Wikipedia

Hong Kong Court of Final Appeal

(Redirected from Court of Final Appeal of Hong Kong)
For the building, see Court of Final Appeal Building.

The Hong Kong Court of Final Appeal (HKCFA) 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 Hong Kong Basic Law, 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
Map
22°16′51″N 114°09′37″E / 22.28090°N 114.16035°E / 22.28090; 114.16035
Established1 July 1997; 27 years ago (1997-07-01)
Location8 Jackson Road, Central,
Hong Kong[1]
Coordinates22°16′51″N 114°09′37″E / 22.28090°N 114.16035°E / 22.28090; 114.16035
Composition methodAppointment by the Chief Executive acting in accordance with the recommendation of the Judicial Officers Recommendation Commission with Legislative Council endorsement
Authorised byHong Kong Basic Law
Hong Kong Court of Final Appeal Ordinance
Judge term lengthUntil retirement age of 70 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
Websitehkcfa.hk
Chief Justice of the Court of Final Appeal
CurrentlyAndrew Cheung
Since11 January 2021
Hong Kong Court of Final Appeal
Traditional Chinese香港終審法院
Simplified Chinese香港终审法院
Transcriptions
Standard Mandarin
Hanyu PinyinXiānggǎng Zhōngshěnfǎyuàn
Yue: Cantonese
Yale RomanizationHēung góng jūng sám faat yuhn
JyutpingHoeng1 gong2 zung1 sam2 faat3 jyun6

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

Role of the court

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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 handover of Hong Kong from the United Kingdom to the People's Republic of China was 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

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Judges

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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, Canada and Scotland. Aside from the Chief Justice, there is no nationality requirement for any of the permanent or non-permanent judges.

Permitting an appeal

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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.

Hearing an appeal

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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.

Judicial assistants

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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

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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 is as follows:

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

Building

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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

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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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    Statue of Tames, the goddess of justice, standing on the building of the Court of Final Appeal
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    Statues of Althea, the god of truth, and Klementina, the god of mercy
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    The Court of Final Appeal has been based at 8 Jackson Road since 7 September 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

Current court

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The Cheung Court

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The Cheung Court began on 11 January 2021, when Andrew Cheung began his tenure as the 3rd Chief Justice. Currently, 14 justices serve on the Cheung Court, including the Chief Justice, 3 Permanent Judges, and 10 non-permanent judges (6 of whom are from other common law jurisdictions).

Permanent members of the court

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  • 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

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Chief Justices

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No. Name Chinese name Tenure start Tenure end Tenure length Previous judicial office Inner bar Appointed by
1 Andrew Li Kwok-nang, GBM
(Born 12 December 1948; age 75) 		李國能 1 July 1997 31 August 2010 13 years and 62 days None (Barrister in private practice)
(Concurrent Deputy High Court Judge) 		KC (1988) Tung Chee-hwa
2 Geoffrey Ma Tao-li, GBM
(Born 11 January 1956; age 68) 		馬道立 1 September 2010 10 January 2021 10 years and 132 days Chief Judge of the High Court KC (1993) Donald Tsang
3 Andrew Cheung Kui-nung, GBM
(Born 24 September 1961; age 63) 		張舉能 11 January 2021 Incumbent 3 years and 309 days Permanent Judge of the Court of Final Appeal Carrie Lam

Permanent Judges

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No. Name Chinese name Replacing Tenure start Tenure end Tenure length Previous judicial office Inner bar Appointed by
1 Henry Denis Litton, GBM
(Born 7 August 1934; age 90) 		烈顯倫 Inaugural 1 July 1997 13 September 2000[a] 3 years and 75 days Vice-president of the Court of Appeal KC (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 Justice of Appeal KC (1974)
3 Syed Kemal Shah Bokhary, GBM
(Born 25 October 1947; age 77) 		包致金 Inaugural 1 July 1997 24 October 2012 15 years and 116 days Justice of Appeal KC (1983)
4 Patrick Chan Siu-oi, GBM
(Born 21 October 1948; age 76) 		陳兆愷 Litton 1 September 2000[b] 20 October 2013 13 years and 50 days Chief Judge of the High Court
5 Roberto Alexandre Vieira Ribeiro, GBM
(Born 20 March 1949; age 75) 		李義 Ching 1 September 2000[c] Incumbent 24 years and 75 days Justice of Appeal KC (1990)
6 Robert Tang Kwok-ching, GBM, SBS
(Born 7 January 1947; age 77) 		鄧國楨 Bokhary 25 October 2012 24 October 2018 6 years and 0 days Vice-president of the Court of Appeal
(Concurrent Non-Permanent Judge of the Court of Final Appeal) 		KC (1986) Leung Chun-ying
7 Joseph Paul Fok
(Born 24 September 1962; age 62) 		霍兆剛 Chan 21 October 2013 Incumbent 11 years and 25 days Justice of Appeal SC (1999)
8 Andrew Cheung Kui-nung, GBM
(Born 24 September 1961; age 63) 		張舉能 Tang 25 October 2018 10 January 2021[d] 2 years and 78 days Chief Judge of the High Court Carrie Lam
9 Johnson Lam Man-hon
(Born August 1961; age 63) 		林文瀚 Cheung 30 July 2021 Incumbent 3 years and 108 days Vice-president of the Court of Appeal

List of non-permanent judges

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Current non-permanent judges from Hong Kong

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No. Name Chinese name Tenure start Tenure length Previous judicial offices Inner bar Appointed by
1 Frank Stock, GBS
(Born 15 June 1945; age 79) 		司徒敬 1 September 2010 14 years and 75 days Deputy 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) 		KC (1985) Donald Tsang
2 Syed Kemal Shah Bokhary, GBM
(Born 25 October 1947; age 77) 		包致金 25 October 2012 12 years and 21 days Judge 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) 		KC (1983) Leung Chun-ying
3 Patrick Chan Siu-oi, GBM
(Born 21 October 1948; age 76) 		陳兆愷 21 October 2013 11 years and 25 days Judge 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 77) 		鄧國楨 25 October 2018 6 years and 21 days Deputy 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) 		KC (1986) Carrie Lam

Current non-permanent judges from other common law jurisdictions

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No. Jurisdiction Name Chinese name Tenure start Tenure length Prior most senior judicial role Inner bar Appointed by
1 United Kingdom Lord Hoffmann, GBS 賀輔明勳爵 12 January 1998 26 years and 308 days Lord of Appeal in Ordinary (1995–2009) KC (1977) Tung Chee-hwa
2 United Kingdom Lord Neuberger of Abbotsbury, GBS 廖柏嘉勳爵 1 March 2009 15 years and 259 days President of the Supreme Court of the United Kingdom (2012–17) KC (1987) Donald Tsang
3 Australia William Montague Charles Gummow 甘慕賢 29 July 2013 11 years and 109 days Justice of the High Court of Australia (1995–2012) KC (1986) Leung Chun-ying
4 Australia Robert Shenton French 范禮全 31 May 2017 7 years and 168 days Chief Justice of Australia (2008–17)
5 Australia Patrick Anthony Keane 祈顯義 6 April 2023[5] 1 year and 223 days Justice of the High Court of Australia (2013–2022) KC (1988) John Lee
6 Australia James Leslie Bain Allsop 歐頌律 24 May 2024[6] 175 days Chief Justice of the Federal Court of Australia (2013–2023) SC (1994)

Former non-permanent judges from Hong Kong

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No. Name Chinese name Tenure start Tenure end 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 1997 27 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 1997 27 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 1997 27 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) KC (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) KC (1986) First NPJ 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

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No. Jurisdiction Name Chinese name Tenure start Tenure end 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 1997 27 July 2015 18 years and 0 days Chief Justice of Australia (1987–95) KC (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 1997 31 August 2003 6 years and 0 days Justice of the High Court of Australia (1982–97) KC (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) KC (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) KC (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 Walker of Gestingthorpe, GBS 華學佳勳爵 1 March 2009 16 November 2023 14 years and 261 days Justice of the Supreme Court of the United Kingdom (2009–13) KC (1982) Died in office
15 Australia Anthony Murray Gleeson, GBS 紀立信 1 March 2009 29 February 2024 15 years and 0 days Chief Justice of Australia (1998–2008) KC (1974)
16 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) KC (1979)
17 United Kingdom Lord Collins of Mapesbury 郝廉思勳爵 30 June 2011 5 June 2024 12 years and 342 days Justice of the Supreme Court of the United Kingdom (2009–11) KC (1997) Resigned mid-term[7]
18 United Kingdom Lord Phillips of Worth Matravers, GBS 范理申勳爵 1 October 2012 30 September 2024 12 years and 0 days President of the Supreme Court of the United Kingdom (2009–12) KC (1978) Leung Chun-ying
19 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) KC (1986) First NPJ to resign mid-term[8]
20 United Kingdom Lord Reed of Allermuir 韋彥德勳爵 31 May 2017 30 March 2022 4 years and 304 days President of the Supreme Court of the United Kingdom (2020–) KC (1995) Resigned mid-term[9]
21 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) KC (1989) First NPJ to not renew term Carrie Lam
22 Canada Beverley Marian McLachlin 麥嘉琳 30 July 2018 29 July 2024 6 years and 0 days Chief Justice of Canada (2000–17)
23 United Kingdom Lord Sumption 岑耀信勳爵 18 December 2019[10] 4 June 2024 4 years and 170 days Justice of the Supreme Court of the United Kingdom (2012–18) KC (1986) Resigned mid-term[7]
24 United Kingdom Lord Hodge 賀知義勳爵 1 January 2021[11] 30 March 2022 1 year and 89 days Deputy President of the Supreme Court of the United Kingdom (2020–) KC (1996) Resigned mid-term[9]

Number of non-permanent judges from each common law jurisdiction

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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]

Jurisdiction Current Former Total
United Kingdom 2 12 14
Australia 4 6 10
New Zealand 0 5 5
Canada 0 1 1
Total 6 24 30

Controversies

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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

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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, of which 5 interpreted the Basic Law and 1 interpreted the national security law.

Basic Law interpretations

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National security law interpretations

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  • 2022: Granting the Chief Executive power to bar foreign lawyers (barristers and solicitors qualified in a jurisdiction outside of Hong Kong, regardless of nationality) 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

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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; this appointment was described as a "surprise" by the SCMP.[21] Bokhary himself has said that he believes his tenure was not extended due to his "liberal judgments".[21]

Hong Kong National Security Law

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Designated national security law judges (2020)

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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)

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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."[9]

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]

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",[7][24] whereas Sumption more explicitly stated that Hong Kong was "slowly becoming a totalitarian state".[25] In response to these resignations, Secretary for Justice Paul Lam SC downplayed the importance of non-permanent judges, said that, "... the credit for the fact that Hong Kong has a high level of rule of law largely goes to our local judges; it is not the case that losing a few non-permanent judges will deal a heavy blow to our rule of law."[26] Lord Sumption then further reiterated that his remarks were not said lightly, and also stated, “I have no desire to engage in a slanging match with the Chief Executive [John Lee], and certainly not with the Chief Justice [Andrew Cheung], for whom I have the greatest respect."[27]

Overseas counsel for national security defendants (2023)

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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.[28] 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.[29][30]

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.[31]

Proposed United States sanctions on Hong Kong judges (2023)

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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."[32] 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."[33][34]

Maria Yuen nomination saga

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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.[35]

See also

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Notes

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  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

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  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. ^ [1] Archived 16 October 2013 at the Wayback Machine
  3. ^ [2] Archived 4 December 2013 at the Wayback Machine
  4. ^ "Finance Committee – Public Works Subcommittee (Papers) 8 Nov 95". Government of Hong Kong. Retrieved 20 June 2015.
  5. ^ "Appointment of non-permanent judge from another common law jurisdiction of the Court of Final Appeal". Government of Hong Kong. 3 April 2023.
  6. ^ "Appointment of non-permanent judge from another common law jurisdiction of the Court of Final Appeal".
  7. ^ a b c "Former top UK judges resign from Hong Kong court amid China crackdown". Financial Times. Retrieved 7 June 2024.
  8. ^ "REVOCATION OF APPOINTMENT OF JUDGE FROM ANOTHER COMMON LAW JURISDICTION OF THE HONG KONG COURT OF FINAL APPEAL" (PDF).
  9. ^ a b c "Role of UK Supreme Court judges on the Hong Kong Court of Final Appeal – update". 30 March 2022.
  10. ^ "Appointments of non-permanent judge from another common law jurisdiction of the Court of Final Appeal and the Chief Judge of the High Court".
  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. ^ 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". South China Morning Post.
  13. ^ Lee, Martin (21 May 2000). "RTHK "Letter to Hong Kong"".
  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. ^ Webb, David (16 October 2019). "ERO: one judicial review, two judges".
  16. ^ "Court undermined by reinterpretation". 9 March 2002.
  17. ^ Leung, Elsie (18 May 1999). "Speech by Secretary for Justice".
  18. ^ a b Chau, Candice (8 January 2023). "Explainer: Beijing's first interpretation of Hong Kong's national security law". Hong Kong Free Press.
  19. ^ "All city's top judges 'considered quitting'". South China Morning Post. 8 September 2011.
  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. ^ a b Ng, Kang Chung (5 November 2012). "Former judge Bokhary: 'I was ousted for being too liberal'". South China Morning Post. Archived from the original on 30 October 2016.
  22. ^ "Australian judge quits Hong Kong court, citing national security law". Reuters. 18 September 2020. Archived from the original on 18 September 2020.
  23. ^ "Lady Hale suggests 'time has come' for British judges to leave Hong Kong court". Scottish Legal News. 17 November 2022.
  24. ^ Grundy, Tom (6 June 2024). "Two UK judges quit Hong Kong's top court". Hong Kong Free Press. Retrieved 7 June 2024.
  25. ^ Grundy, Tom (10 June 2024). "Lord Sumption: Hong Kong 'slowly becoming a totalitarian state,' says UK judge who quit city's top court". Hong Kong Free Press. Retrieved 15 June 2024.
  26. ^ Tse, Hans (20 June 2024). "Hong Kong's rule of law hinges on local rather than foreign judges, justice chief Paul Lam says". Hong Kong Free Press.
  27. ^ Singh, Dippy. "Hong Kong judge drama continues to unfold".
  28. ^ "Media tycoon Jimmy Lai's trial adjourned to Dec 13, Hong Kong Immigration withholds visa extension for his lawyer". HKFP. 1 December 2022.
  29. ^ Pannick, David (5 December 2022). "Hong Kong media trial is crunch time for its rule of law". The Times.
  30. ^ "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.
  31. ^ "Hong Kong tycoon Jimmy Lai's legal team joined by 'specialist' New Zealand lawyer seen as replacement for barred Briton Timothy Owen". South China Morning Post. 20 December 2023.
  32. ^ Pang, Jessie (12 May 2023). "China condemns U.S. report calling for sanctions against Hong Kong security judges". Reuters.
  33. ^ "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.
  34. ^ "Judiciary responds to media enquiries". 12 May 2023.
  35. ^ Hong Kong pro-Beijing legislators intervene in judicial appointment, Financial Times, by Primrose Riordan, 23 June 2021
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