Court of Final Appeal (Hong Kong)

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).

The Court of Final Appeal is made up of the Chief Justices, 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.

Whether a prospective appellant is permitted to appeal 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.

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.

Since the enactment of the National Security Law in 2020, no foreign non-permanent judges has sat during a National Security case, being replaced instead by designated Hong Kong non-permanent judges.

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.

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 Registrars are as follows:

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

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).

• Former French Mission Building (1 July 1997 – 6 September 2015)
• Court of Final Appeal Building (since 7 September 2015)

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  The Court of Final Appeal of Hong Kong was housed in the Former French Mission Building until September 2015
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  Entrance of the Former French Mission Building
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  The Court of Final Appeal Building from Prince's Building
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  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 and the Supreme Court of Hong Kong
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  Hong Kong Court of Final Appeal building at night from Prince's Building
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  Plaque beside the entrance of the Court of Final Appeal

The Cheung Court began on 11 January 2021, when Andrew Cheung began his tenure as the 3rd Chief Justice. Currently, 18 justices serve on the Cheung Court, including the Chief Justice, 3 Permanent Judges, and 12 non-permanent judges (8 of whom 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)

• Beverley McLachlin has announced that she will not renew her term when it ends on 29 July 2024

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.^[13]

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.^{[14][15][16][17]} The term "Court of Semi-Final Appeal" was first officially referenced to by then-Secretary for Justice Elsie Leung as far back as 1999.^[18] A more detailed list of controversies around the CFA are listed below.

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.^[19]

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."^[20]

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

• 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)
• 2005: Dealing with an incomplete term of a Chief Executive
• 2011: State immunity and the jurisdiction of Hong Kong courts^[21]
• 2016: Legislative Council oath-taking controversy

• 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.^[19]

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".^[22]

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.

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.^[23] 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."^[24] On 6 June 2024, Lord Sumption and Lord Collins resigned as non-permanent judges, with Lord Collins stating that it was "because of the political situation",^[8][25] whereas Sumption more explicitly stated that Hong Kong was "slowly becoming a totalitarian state".^[26]

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.^[27] 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.^[28][29]

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 full-time to the Hong Kong bar before being allowed to participate in national security trials.^[30]

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."^[31] 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."^[32][33]

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.^[34]

• Law of Hong Kong
• Judiciary of Hong Kong
• Chief Justice of the Court of Final Appeal
• Permanent Judges of the Court of Final Appeal
• High Court (Hong Kong)
• Chief Judge of the High Court of Hong Kong
• Supreme Court (Hong Kong)

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Hong Kong Court of Final Appeal Ordinance

• Hong Kong Court of Final Appeal