Court_of_Final_Appeal_of_Hong_Kong

Court of Final Appeal (Hong Kong)

Court of Final Appeal (Hong Kong)

Final appellate court of Hong Kong

For the building, see Court of Final Appeal Building.

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.

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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.

However, this power is not absolute; the court's decisions can be overturned by the Chinese government via a controversial process known as an "interpretation" via Article 158 of the Basic Law.[2][3]

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).

Court structure

Judges

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.

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.

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, or the overseas judge may 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. There is no mandatory retirement age for a non-permanent judge.

Judicial Assistants

Since 2009, under the auspices of the then-Chief Justice Andrew Li, judicial assistants have been appointed to provide support and assistance to its judges.

Registrar

There is also a Registrar attached to the Court of Final Appeal, to help with review of appeal applications and other administrative duties; the Registrar is usually recruited from the District Court level. The list of Registrar's are as follows:

  1. Edward Timothy Starbuck Woolley (1997–1999)
  2. Simon Kwang Cheok-weung (2014–2018)
  3. Wong King-wah (since June 2023)

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

Current court

The Cheung Court

The Cheung Court began on 11 January 2021 (3 years and 97 days ago), when Andrew Cheung began his tenure as the 3rd Chief Justice. Currently, 17 justices serve on the Cheung Court, including the Chief Justice, 3 Permanent Judges, and 13 non-permanent judges (9 of whom are from other common law jurisdictions).

Permanent members of the court

  • 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 (since July 2021)

List of permanent judges

Chief Justices

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Permanent Judges

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List of non-permanent judges

Current non-permanent judges from Hong Kong

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Current non-permanent judges from other common law jurisdictions

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  • The nomination of Australian judge James Allsop to join as a non-permanent judge was accepted by the Chief Executive on 25 March, and is currently pending approval from the Legislative Council.[8]

Former non-permanent judges from Hong Kong

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Former non-permanent judges from other common law jurisdictions

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Number of judges from each common law jurisdiction

Traditionally, all overseas non-permanent judges came from three common law jurisdictions: the United Kingdom, Australia, and New Zealand. In 2018, Beverly McLachlin - the former Chief Justice of Canada - became the first Canadian (and, along with Baroness Hale, one of the first two women) to be appointed to the CFA.[12]

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Controversies

While the CFA is the final appellate court in Hong Kong, and is granted power of final adjudication, the fact that the Central Government of China has the power to interpret - in essence overturn - the CFA's rulings has caused great controversy over the years. This has led the CFA to be mockingly referred to as the "Court of Semi-Final Appeal" by people such as former Hong Kong Bar Association Chairman Martin Lee KC SC, veteran activist-investor David Webb, human rights lawyer Mark Daly, as well as the general public.[13][14][15][16] The term "Court of Semi-Final Appeal" was first officially referenced to by then-Secretary for Justice Elsie Leung as far back as 1999.[17] A more detailed list of controversies around the CFA are listed below.

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. Since 2020, Article 158 interpretations may also be applied to the Hong Kong national security law.[18]

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 of Ng Ka Ling v Director of Immigration reportedly considered quitting the top court in protest. The judges ultimately did not quit, as "the justices feared they would be replaced by less independent or competent jurists."[19]

Since 1997, there have been 6 interpretations, 5 of which interpreted the Basic Law, and 1 of which interpreted the national security law.

Basic Law interpretations

National security law interpretations

  • 2022: Granting the Chief Executive power to bar foreign lawyers (barristers and solicitors) from Hong Kong national security law cases (Jimmy Lai's hiring of Tim Owen KC); first interpretation of the Hong Kong national security law and first interpretation relating to foreign lawyers.[18]

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 then-already 65-year old Robert Tang, who was even older than Bokhary but was seen as more conservative. Bokhary himself has said that he believes his tenure was not extended due to his "liberal judgments".[21]

Hong Kong National Security Law

Designated national security law judges (2020)

The introduction of designated national security law judges created two new exclusions for justices on the Court: an overseas non-permanent judge now no longer sits in on a full hearing if it is a national security law case, and not all non-permanent judges - even those from Hong Kong - are approved to sit on national security law cases. This was first evidenced in HKSAR v Lai Chee Ying, where two local non-permanent judges (Stock NPJ and Chan NPJ) sat instead of the usual combination of one local NPJ, and one overseas NPJ.

As of 2024, two non-permanent justices (Bokhary NPJ and Tang NPJ) have still not sat in on any national security law cases; it is unclear whether this is because they have not been designated, or simply have not been scheduled to sit in on a national security case.

Resignation of non-permanent judges (since 2020)

No non-permanent judge from overseas jurisdictions had ever quit the Court mid-term before the enactment of the 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.[22] In March 2022, both Lord Reed and Lord Hodge resigned as non-permanent judges, citing the National Security Law leading to the judges being unable to "continue to sit in Hong Kong without appearing to endorse an administration which has departed from values of political freedom, and freedom of expression, to which the Justices of the Supreme Court are deeply committed."[10]

In November 2022, Lady Hale - who had refused to renew her tenure on the Court in 2020 - suggested that British judges should leave the CFA, stating, "...there's going to come a stage where [British judges] are asked to apply and enforce unacceptable laws, and some of us might think that that stage has already come."[23]

Overseas counsel for national security defendants (2023)

Within hours of the CFA allowing media tycoon Jimmy Lai to hire Tim Owen KC, chief executive John Lee announced that the Government would seek an interpretation under Article 158 to overturn the CFA's decision (as well as overturning the decisions by the Chief Judge and the Court of Appeal). This was roundly condemned by legal pundits, including Elsie Leung and Lord Pannick KC. Even before the interpretation, the Immigration Department withheld Owen's work visa, contrary to what the CFA had ruled.[24] This decision was criticized by leading barrister Lord Pannick KC, who frequently represents the Hong Kong Government in court, and also questioned by Jonathan Kaplan KC, another British King's Counsel who frequently appears in Hong Kong courts.[25][26]

Ultimately, Owen was replaced by Marc Corlett KC, a New Zealand King's Counsel but who had gained admission to the Hong Kong bar in 2020. Corlett was widely seen as a like-for-like replacement for Owen, and showed that overseas specialist lawyers would need to be admitted to the Hong Kong bar before being allowed to participate in national security trials.[27]

Proposed United States sanctions on Hong Kong judges (2023)

The United States Congressional-Executive Commission on China (CECC) released a report on 12 May 2023 suggesting sanctions be placed on 29 hand-picked Hong Kong national security judges (which includes the Chief Justice and 3 Permanent Judges), saying, "As participants in this system, judges appointed to handle national security cases contribute to these systemic violations."[28] This suggestion was rejected by both the Hong Kong Bar Association and the Judiciary, stressing that, "...there is no basis at all to call into question the integrity and independence of Hong Kong judges, whose selection, appointment and discharge of their constitutional role and duties are, and must remain, free from any political considerations and interference."[29][30]

Maria Yuen nomination saga

In June 2021, Justice of Appeal 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.[31]

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

  1. [1]
    "Court Services & Facilities – Court of Final Appeal". Government of Hong Kong. 9 January 2015. Archived from the original on 30 March 2015. Retrieved 20 June 2015.
  2. [2]
    Archived 16 October 2013 at the Wayback Machine
  3. [3]
    Archived 4 December 2013 at the Wayback Machine
  4. [4]
    "Finance Committee – Public Works Subcommittee (Papers) 8 Nov 95". Government of Hong Kong. Retrieved 20 June 2015.
  5. [5]
    Hong Kong Gazette Notice GN5815/2018
  6. [6]
    "Appointments of non-permanent judge from another common law jurisdiction of the Court of Final Appeal and the Chief Judge of the High Court".
  7. [7]
    "Appointment of non-permanent judge from another common law jurisdiction of the Court of Final Appeal". Government of Hong Kong. 3 April 2023.
  8. [8]
    "Appointment of non-permanent judge from another common law jurisdiction of Court of Final Appeal".
  9. [9]
    "REVOCATION OF APPOINTMENT OF JUDGE FROM ANOTHER COMMON LAW JURISDICTION OF THE HONG KONG COURT OF FINAL APPEAL" (PDF).
  10. [10]
    "Role of UK Supreme Court judges on the Hong Kong Court of Final Appeal - update". 30 March 2022.
  11. [11]
    "Appointment of non-permanent judge from another common law jurisdiction of the Court of Final Appeal". HK Government. 23 December 2020. Archived from the original on 23 December 2020.
  12. [12]
    Chung, Kimmy (30 May 2018). "Baroness Hale and Beverly McLachlin become first female judges to join Hong Kong's Court of Final Appeal despite 'national interest' concerns". SCMP.
  13. [13]
    Lee, Martin (21 May 2000). "RTHK "Letter to Hong Kong"".
  14. [14]
    Daly, Mark (2013). "A human rights lawyer's perspective". 9 - A human rights lawyer's perspective from Part II - The Hong Kong Court of Final Appeal. Cambridge University Press. pp. 207–222. doi:10.1017/CBO9780511894763.012. ISBN 9781107011212.
  15. [15]
    Webb, David (16 October 2019). "ERO: one judicial review, two judges".
  16. [16]
    "Court undermined by reinterpretation". 9 March 2002.
  17. [17]
    Leung, Elsie (18 May 1999). "Speech by Secretary for Justice".
  18. [18]
    Chau, Candice (8 January 2023). "Explainer: Beijing's first interpretation of Hong Kong's national security law". Hong Kong Free Press.
  19. [19]
    "All city's top judges 'considered quitting'". SCMP. 8 September 2011.
  20. [20]
    "The decision by the Court of Final Appeal to seek an interpretation of the Basic Law from the Standing Committee of the National People's Congress regarding the controversy of state immunity raised in the debt litigation of the Democratic Republic of Congo" (PDF). LegCo.
  21. [21]
    Ng, Kang Chung (5 November 2012). "Former judge Bokhary: 'I was ousted for being too liberal'". SCMP. Archived from the original on 30 October 2016.
  22. [22]
    "Australian judge quits Hong Kong court, citing national security law". Reuters. 18 September 2020. Archived from the original on 18 September 2020.
  23. [23]
    "Lady Hale suggests 'time has come' for British judges to leave Hong Kong court". Scottish Legal News. 17 November 2022.
  24. [24]
    "Media tycoon Jimmy Lai's trial adjourned to Dec 13, Hong Kong Immigration withholds visa extension for his lawyer". HKFP. 1 December 2022.
  25. [25]
    Pannick, David (5 December 2022). "Hong Kong media trial is crunch time for its rule of law". The Times.
  26. [26]
    "修例通過 外狀打國安案須特首批 或涉複雜案件審批不設時限 有議員促說明準則制衡權力". Ming Pao. 11 May 2023.
  27. [27]
    "Hong Kong tycoon Jimmy Lai's legal team joined by 'specialist' New Zealand lawyer seen as replacement for barred Briton Timothy Owen". SCMP. 20 December 2023.
  28. [28]
    Pang, Jessie (12 May 2023). "China condemns U.S. report calling for sanctions against Hong Kong security judges". Reuters.
  29. [29]
    "Statement of the Hong Kong Bar Association Response to the US Congressional-Executive Commission Staff Research Report May 2023 calling for sanctions on Hong Kong Judges" (PDF). HKBA. 12 May 2023.
  30. [30]
    "Judiciary responds to media enquiries". 12 May 2023.
  31. [31]
    Hong Kong pro-Beijing legislators intervene in judicial appointment, Financial Times, by Primrose Riordan, 23 June 2021
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