The Hong Kong Court of Final Appeal (HKCFA or CFA) is the
final appellate court of
Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delta i ...
. 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
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
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.
The court meets in the
Court of Final Appeal Building located in
Central, Hong Kong
Central (also Central District) is the central business district of Hong Kong. It is located in Central and Western District, on the north shore of Hong Kong Island, across Victoria Harbour from Tsim Sha Tsui, the southernmost point of Kow ...
.
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
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
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.
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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
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
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is ...
, 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
In common law legal systems original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision.
India
In India, the Su ...
; an appeal has to originate from the
High Court (either from the
Court of Appeal or the
Court of First Instance
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accor ...
).
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
The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing global pandemic of coronavirus disease 2019 (COVID-19) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The novel virus was first identified ...
), 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. In September 2015, the court relocated to the former (until 2011)
Legislative Council Building
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known as p ...
, which was originally the colonial
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
(1912–1985).
List of buildings used
*
Former French Mission Building (1 July 1997 – 6 September 2015)
*
Court of Final Appeal Building (since 7 September 2015)
Gallery
File:Court of Final Appeal (HK).jpg, The Court of Final Appeal of Hong Kong was housed in the Former French Mission Building until September 2015
File:Court of Final Appeal.jpg, Entrance of the Former French Mission Building
File:Court of Final Appeal Building.jpg, The Court of Final Appeal Building from Prince's Building
File:Legislative Council building.JPG, The Court of Final Appeal has been based at 8 Jackson Road since 7 Sept 2015; the building is the former home of the Legislative Council of Hong Kong
The Legislative Council of the Hong Kong Special Administrative Region (LegCo) is the unicameral legislature of Hong Kong. It sits under China's " one country, two systems" constitutional arrangement, and is the power centre of Hong Kon ...
and the Supreme Court of Hong Kong
File:Court of Final Appeal at night.jpg, Hong Kong Court of Final Appeal building at night from Prince's Building
File:Court of Final Appeal plaque.jpg, Plaque beside the entrance of the Court of Final Appeal
Current court
The Cheung Court
The Cheung Court began on 11 January 2021 ( ago), when Andrew Cheung took over as the 3rd Chief Justice. Currently, 18 justices serve on the Cheung Court, including the Chief Justice, 3 Permanent Judges, and 14 non-permanent judges (10 of which are from other common law jurisdictions).
*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
Permanent Judges
List of non-permanent judges
Current non-permanent judges from Hong Kong
Current non-permanent judges from other common law jurisdictions
Former non-permanent judges from Hong Kong
Former non-permanent judges from other common law jurisdictions
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
The Standing Committee of the National People's Congress of the People's Republic of China (NPCSC) is the permanent body of the National People's Congress (NPC) of the People's Republic of China (PRC), which is the highest organ of state po ...
(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 of ''
Ng Ka Ling v Director of Immigration'' reportedly considered quitting the top court in protest.
Instances of Article 158 interpretations are as follows:
* 1999:
Right of abode in Hong Kong
* 2004: Modifying the process of electoral reforms regarding the election of the Hong Kong Chief Executive (
Basic Law Article 45 and
2005 Hong Kong Chief Executive election
The 2005 Hong Kong Chief Executive election was held to fill the vacancy of the territory's top office. Then Chief Executive Tung Chee-hwa submitted his resignation to the central government in Beijing, and was officially approved on 12 March. ...
)
* 2005:
Dealing with an incomplete term of a Chief Executive
* 2011: State immunity and the jurisdiction of Hong Kong courts
* 2016:
Legislative Council oath-taking controversy
* 2022: Participation of overseas solicitors and barristers in national security law cases
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.
China's National Security Law
Resignation of non-permanent judges
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. 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."
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.
Counsel for national security defendants
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. 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.
Maria Yuen nomination saga
In June 2021, Justice
Maria Yuen
Maria Candace Yuen Ka-ning (; born 29 December 1953) is a Hong Kong judge. She has served as a Justice of Appeal of the Court of Appeal since May 2002.
Education
Yuen was educated at Sacred Heart Canossian College. She graduated from the Unive ...
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.
[Hong Kong pro-Beijing legislators intervene in judicial appointment, ]Financial Times
The ''Financial Times'' (''FT'') is a British daily newspaper printed in broadsheet and published digitally that focuses on business and economic current affairs. Based in London, England, the paper is owned by a Japanese holding company, Nikke ...
, by Primrose Riordan, 23 June 2021
See also
*
Law of Hong Kong
The law of the Hong Kong Special Administrative Region has its foundation in the English common law system, inherited from being a former British colony and dependent territory. There are several sources of law, the primary ones being statute ...
*
Judiciary of Hong Kong
*
Chief Justice of the Court of Final Appeal
*
Permanent Judges of the Court of Final Appeal
*
High Court (Hong Kong)
The High Court of the Hong Kong Special Administrative Region is a part of the legal system of Hong Kong. It consists of the Court of Appeal and the Court of First Instance; it deals with criminal and civil cases which have risen beyond the ...
*
Chief Judge of the High Court of Hong Kong
*
Supreme Court (Hong Kong)
Notes
References
External links
Hong Kong Court of Final Appeal
{{DEFAULTSORT:Court Of Final Appeal (Hong Kong)
Hong Kong
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delta i ...
Government Hill
1997 establishments in Hong Kong
Courts and tribunals established in 1997