“一国两制”下香港“外籍法官”的角色演变

The Evolution of Foreign Judges' Roles in Hong Kong under the Principle of “One Country,Two Systems”

自香港成为英国殖民地开始,"外籍法官"一直都是其司法体系的重要组成部分。本文旨在探讨过去的一百七十多年间"外籍法官"角色之演变,具体包括对香港法治的实质贡献以及象征意义。透过对殖民地时期和回归后"外籍法官"角色的详细分析,本文指出"外籍法官"对香港的作用与重要性,已从殖民地早期的实质贡献,逐渐演变为主要具有象征意义。如今,在实质贡献方面,虽然"外籍法官"仍有一定的重要性,但并非不可被"本地法官"所取代。就其象征意义而言,文章认为,在中国建设法治国家的过程中,在香港社会以至国际社会眼中,"外籍法官"的存在仍相当重要。当中国法治国家治理体系全面确立之后,"外籍法官"在香港的历史使命将正式结束。

Foreign judges have always played an important role in Hong Kong ever since it became a colony of the United Kingdom. This article aims at examining the evolution of the roles played by foreign judges in more than 170 years from the colonial period to its present status as a Special Administrative Region in China. The article will show that the importance of their practical roles versus symbolic roles has changed over the years from having more practical importance in the early days to having more sym- bolic importance nowadays. It argues that the symbolic roles of foreign judges have been important after Hong Kong^s change of sovereignty and will remain important so long as Hong Kong^s host state, Chi- na, has not developed into a fully-fledged rule of law state. While the practical roles of foreign judges are still important, they are not irreplaceable. The day China becomes a rule of law state will be the day on which it will no longer be necessary to have foreign judges in Hong Kong.