This chapter discusses three common criticisms of using foreign judges on domestic courts. First, that the foreign judge, ignorant of local laws, customs and circumstances, will reach decisions that are legally wrong, assertive of colonial values and principles, or simply unacceptable to members of the local community. Second, the foreign judge, not being a citizen or resident of the local jurisdiction, has divided patriotic ties rendering him or her ill-suited to consider questions of constitutional significance, national security or foreign affairs. Third, the expertise of the foreign judge is no longer needed as there is already abundant domestic legal expertise. The chapter responds and reflects upon these criticisms in the context of the evolving system of overseas non-permanent judges of Hong Kong’s Court of Final Appeal since 1997.

The Joint Declaration may have been concluded in 1984 but it was not until 1991 that agreement, or at least a first agreement, was reached between China and the UK on the composition of an altogether new entity, the Court of Final Appeal or ‘CFA’ for post–handover Hong Kong. It was to replace appeals to the Judicial Committee of the Privy Council from colonial Hong Kong. In that respect the new Hong Kong Special Administrative Region will begin where other former British colonies had evolved; the eventual abolition of appeals to the Privy Council when sufficient confidence in the local judiciary had been, or was felt to have been, achieved, or perhaps when national honour in some former colonies had demanded it. Barbados and Guyana have now joined Canada, New Zealand, Malaysia and Singapore, effectively Australia, and also India, Pakistan and Sri Lanka just to name a few prominent examples of jurisdictions which have abolished appeals to the Judicial Committee.

This chapter outlines the system and structure of the courts in Hong Kong and discusses the concept of judicial precedent. It leads readers through the hierarchical structure of the courts and its historical development during the pre- and post-1997 periods. The different levels of the courts are examined including the Court of Final Appeal (CFA), the High Court, the District Court and Magistrates’ Courts. Different tribunals that exercise judicial power are also reviewed. The second section of this chapter deals with judicial precedents, an essential feature of the common law. The doctrine of precedent as it applies in Hong Kong is detailed, taking readers through vertical and horizontal stare decisis for each level of the courts. The status of English and overseas decisions, including Privy Council decisions in present-day Hong Kong, is discussed.