(HKK 14/14)
CONFIDENTIAL
21/1115
จา
Despa (37
19/9.
19 September, 1969.
万
40
RCF.
His xcellency
We are glad that in your letter of 30 August to Carter you have felt able to accept the principle of an occasional appointment to the Bench from the Bar. We are, however, a little concerned that you should lay down as a prerequisite the satisfaction of all three criteria set out in #ichael Gass letter to John Koreton of 28 November, for that passage of the letter does not, with respect, seem to be based on an adequate analysis of the question at issue.
2. In the circumstances envisaged in Gass' condition (a) (1.c. where "officers of sufficient calibre were not available in the Judicial and Legal Service") there wo ld surely be no room for argument. If there were no one in the service, in Hong Kong or elsewhere, who was fit to be appointed (a most unlikely contingency in the foreseeable future) it would be the duty of the Crown to seek a suitable person from a source outside the service and the local Bar would be an obvious and legitimate scurce. What we are concerned with is whether, and if so in what circumstances, it would be justifiable to make an appointment to the Supreme Court Bench from the local Bar even though there was a service candidate fit for the appointment. This depends, in broad terms, upon the public interest. It might, we suggest, sometimes be in the public interest to strengthen the Supreme Court Bench by appointing a member of the local Bar with more extensive experience of private practice than is possessed by the average service judge. If such an appointment pleased the Bar that would be an additional bonus, but the desire to gratify the Bar would not in itself be a justification for the appointment. There is, however, another public interest aspect of the matter for where, as in Hong Kong, one is dependent upon a service to maintain the structure of the judiciary, the public interest requires that members of the service should be fairly treated in the matter of promotion prospects; and this means that appoint ments to the Supreme Court Bench from the local Bar could only be very occasional. Both these aspects of the public interest would have to be considered on any occasion when the possibility of an appointment from the Bar was contemplated and the decision would depend on what was judged to be right in the light of the circumstances at the time. We are not suggesting that the Supreme Court Bench at present requires to be strengthened by an appointment from the Bar, but we should like to know whether you agree that in principle a very occasional appointment from the Bar could be accepted on the basis that I have suggested above.
40 In the meantime we are asking the experts in the Ministry of Overseas Development to undertake a study of pension arrangements and will forward the res lts in due course.
Bir Davi Trench, CCMG, MC,
HONG KONG,
CONFIDENTIAL
(K.M. Wilford)
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