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10/10/2012 4:24:37 AM EST
Not Entirely Legal - Part 55
No shortage of judges; generous retirement terms; Judiciary
Posted by Malcolm Merry

No shortage of judges

For some time now Hong Kong’s press has been banging on about a shortage of judges, focusing upon the number of unfilled posts in the magistrates’ and the district courts. Journalists have declared a crisis in the judiciary. Lawyers do not want to become judges, has been the refrain, the pay is too low.

The refrain is both inaccurate and out-of-date. It is and was inaccurate because the vacancies have not been the consequence of poor pay. On the contrary, the SAR’s judges, at all levels, have long been very well rewarded. Also, although there have been vacancies, there have been plenty of judges. They have just not been permanent judges.


No shortage of money

By international standards the salary of a district judge, more than HK$200,000 a month, is handsome indeed. That is before you factor in the generous housing and other allowances. But these are not the main attraction, which is the full pension. Only after many years of practice could a lawyer save enough to purchase an annuity to compare with the generous retirement terms offered by the Judiciary.

In the High Court the money is even better than in the district court and the pension kicks in after only 12 years’ service. Furthermore, their lordships and their honours, unlike other public servants, need fear no pay cut, for reductions in their salary is regarded as an assault on judicial independence (yes, the reasoning escapes me too).

The housing allowance may not cover the mad rentals that luxury accommodation currently commands but most judicial appointees from private practice will have been in the housing market for years so will have already purchased a home and will have relatively modest mortgage repayments. The allowance is non-accountable, so appointees get it even if they don’t spend it all. A housing allowance of any amount provides insulation against the biggest element in the cost of living in Hong Kong.

On top of all that, if you consider the relatively low rate of tax, the take-home pay leaves judges elsewhere floundering in the wake of their SAR brethren.


The real problem

The argument, however, has been not that all this money is insufficiently generous by world standards but that it is not enough to attract successful local practitioners to the Bench because they earn so much as senior counsel or senior partners.

That argument has never been fully convincing. It overlooks the pension and assumes that the intangible benefits of leaving practice for the Bench (status; prestige; escape from pressure; intellectual challenge; sense of public service) are of no account. But anyway, the force of the arithmetic only ever applied to a few practitioners at the very highest level of earnings. Even some of them eventually succumbed to the lure of being a judge.

The real problem about filling the positions was not that the judicial package was unenticing but that there was a shortage of suitable candidates. They had to be both experienced in law and fluent in written and spoken Chinese as well as in English. The profession began to localize modestly in the 1970s when HKU produced its first batch of law students but there were fewer than 50 a year for the first decade and not all of them went into litigation. In an expanding economy and population, that was not enough to satisfy demand. Although ten years’ practice is the minimum qualification for a district judge, 15 or more years are desirable. By 1997 there were not many who could tick all the boxes.


Unpromotable

That is why the judiciary remained disproportionately expatriate at the turn of the century. The courts were kept going by acting appointees: judges on loan from lower courts, practitioners doing a few weeks on the bench, retired judges lured back to help out. In the Court of First Instance of the High Court there was a long period during which litigants had no better than a 50-50 chance of having their cases heard by a “proper”, i.e. permanent, judge.

A small cadre of expatriate district judges seemed to be on more or less permanent loan to the High Court. They were competent and conscientious. They kept civil justice functioning but they knew they had no chance of being asked to become High Court justices. They called themselves The Unpromotables. One of them used to hum "Unforgettable”, the Nat King Cole standard from the 1950s. However, the words of his version began: “Unpromotable … that’s what we are; Unpromotable though near or far”.

We kept seeing on the court lists the reappearance of familiar names, names that we thought, in some instances hoped, had departed the SAR for good to enjoy those generous early pensions. They had returned to assist in tackling the backlog of cases, and in the process to enjoy a bit of top-up no doubt.


End of an era

But now the era of the acting appointment is coming to an end. During August the Judiciary announced no fewer than 23 new judges in the district court and the magistracy. Most of them came from practice. Shortly more will be announced, together with several appointments to the High Court bench. They will include names which might have been thought to be in the too-rich-to-be-tempted category.

Nearly all the new names are or will be Chinese speakers. This feels like a watershed: the full localization of the Hong Kong judiciary. At last.



Malcolm Merry is Associate Professor of Law at the University of Hong Kong and a Hong Kong barrister. He is the author of Hong Kong Tenancy Law (5th ed, LexisNexis 2010) and co-author (with Paul Kent) ofBuilding Management in Hong Kong (2nd ed, LexisNexis 2008).


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