Court of Final Appeal (Hong Kong)


The Hong Kong Court of Final Appeal (HKCFA or CFA) is the final appellate court of Hong Kong. It was established on 1 July 1997, upon the establishment of the Hong Kong Special Administrative Region, replacing the Judicial Committee of the Privy Council as the highest judicial institution under Hong Kong law. As defined in Articles 19 and 85 of the Basic Law of Hong Kong, the Court of Final Appeal "exercises judicial power in the Region independently and free from any interference." The Hong Kong Court of Final Appeal Ordinance and the Hong Kong Court of Final Appeal Rules set out the detailed functions and procedures of the court.

Hong Kong Court of Final Appeal
香港終審法院
The logo features the Court of Final Appeal Building
Established1 July 1997; 24 years ago (1997-07-01)
Location8 Jackson Road, Central,
Hong Kong[1]
Coordinates22°16′51″N 114°09′37″E
Composition methodAppointment by the Chief Executive acting in accordance with the recommendation of the Judicial Officers Recommendation Commission with Legislative Council endorsement
Authorized byHong Kong Basic Law
Hong Kong Court of Final Appeal Ordinance
Judge term length70 for the Chief Justice and Permanent Judges, but this may be extended by two three-year terms, meaning retirement age can be extended to 76; no retirement age for non-permanent judges
Number of positionsOne Chief Justice, at least three permanent judges and at most 30 non-permanent judges
WebsiteHong Kong Court of Final Appeal
Chief Justice of the Court of Final Appeal
CurrentlyAndrew Cheung
Since11 January 2021
Court of Final Appeal
Traditional Chinese香港終審法院
Simplified Chinese香港终审法院

The court meets in the Court of Final Appeal Building located in Central, Hong Kong.

Role of the court


From the 1840s to 30 June 1997, Hong Kong was a British Dependent Territory, and the power of final adjudication on the laws of Hong Kong was vested in the Judicial Committee of the Privy Council in London. The power to exercise sovereignty over Hong Kong was transferred from the United Kingdom to the People's Republic of China on 1 July 1997. Based on the one country, two systems principle, Hong Kong retains a high degree of autonomy and maintains its own legal system. The Court of Final Appeal was established on 1 July 1997 in Central, Hong Kong. Since then, it has served as the court of last resort; the court has the power of final adjudication with respect to the law of Hong Kong as well as the power of final interpretation over local laws including the power to strike down local ordinances on the grounds of inconsistency with the Basic Law.[2][3]

Court structure


The Court of Final Appeal is made up of the Chief Justice, at least three Permanent Judges, and at most 30 Non-Permanent Judges who can come from Hong Kong or any overseas Common Law jurisdictions. Under the Basic Law, the constitutional document of Hong Kong, the special administrative region remains a common law jurisdiction. Judges from other common law jurisdictions can be recruited and serve in the judiciary as non-permanent judges according to Article 92 of the Basic Law; to date, Judges appointed have served in the judiciaries of England and Wales, Australia, New Zealand, and Canada. Aside from the Chief Justice, there is no nationality requirement for any of the permanent or non-permanent judges.

The Court of Final Appeal has no original jurisdiction; an appeal has to originate from the High Court (either from the Court of Appeal or the Court of First Instance).

Allowing an appeal

Whether an appeal is allowed or not is determined by a panel of three Hong Kong judges, usually the Chief Justice and two other permanent judges. Should the Chief Justice or a permanent judge not be available, the other permanent judge or a non-permanent judge from Hong Kong may be called in. Non-permanent judges from other jurisdictions do not sit on such panels.

There is also a Registrar attached to the Court of Final Appeal, to help with review of appeal applications and other administrative duties.

Hearing an appeal

All appeal cases are heard by a bench of five judges consisting of the Chief Justice, three permanent judges and a non-permanent judge from another common law jurisdiction. If the Chief Justice does not sit in an appeal, a permanent judge is designated to sit in the Chief Justice's place, and a non-permanent judge from Hong Kong will sit on the court as well. Similarly, if a permanent judge is unable to sit, a non-permanent Hong Kong judge will sit in place of that permanent judge. Technically, should a non-permanent judge from outside Hong Kong be unable to attend due to extraordinary circumstances (such as during the COVID-19 pandemic), two non-permanent Hong Kong judges may sit on the court or sit via video conferencing.

As the role of a non-permanent judge is not a full time role, a serving High Court judge may be appointed as a non-permanent judge concurrently, such as Vice-President Robert Tang and Vice-President Frank Stock, as they were then known. This is extended only to the most eminent and senior serving High Court justices.

Building


From its inception in July 1997 until September 2015, the court was located in the Former French Mission Building, in Central.[4] In September 2015, the court relocated to the former (until 2011) Legislative Council Building, which was originally the colonial Supreme Court (1912–1985).

List of buildings used

Gallery


Current court


The Cheung Court

The Cheung Court began on 11 January 2021 (198 days ago [update]), when Andrew Cheung took over as the 3rd Chief Justice. Currently, 21 justices serve on the Cheung Court, including the Chief Justice, 2 Permanent Judges, and 16 non-permanent judges (12 of which are from other common law jurisdictions). One position for a permanent judge is pending Legislative Council endorsement.

  • The Hon. Chief Justice Andrew Cheung (since January 2021; first appointed Permanent Judge in October 2018)
  • The Hon. Mr. Justice Roberto Ribeiro (since September 2000)
  • The Hon. Mr. Justice Joseph Fok (since October 2013)
  • The Hon. Mr. Justice Johnson Lam (nominated in May 2021; pending Legislative Council endorsement)

List of permanent judges


Chief Justices

No. Name Chinese name Took office Left office Tenure length Inner bar Appointed by
1 Andrew Li Kwok-nang, GBM
(Born 12 December 1948; age 72)
李國能 1 July 1997 31 August 2010 13 years and 62 days QC (1988) Tung Chee-hwa
2 Geoffrey Ma Tao-li, GBM
(Born 11 January 1956; age 65)
馬道立 1 September 2010 10 January 2021 10 years and 132 days QC (1993) Donald Tsang
3 Andrew Cheung Kui-nung, GBM
(Born 24 September 1961; age 59)
張舉能 11 January 2021 Incumbent 198 days Carrie Lam

Permanent Judges

No. Name Chinese name Replacing Took office Tenure end Tenure length Inner bar Appointed by
1 Henry Denis Litton, GBM
(Born 7 August 1934; age 86)
烈顯倫 Inaugural 1 July 1997 13 September 2000[lower-alpha 1] 3 years and 75 days QC (1970) Tung Chee-hwa
2 Charles Arthur Ching, GBM
(7 October 1935 30 November 2000; aged 65)
沈澄 Inaugural 1 July 1997 6 October 2000 3 years and 98 days QC (1974)
3 Syed Kemal Shah Bokhary, GBM
(Born 25 October 1947; age 73)
包致金 Inaugural 1 July 1997 24 October 2012 15 years and 116 days QC (1983)
4 Patrick Chan Siu-oi, GBM
(Born 21 October 1948; age 72)
陳兆愷 Litton 1 September 2000[lower-alpha 2] 20 October 2013 13 years and 50 days
5 Roberto Alexandre Vieira Ribeiro
(Born 20 March 1949; age 72)
李義 Ching 1 September 2000[lower-alpha 3] Incumbent 20 years and 330 days QC (1990)
6 Robert Tang Kwok-ching, GBM, SBS
(Born 7 January 1947; age 74)
鄧國楨 Bokhary 25 October 2012 24 October 2018 6 years and 0 days QC (1986) Leung Chun-ying
7 Joseph Paul Fok
(Born 24 September 1962; age 58)
霍兆剛 Chan 21 October 2013 Incumbent 7 years and 280 days SC (1999)
8 Andrew Cheung Kui-nung, GBM
(Born 24 September 1961; age 59)
張舉能 Tang 25 October 2018 10 January 2021[lower-alpha 4] 2 years and 78 days Carrie Lam
9 Johnson Lam Man-hon
(Born August 1961; age 59)
林文瀚 Cheung TBD Incumbent TBD

List of non-permanent judges


Current non-permanent judges from Hong Kong

No. Name Chinese nameTook office Tenure lengthPrevious judicial offices Inner barAppointed by
1 Frank Stock, GBS
(Born 15 June 1945; age 76)
司徒敬1 September 2010 10 years and 330 daysDeputy High Court Judge (1991)
Judge of the High Court of Justice/Court of First Instance (1992–2000)
Justice of Appeal of the Court of Appeal (2000–09)
Vice-President of the Court of Appeal (2009–14)
QC (1985) Donald Tsang
2 Syed Kemal Shah Bokhary, GBM
(Born 25 October 1947; age 73)
包致金25 October 2012 8 years and 276 daysJudge of the High Court of Justice (1989–93)
Justice of Appeal of the Court of Appeal (1993–97)
Permanent Judge of the Court of Final Appeal (1997–2012)
QC (1983)Leung Chun-ying
3 Patrick Chan Siu-oi, GBM
(Born 21 October 1948; age 72)
陳兆愷21 October 2013 7 years and 280 daysJudge of the District Court (1987–91)
Deputy Registrar of the Supreme Court (1991–92)
Judge of the High Court of Justice (1992–97)
Chief Judge of the High Court (1997–2000)
Permanent Judge of the Court of Final Appeal (2000–13)
4 Robert Tang Kwok-ching, GBM, SBS
(Born 7 January 1947; age 74)
鄧國楨25 October 2018 2 years and 276 daysDeputy District Judge (1982)
Deputy High Court Judge (1986)
Recorder of the High Court of Justice/Court of First Instance (1995–2004)
Judge of the Court of First Instance (2004–05)
Justice of Appeal of the Court of Appeal (2005–06)
Vice-President of the Court of Appeal (2006–12)
Non-Permanent Judge of the Court of Final Appeal (2010–12)
Permanent Judge of the Court of Final Appeal (2012–18)
QC (1986) Carrie Lam

Current non-permanent judges from other common law jurisdictions

No. Jurisdiction Name Chinese nameTook office Tenure lengthPrior most senior judicial role Inner barAppointed by
1 United Kingdom Lord Hoffmann, GBS 賀輔明勳爵12 January 1998 23 years and 197 daysLord of Appeal in Ordinary (1995–2009) QC (1977)Tung Chee-hwa
2 Australia Anthony Murray Gleeson, GBS 紀立信1 March 2009 12 years and 149 daysChief Justice of Australia (1998–2008) QC (1974)Donald Tsang
3 United Kingdom Lord Walker of Gestingthorpe, GBS 華學佳勳爵1 March 2009 12 years and 149 daysJustice of the Supreme Court of the United Kingdom (2009–13) QC (1982)
4 United Kingdom Lord Neuberger of Abbotsbury, GBS 廖柏嘉勳爵1 March 2009 12 years and 149 daysPresident of the Supreme Court of the United Kingdom (2012–17) QC (1987)
5 United Kingdom Lord Collins of Mapesbury 郝廉思勳爵30 June 2011 10 years and 28 daysJustice of the Supreme Court of the United Kingdom (2009–11) QC (1997)
6 United Kingdom Lord Phillips of Worth Matravers 范理申勳爵1 October 2012 8 years and 300 daysPresident of the Supreme Court of the United Kingdom (2009–12) QC (1978)Leung Chun-ying
7 Australia William Montague Charles Gummow 甘慕賢29 July 2013 7 years and 364 daysJustice of the High Court of Australia (1995–2012) QC (1986)
8 Australia Robert Shenton French 范禮全31 May 2017 4 years and 58 daysChief Justice of Australia (2008–17)
9 United Kingdom Lord Reed of Allermuir 韋彥德勳爵31 May 2017 4 years and 58 daysPresident of the Supreme Court of the United Kingdom (2020–) QC (1995)
10 Canada Beverley Marian McLachlin 麥嘉琳30 July 2018[5] 2 years and 363 daysChief Justice of Canada (2000–17) Carrie Lam
11 United Kingdom Lord Sumption 岑耀信勳爵 18 December 2019[6] 1 year and 222 days Justice of the Supreme Court of the United Kingdom (2012–18) QC (1986)
12 United Kingdom Lord Hodge 賀知義勳爵 1 January 2021[7] 208 days Deputy President of the Supreme Court of the United Kingdom (2020–) QC (1996)

Former non-permanent judges from Hong Kong

No. Name Chinese nameTook officeLeft office Tenure length Prior most senior local judicial role Inner bar Notes Appointed by
1 Sir Denys Tudor Emil Roberts, KBE 羅弼時爵士 28 July 1997 27 July 2003 6 years and 0 days Chief Justice of the Supreme Court (1979–88) QC (1964) Inaugural justice Tung Chee-hwa
2 Sir Alan Armstrong Huggins 赫健士爵士 28 July 199727 July 2003 6 years and 0 days Vice-President of the Court of Appeal (1980–87) Inaugural justice
3 Sir Derek Cons 康士爵士 28 July 1997 27 July 2006 9 years and 0 days Vice-President of the Court of Appeal (1986–93) Inaugural justice
4 William James Silke 邵祺 28 July 1997 27 July 2009 12 years and 0 days Vice-President of the Court of Appeal (1987–94) Inaugural justice
5 Kutlu Tekin Fuad 傅雅德 28 July 1997 27 July 2009 12 years and 0 days Vice-President of the Court of Appeal (1988–93) Inaugural justice
6 Gerald Paul Nazareth, GBS 黎守律 28 July 1997 27 July 2012 15 years and 0 days Vice-President of the Court of Appeal (1994–2000) QC (1981) Inaugural justice
7 John Barry Mortimer, GBS 馬天敏 28 July 1997 27 July 2015 18 years and 0 days Vice-President of the Court of Appeal (1997–99) QC (1971) Inaugural justice
8 Sir Noel Plunkett Power, GBS 鮑偉華爵士 28 July 1997 19 November 2009 12 years and 115 days Vice-President of the Court of Appeal (1997–99) Inaugural justice; died in office
9 Art Michael McMullin 麥慕年 28 July 199727 July 2003 6 years and 0 days Justice of Appeal of the Court of Appeal (1979–86) Inaugural justice
10 Philip Gerard Clough 郭樂富 28 July 1997 27 July 2006 9 years and 0 days Justice of Appeal of the Court of Appeal (1986–92) Inaugural justice
11 Neil Macdougall 麥德高 28 July 199727 July 2003 6 years and 0 days Justice of Appeal of the Court of Appeal (1993–95) Inaugural justice
12 Henry Denis Litton, GBM 烈顯倫 14 September 2000 13 September 2015 15 years and 0 days Permanent Judge of the Court of Final Appeal (1997–2000) QC (1970)
13 Charles Arthur Ching, GBM 沈澄 7 October 2000 30 November 2000 55 days Permanent Judge of the Court of Final Appeal (1997–2000) QC (1974) Died in office
14 Robert Tang Kwok-ching, GBM, SBS 鄧國楨 1 September 2010 24 October 2012 2 years and 54 days Vice-President of the Court of Appeal (2006–12) QC (1986) Appointed Permanent Judge Donald Tsang
15 Michael John Hartmann, GBS 夏正民 1 September 2010 31 August 2016 6 years and 0 days Justice of Appeal of the Court of Appeal (2008–12)

Former non-permanent judges from other common law jurisdictions

No. Jurisdiction Name Chinese nameTook officeLeft office Tenure length Prior most senior judicial role Inner bar Notes Appointed by
1 / New Zealand / United Kingdom Lord Cooke of Thorndon 顧安國勳爵 28 July 1997 27 July 2006 9 years and 0 days Lord of Appeal in Ordinary (1996–2001) QC (1964) Inaugural justice Tung Chee-hwa
2 Australia Sir Anthony Frank Mason, GBM 梅師賢爵士 28 July 199727 July 2015 18 years and 0 days Chief Justice of Australia (1987–95) QC (1964) Inaugural justice
3 New Zealand Sir Edward Jonathan Somers 沈穆善爵士 28 July 1997 3 June 2002 4 years and 311 days Judge of the Court of Appeal of New Zealand (1981–90) QC (1973) Inaugural justice; died in office
4 Australia Sir Daryl Michael Dawson 杜偉舜爵士 1 September 199731 August 2003 6 years and 0 days Justice of the High Court of Australia (1982–97) QC (1971)
5 United Kingdom Lord Nicholls of Birkenhead 李啟新勳爵 12 January 1998 11 January 2004 6 years and 0 days Second Senior Lord of Appeal in Ordinary (2002–07) QC (1974)
6 Australia Sir Francis Gerard Brennan, GBS 布仁立爵士 28 July 2000 27 July 2012 12 years and 0 days Chief Justice of Australia (1995–98) QC (1965)
7 United Kingdom Lord Millett, GBS 苗禮治勳爵 28 July 2000 27 May 2021 20 years and 304 days Lord of Appeal in Ordinary (1998–2004) QC (1974) Died in office
8 New Zealand Sir Johann Thomas Eichelbaum 艾俊彬爵士 28 July 2000 27 July 2012 12 years and 0 days Chief Justice of New Zealand (1989–99) QC (1978)
9 United Kingdom Lord Scott of Foscote 施廣智勳爵 28 July 2003 27 July 2012 9 years and 0 days Lord of Appeal in Ordinary (2000–09) QC (1975)
10 United Kingdom Lord Woolf, GBS 伍爾夫勳爵 28 July 2003 27 July 2012 9 years and 0 days Lord Chief Justice of England and Wales (2000–05)
11 New Zealand Sir Ivor Lloyd Morgan Richardson 韋卓善爵士 28 July 2003 27 July 2009 6 years and 0 days President of the Court of Appeal of New Zealand (1996–2002)
12 Australia Michael Hudson McHugh 馬曉義 1 July 2006 30 June 2012 6 years and 0 days Justice of the High Court of Australia (1989–2005) QC (1973) Donald Tsang
13 New Zealand Sir Thomas Munro Gault, KNZM 高禮哲爵士 1 July 2006 19 May 2015 8 years and 323 days Justice of the Supreme Court of New Zealand (2004–06) QC (1984) Died in office
14 United Kingdom Lord Clarke of Stone-cum-Ebony 簡嘉麒勳爵 30 June 2011 29 June 2020 9 years and 0 days Justice of the Supreme Court of the United Kingdom (2009–17) QC (1979)
15 Australia James Jacob Spigelman, AC 施覺民 29 July 2013 2 September 2020 7 years and 36 days Chief Justice of New South Wales (1998–2011) QC (1986) Resigned mid-term[8] Leung Chun-ying
16 United Kingdom Baroness Hale of Richmond 何熙怡女男爵 30 July 2018 29 July 2021 3 years and 0 days President of the Supreme Court of the United Kingdom (2017–20) QC (1989) Carrie Lam

Controversies


Article 158 interpretation

The controversial power of final interpretation of "national" law including the Basic Law is vested in the Standing Committee of the National People's Congress of China (NPCSC) by virtue of Article 158 of the Basic Law and by the Constitution of the PRC; however, "national" laws which are not explicitly listed in Annex III of the Basic Law are not operative in Hong Kong.

Article 158 delegates such power to the courts of Hong Kong for interpretation while handling court cases. Although this arrangement has attracted criticism of "undermining judicial independence", an interpretation by the NPCSC does not affect any court judgments already rendered. This practice is highly controversial as it contradicts the power of final adjudication; the first time an interpretation occurred in 1999, all five judges (including the Chief Justice, all three permanent justices and one non-permanent justice) involved in the case reportedly considered quitting the top court in protest.[9]

Instances of Article 158 interpretations are as follows:

Kemal Bokhary replacement

In 2012, Permanent Judge Kemal Bokhary - known as a leading liberal and dissenting voice on the Court - did not have his tenure extended past the mandated retirement age of 65. His replacement, however, was 65-year old Robert Tang, who was even older than Bokhary but was seen as more conservative.[11]

China's National Security Law

In September 2020, then-non-permanent judge James Spigelman resigned in response to China's controversial National Security Law being imposed on Hong Kong, but Spigelman did not elaborate further.[12]

Maria Yuen nomination saga

In June 2021, Justice Maria Yuen was recommended for appointment as a permanent judge by the Judicial Officers Recommendation Commission. However the promotion was rejected by pro-Beijing legislators, in an unprecedented breach of the norms of an independent legal system. The legislators, who by protocol accept the recommendations of the Commission, claimed that she might be influenced by her husband, former Chief Justice Geoffrey Ma, whose defence of Hong Kong's judicial independence they considered unpatriotic.[13]

See also


Notes


  1. Justice Litton began pre-resignation leave on 1 August 2000.
  2. Took office before the retirement of his predecessor, Litton PJ; hence the number of active PJ's was briefly more than the usual 3.
  3. Took office before the retirement of his predecessor, Ching PJ; hence the number of active PJ's was briefly more than the usual 3.
  4. Became the 3rd Chief Justice.

References