In this essay, I will argue that whether exclusion of overseas judges on the CFA from hearing

cases brought under NSL has implications for judicial independence depends on the nature of
the cases. Where the cases relate to offenses that do not violate the sovereign of China, an
exclusion of overseas judges may erode judicial independence in HK; however, where the
cases relate to offenses that violate sovereign of China, then exclusion of overseas judges may
not have affect judicial independence of Hong Kong.

Article 82 of the Basic Law states that the CFA may draw upon overs judges in any cases.
Since 1 July 1997, it has also been convention that bench of any case under the CFA would
include an overseas judge.

Judicial Independence is a bedrock component of both the separation of power and the rule of
law in HK. This concept includes two perspectives: independence of courts from other parts
of HK government, which is supported by Article 85 of the Basic Law, as well as
independence of HK courts from mainland, which is supported by Article 19 of the Basic
Law. Any implication on judicial independence in HK can be that of either of the above two
perspectives.

I. Cases relate to offenses that violate the sovereign of China

These cases will involve offenses of subversion, secession, collusion with foreign country
etc., as these offenses are provided in NSL. Exclusion of overseas judges in such cases may
not have implications in judicial independence in HK for the following reasons:

Firstly, hearing and judgement on these cases may usually demand an understanding of what
constitute a violation of sovereignty of China, while the understanding of what constitute a
violation of sovereignty of a particular country may varies depending on its history, culture,
legal systems and politics. Overseas judges cannot therefore effectively contribute to such the
hearing of such cases by utilizing their legal knowledge and experience in their home country.

Secondly, expanding from my first argument, involving overseas judges in the hearing of
such cases may in turn hurt the judicial independence of Hong Kong. MacFarlane’s stated that
“an important symbol of independence is lost when foreign judges make judicial
determinations on important social, culture, or political matters.” Since overseas judges may
not be necessarily familiar with the historical background of national security issues arising in
Hong Kong and the tensions between Hong Kong and mainland, they may not be well
equipped to judge such cases.

People may argue against me on this point by claiming that exclusion of overseas judges to
the hearing of such cases may erode judicial independence since the factor of “institutional
independence” within the “Valente factors” is deteriorated. According to the “Valente
factors”, “institutional independence” includes judicial control over assignment of judges and
sittings of courts. The counter argument may argue that by excluding overseas judges from
the hearing of such cases, judges are no longer assigned to cases as usual. If overseas judges
are previously assigned to hearings of NSL cases but later excluded, then this argument may
be sensible. However, it is worth noted that, no overseas judges join the first NSL case being
heard and judged in the CFA (the HKSAR v Lai Chee Ying case) and the most recent NSL
case (the HKSAR v Lui Sai Yu case). If such trend continues, and becomes a constitutional
convention, then since overseas judges have never been a part of the NSL cases, an exclusion
of overseas judges to the hearing of such NSL cases will not change anything, including the
judicial independence of HK.

II. Cases relating to offenses that do not violate the sovereign of China
These cases may involve offenses of terrorist activities as provided in Article 24 -28 of NSL.
Exclusion of overseas judges in such cases may erode judicial independence in HK since
overseas judges could contribute to the judgment of such cases by contributing their
experience on similar matters in their own jurisdiction, and could indicate avoidance of
influence from the mainland on such cases.

As Tang & Ching stated “Inclusion of overseas judges in Basic Law was due to “widespread
fear… that local judges could be subject to pressure from China after 1997”. Since such cases
are legal and criminal in nature, the hearing and judgment of such cases should be unduly
affected by the culture, political and legal system of mainland China. Thus overseas judges,
being present in such cases, can encourage the confidence of the public on the determination
of such cases. Furthermore, it is highly probable that many of the common law jurisdictions
have similar offenses provided either in statutory or common law. Hence, overseas judges can
bring their experience in their own jurisdiction into such cases and enforce justice.

In conclusion, whether exclusion of overseas judges on the CFA from hearing cases brought
under NSL has implications for judicial independence depends on the nature of the cases. In
practice, it might be sometimes difficult to draw a clear line between the two kinds of cases. It
is also likely that the two cases are incorporated within each other. But I believe that my
argument can embark on interesting theoretical discussions on the matter.