TNAG-0193-FCO40-229-Representations-from-Hong-Kong-Bar-Association-particularly--1970 — Page 100

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RC.204/81/021

HKK 14/14

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Mr. Carter

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There is an existing vacancy for a Puisne Judge in Hong

Kong in succession to the late Mr. Justice Creedon. This

vacancy must be filled fairly quickly for it occurred as long

ago as April 1968 and the Government of Hong Kong, as I am

afraid they are inclined to do, have taken a very long time to

put forward a name see despatch dated 13 December at (1) on RC 204/81/021. I shall therefore at this stage comment only on that part of Sir Michael Gass's letter at (1) which relates to

appointments to the Supreme Court Bench from the practising Bar.

agree with his rejection of Mr. de Basto's argument that such

appointments are desirable in order to dispel doubt about the

impartiality of the Supreme Court Bench. I think he is right,

too, in suggesting that Mr. de Basto's request was really

motivated by the desire of the Hong Kong Bar Association to see

some of its members appointed to high judicial office. That is a

perfectly understandable and honourable desire which does not

need the support of far-fetched arguments such as that referred

to above. Indeed where a Supreme Court Bench is entirely or

predominantly composed of Service judges it could be in the

public interest to make an occasional appointment direct from

the local Bar, since such an appointee could have a genuine contribution to make to the administration of justice by virtue

of his having had much greater experience of private practice

than the average Service judge. Equally, of course, where one

is dependent upon a Service to maintain the structure of the

judiciary, it is in the public interest that an appointment to

the Bench direct from the Bar should not be made in circumstances

in which it would constitute an injustice to the Service and hence a legitimate cause of grievance see paragraph 1 of Colonial Office savingram No. 1564 of 17 August 1965 at (12) on FED 370/400/01. The weighing of these two opposing aspects of the public interest must be a matter of judgment on each occasion

in the light of the circumstances at the time; but I think one

can safely say that in a situation such as one has in Hong Kong

one could not contemplate more than a very occasional appointment from the local Bar. X

2. The immediate question for consideration is whether, having regard to the fact that in his discussion with Mr. de Basto

the Minister of State did not rule out the possibility of such appointments (paragraph 5 of (8) on HWB 14/61), we should contemplate the possibility of making such an appointment to the present vacancy, as Mr. Mason suggested in his letter at (9) on

the same file. In my opinion we should not. In the first place,

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