CSj interviews the winner of the 2015 HKICS Prize – Anthony Rogers GSB QC JP FCIS FCS, former Vice-President of the Court of Appeal of Hong Kong and Chairman of the Standing Committee on Company Law Reform.
Congratulations on receiving the HKICS prize – can we start by discussing your background?
‘I was born in the UK. My father was English and my mother Romanian. I studied law and went on to do the bar exams at Gray’s Inn, London. I was a bit of a young man in a hurry and decided to do two years’ work in one year. That was possible because they held “resit” exams in September every year for those who didn’t pass the bar exams in May. I sat for the May exams and then did my next years’ exams in September.
This meant that I had an extra year or more. Instead of travelling around the world, which in those days had not yet become fashionable, I worked for a patent agent for a year because I wanted to do patent work. After that I was lucky to have an excellent common law pupillage [a one-year period of practical training for trainee barristers], then I did a year of patent pupillage and went into patent chambers in 1969.
I had met my wife while I was still studying at Gray’s Inn. She’s from Hong Kong but she was working as a paediatric nurse at Great Ormond Street Children’s Hospital at that time. We got married and lived in England for six years, then I decided to come to Hong Kong. My wife had a large family in Hong Kong (including eight aunts and four sisters) and all their families. Her uncle was a barrister who had always been encouraging me to come out to Hong Kong.
We arrived in 1976 and after a year or so of a mixed practice, I did mostly IP work, though I also did some company work. Then I took silk [became a Queen’s Counsel] in 1984. I was appointed a member of the Basic Law Consultative Committee as one of the bar representatives when it was set up in 1985, and I served on that Committee until it finished its work in 1991. I became Chairman of the Bar Association in 1991 and in 1993 I decided to become a judge. With the handover looming, I wanted to keep our system of law going and I thought that was the best way I could do it.
The first thing that happened was that I was asked to be the companies judge. Soon thereafter, in 1994, I became the Chairman of the Standing Committee on Company Law Reform. Gordon Jones had become the Registrar of Companies in 1993 and he was keen to have a complete review of the Companies Ordinance. It was through my work with the Standing Committee and the Companies Ordinance review that I became involved with the work of the Hong Kong Institute of Chartered Secretaries. There has always been at least one Chartered Secretary on the Standing Committee.’
Is that by design?
‘It would have been very strange not to have had Chartered Secretaries on the Committee. The idea is to have a broad range of people from different sectors and different professions on the Standing Committee – if we hadn’t had their expertise to draw on we would have been missing something.’
Do you think that having the right corporate governance infrastructure in place – such as having effective regulatory and legislative bodies; an independent and commercially literate judiciary; a pool of qualified professional practitioners; and a free and active media – is a key element in keeping companies honest?
‘Yes. All those elements are very important. I think we need to bear in mind that good corporate governance is not just about rules and regulations – it is about having a well-run company. Since I’ve never had to run a company I’m only speaking as an outsider, but often all the recommendations for raising governance standards tend to end up with new regulations. The emphasis seems to be on how to force people to do things but that’s not my idea of what good corporate governance is about.
But the elements you mention are essential for Hong Kong. If Hong Kong didn’t have a sound judiciary then we’d be totally lost. People often ask me how I see the rule of law in Hong Kong and, of course, you can only see so far into the future, but as far as I can see Hong Kong’s rule of law is sound. I think the judiciary is well equipped and independent. Of course, we are all human and our system of law is subject to human error, but even where mistakes are made I think they are made for the right reasons.
It is a bit sad, though, that the judiciary has so many vacancies at the moment. The South China Morning Post recently reported that there are nine vacancies in the High Court which have had to be filled with temporary appointments. Many of my retired colleagues sit as a judge for two or three months a year and that helps to fill the gap.
You also mentioned the role of the press and I think the free press is also very important. You have to have an insightful press and a challenging press. You need to have journalists who feel they can publish something without looking over their shoulders.’
Do you think ethics also plays a key, and perhaps underestimated, role in corporate governance?
‘Undoubtedly. I think all rules should be based on the need for common honesty. As far as I’m concerned, good ethics starts in the cradle – it starts with the way kids are brought up and that follows through to how they live both their personal and their business lives.
Take one example – corporate accounts. There are many different ways of presenting them, but at the end of the day the question must always be asked – do the reports give a true and fair view of the company’s financial health? Companies like Enron can find ways to skirt around the rules, but how would the directors answer the question – “does this report give a true and fair view of the state of the company?”
I was a panellist at the HKICS corporate governance conference in 2014 and I put forward a question to the conference via the electronic voting poll which was designed to bring out the point that corporate governance rules were, or should be, based on common honesty. The vast majority of the conference attendees agreed with this suggestion.
So, as I said, honesty is the common denominator of good corporate governance and whatever decision you’ve taken you always have to sit back and ask is this right? Even as a judge, whatever the complexities of the case and whatever you think might be the right statutory interpretation, at the end of the day you have to ask yourself whether the decision you’ve come to is right. If you are not sure about that, you should go back check where you may have gone wrong.’
Do you support the move towards principles-based corporate governance regulation in Hong Kong?
‘Absolutely. The crooks are always going to get around the rules and the good guys are going to spend billions on ensuring they jump through all the hoops. Money laundering is a good example of that – banks these days are inundated with rules and regulations about money laundering. Another example would be the proposal for quarterly reporting in Hong Kong. This is a good idea to a certain extent, but not all businesses in Hong Kong will be given to reporting on a quarterly basis. The business cycle of a toy manufacturer, for example, is annual. It starts in January with the toy fair and ends in December with Christmas when most toys are sold. Much more important surely would be regulations requiring the announcement of material changes rather than a quarterly reporting cycle.’
You are the company secretary of a number of sports associations – what role do you think company secretaries should be playing in corporate governance?
‘I think the company secretary is very important. Things are getting much more complex than they ever were and there has to be someone who housekeeps the company.’
The role of the company secretary has been evolving towards a trusted advisory role to the board – do you think the role will move away from administrative functions such as minute drafting?
‘But those two aspects of the role are part and parcel of the same thing. That’s what I meant by “housekeeping” – company secretaries are key to ensuring that the company is well run and to do that they have to be knowledgeable about so many different aspects of corporate governance. They need to keep up to date in their knowledge of relevant legislation, such as the new Competition Ordinance and the new Companies Ordinance – that one is a minefield, I have to use word searches to find my way around it!
Drafting minutes is, of course, where company secretaries first started. I recently did a seminar on drafting minutes for the HKICS and the more I looked into what lay behind drafting minutes, the more I realised how crucial good minute drafting is, and how that, in itself, leads directly into properly run meetings and good corporate governance.
As the company secretary of several sports associations, I am not involved in the commercial side of things but, like any company secretary, I have to advise on what the law says. The company secretary is an important part of the conscience of the company. The directors will come up with many ideas, but the company secretary is the one who has to advise them where those ideas may take the company down the wrong route.’
We digressed from your career path – can we bring that up to date and discuss your current work? I think we had got as far as your work with the Standing Committee and the review of the Companies Ordinance.
‘I retired from the Standing Committee in 2005 and from the Court of Appeal in 2011. As regards the Standing Committee, when we had finished the consultation process and mapped out what we were going to do, we were ready to enter the drafting stage. I knew I would be retiring before that process would be finished so I thought that was the time to go and let someone else take over.
Now I’m involved in mediation. I always thought that Hong Kong people knew how to settle cases if they wanted to. All the time I was in practice at the bar we settled cases left, right and centre, but there is a different mindset now and I have found that mediation is a useful process and does work. Some people would only settle cases at the court door and mediation works in a similar way – it gets people into the right frame of mind where they have to think of a solution.
I also do some arbitration. I have been asked to give evidence on Hong Kong company law in a couple of cases, one of them is still going on. I’m the Chairman of the Disciplinary Committee of the Hong Kong Anti-Doping Committee. As I mentioned, I also look after a few sports associations – in particular the Hong Kong China Rowing Association. Rowing has been a lifelong interest and an important recreation for me. I still row.’
Anthony Rogers was interviewed by Kieran Colvert,
SIDEBAR: CAREER NOTES
Anthony Rogers was called to the English Bar in 1969 and appointed Queen’s Counsel in 1984. He joined Hong Kong’s judiciary in 1993 and became Vice-President of the Court of Appeal in 2000. Before his retirement in 2011, Anthony held a number of high-profile appointments in Hong Kong, including as Chairman of the Standing Committee on Company Law and as a member of the Basic Law Consultative Committee. He is the Company Secretary of the Hong Kong China Rowing Association and a number of other sports associations, and the Chairman of the Disciplinary Committee of the Hong Kong Anti-Doping Committee. He is also a CEDR Accredited Mediator and Member of Chartered Institute of Arbitrators.