Little Hong Kong: Eradicate ‘foreign judges’ from Hong Kong? (Part 15)

Since Judge David Dufton handed down his sentence for the 7 police officers convicted of assaulting a protester during the Occupy protests, he has been subject to attacks including being called a “British dog.”  Professor Tian Feilong of Beihang University in Beijing further said that non-ethnic Chinese judges are unable to balance protecting rights and preserving public order in Hong Kong.  “Foreign judges cannot in particular understand the ‘one country’ connotation and the legal interest issues in Hong Kong Basic Law.

Is Judge Dufton a “foreigner”?

In his interview, Prof Tian appears to have defined “foreigner” as being non-ethnic Chinese.  Case in point.  The biography of Judge Dufton from the judiciary website says that “Mr Dufton was born in the United Kingdom in 1957… He was admitted as a solicitor in the United Kingdom and in Hong Kong in 1982, and was called to the Bar in Hong Kong in 1994.”  Judge Dufton’s biography doesn’t mention his ethnicity but shows that he was born in Britain and has been in Hong Kong since 1982, which was before I was born.

Is Judge Dufton a Chinese national?

Under PRC laws, Chinese nationality is a “right of blood” (jus sanguinis).  Under PRC’s Nationality Law, children of Chinese nationals are considered Chinese unless they have acquired foreign nationality or given up Chinese nationality.  In this case, Judge Dufton, as a foreign born non-ethnic Chinese, would not be a Chinese national unless he rescinded his British citizenship and has formally applied to become naturalised as Chinese.  On the other hand, ethnic Chinese born in Hong Kong are presumed to be Chinese nationals.

Does Judge Dufton need to be Chinese?

There is no requirement that a judge in Hong Kong must be ethnic Chinese or a Chinese national.  Due to Hong Kong’s common law system, many lawyers are English-trained and the legal sector also attracts lawyers from other common law jurisdictions including England, Australia, New Zealand, and Canada.  It is therefore no surprise that many judges in Hong Kong are non-ethnic Chinese.  Now, whether non-ethnic Chinese could understand “one country,” i.e. China, is a totally different question.

Can non-ethnic Chinese understand China?  

To understand China and what it is to be “Chinese”, one might ask what it takes to understand China.  I have met many China experts who are not ethnic Chinese, whilst I have met many more ethnic Chinese who have little understanding of Chinese history or culture.  On the question of “Chineseness,” perhaps I should end this piece with a quote from a prominent China historian,

“In getting to know Ah Q, those Western readers for whom China is most alien will discover a valuable fact that remains obdurately hidden from the Yellow Peril theorists and from the apostles of Red China: this fact is that the Chinese too are human, or to put another way, we are all Chinese.”

– Pierre Ryckmans

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