, I have resigned from the Supreme Court, but I still have full confidence in the complete independence of the Supreme Court and its members.” Sumption, on the other hand, confirmed to the South China Morning Post in Hong Kong that he will release a resignation statement next week.
When reporting on the resignations of the judges, both the Financial Times and Reuters mentioned that 14 of the defendants in the recent pro-democracy primary election case were convicted of “conspiring to subvert state power.”
Sumption served as a judge in the UK Supreme Court from 2012 to 2018, and was appointed as a non-permanent overseas judge of the Court of Final Appeal in 2019 by then Chief Executive Carrie Lam. He was reappointed for a term until December 2025 by Chief Executive John Lee in October 2022.
Collins served as a Lord of Appeal in Ordinary in the UK Supreme Court from 2009 to 2011, and then as an additional judge in the UK Supreme Court. He became a non-permanent judge of the Court of Final Appeal in 2011. His most recent reappointment was in May 2023 for a 3-year term starting from June 30, 2023.
On March 30, 2022, after the Chief Justice of the UK Supreme Court, Robert Reed, and Deputy Chief Justice Patrick Hodge announced their resignations as non-permanent judges of the Hong Kong Court of Final Appeal, Collins, Sumption, and five other British non-permanent judges collectively declared that they would continue to serve. They emphasized the critical nature of the historical moment in Hong Kong and the need to support the court in upholding the rule of law and reviewing decisions of the executive branch.
Sumption penned an article in The Times of London in March 2021 asserting that the National Security Law in Hong Kong explicitly protects human rights and cautioning against jeopardizing judicial independence in Hong Kong. He believed that the pressure on British judges to resign as non-permanent judges of the Court of Final Appeal was a political boycott to change their stance on democratic issues and exert pressure on the Chinese government, stating that British judges should participate in the Court’s cases for justice.
Lam describes Sumption’s remarks as “quite objective,” stating that he rightly states that there has never been interference from the central or executive authorities in the work of the Court of Final Appeal, and further believes that Sumption’s statements indicate that the judicial system in Hong Kong is very stable.
In July of the same year, Lam quoted Sumption’s article from March, stating that he “indicated that the central and SAR governments have never interfered with the SAR’s judicial independence, and the National Security Law also contains provisions to protect human rights.”
On another note, The Independent reported recently that British judges working in Hong Kong are receiving £40,000 (approximately HK$399,638) in view of the Chinese crackdown on dissent in Hong Kong.
Although British judges cannot preside over national security cases, Sumption was involved in convicting individuals critical of Beijing in the past.
Sumption was involved in the appeal cases of the “Soup Bun case” in 2021 and the riot conviction of Lo Kin-man during the 2016 Mong Kok police-citizen clash. The two cases were combined to clarify the application of the common law principle of “joint enterprise” to unlawful assembly and riot offenses. In the “Soup Bun case,” the ultimate appeal was successful, ruling that individuals not present at the scene of the riot cannot be considered principal offenders, and joint enterprise does not apply to rioting and unlawful assembly offenses. However, the Court of Final Appeal believed that the jury had sufficient evidence and no reasonable doubts in convicting Lo Kin-man, hence dismissed his appeal against the conviction.
The Independent’s report cited the overseas Hong Kong group “Hong Kong Freedom Committee,” claiming that the judgment established a precedent that resulted in many non-violent protesters being imprisoned.
In response to the ruling, Sumption rarely mentioned that the Court of Final Appeal rejected the prosecution’s overly broad view of participation in rioting. The result was that the interpretation of the law was similar to that applicable in England.
Looking back, before the direct promulgation and implementation of the National Security Law in Hong Kong by the CCP on June 30, 2020, the non-permanent overseas judge from the UK Supreme Court, Anthony Peter Clarke, left office on June 29 without citing a reason.
Following the enactment of the National Security Law, the first to resign was James Spigelma from Australia. When he resigned in September 2020, he stated in an interview with the Australian Broadcasting Corporation (ABC) that his decision to resign was related to Beijing’s implementation of the National Security Law in Hong Kong. His resignation came two years earlier than the end of his term in July 2022.
Another non-permanent judge, Peter Millett from the UK, considered Spigelma’s resignation “unwise,” but later told the media in the same month that due to his ill health and inability to travel long distances, he would no longer preside over cases in Hong Kong. He acknowledged that it might lead to all overseas judges resigning, but hoped it would not happen.
In June 2021, Baroness Brenda Marjorie Hale from the UK announced her decision not to seek reappointment due to personal reasons which expired on July 29 of the same year. She expressed uncertainty about when she could travel to Hong Kong and raised concerns about the functioning of the National Security Law and how it was applied and believed other non-permanent judges would continue to monitor the situation under the National Security Law.
In an interview in November 2022, she warned that if UK judges continued to stay in Hong Kong, they would be asked to enforce unacceptable laws, and she believed they should resign from the Hong Kong Court of Final Appeal.
By March 2022, Robert Reed and Patrick Hodge from the UK had resigned. Reed stated that both he and the UK government agreed that UK Supreme Court judges could no longer serve as judges in the Hong Kong Court of Final Appeal because such actions could be seen as endorsing a regime that undermines political and speech freedoms, values deeply cherished by UK Supreme Court judges.
As for Hodge, on March 17, 2021, during a session in the UK Parliament, he stated that if the judicial independence in Hong Kong were compromised leading to violations of the rule of law or inability to serve with conscience, he would not continue his role as an overseas judge and would also not nominate other judges for appointments in Hong Kong. Hodge agreed with Reed’s viewpoint, acknowledging that there was a conflict between upholding the reputation of the UK courts and assisting the Hong Kong people in safeguarding judicial independence.
The then British Prime Minister Johnson mentioned in Parliament that Reed and Hodge believed they were constrained by the National Security Law and unable to continue their work as desired. He expressed gratitude and understanding for their decisions. Several Conservative Party lawmakers in power also expressed support, believing that UK judges should not assist in authorizing a legal system that detains people in Hong Kong without due process, considering that the actions of the two judges prevent autocratic states from finding excuses for their behavior.
In March of this year, it was confirmed that Anthony Gleeson from Australia had retired as a non-permanent overseas judge due to his advanced age and the reluctance to seek reappointment.
As early as September 2020, Benny Tai, a Professor of Public Law at the University of Hong Kong, pointed out to the media that overseas non-permanent judges were willing to come to Hong Kong to support its legal system. However, when the rule of law in Hong Kong becomes ambiguous and judicial independence cannot be maintained, naturally they would be reluctant to return to Hong Kong.