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
HongKongCourtOfFinalAppeal.svg
The logo features the Court of Final Appeal Building
Established1 July 1997; 23 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; 114.16035Coordinates: 22°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
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
CurrentlyGeoffrey Ma
Since1 September 2010
Court of Final Appeal
Traditional Chinese香港終審法院

Role of the CourtEdit

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 its 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 StructureEdit

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). 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. Judges appointed pursuant to Article 92 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 AppealEdit

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 AppealEdit

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 Tang and Vice President Stock, as they were then known. This only occurs when the Court is low on non-permanent judges from Hong Kong, and is extended only to the most eminent and senior serving High Court justices.

Article 158 Interpretation ControversyEdit

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.[4]

Instances of Article 158 interpretations are as follows:

BuildingEdit

From its inception in July 1997 until September 2015, the court was located in the Former French Mission Building, in Central.[6] In September 2015 the court relocated to the former (until 2011) Legislative Council Building, which was originally the colonial Supreme Court (1912–1985).

GalleryEdit

List of Permanent JudgesEdit

Chief JusticesEdit

No. Name Chinese name Took office Left office Tenure length Inner Bar
1 Andrew Li Kwok-nang, GBM
(Born 12 December 1948; age 71)
李國能 1 July 1997 31 August 2010 13 years and 62 days QC (1988)
2 Geoffrey Ma Tao-li, GBM
(Born 11 January 1956; age 64)
馬道立 1 September 2010 Incumbent 10 years and 20 days QC (1993)

Permanent JudgesEdit

No. Name Chinese name Replacing Took office Left office Tenure length Inner Bar
1 Henry Denis Litton, GBM
(Born 7 August 1934; age 86)
烈顯倫 Founding Justices 1 July 1997 14 September 2000 3 years and 76 days QC (1970)
2 Charles Arthur Ching, GBM
(7 October 1935 30 November 2000; aged 65)
沈澄 6 October 2000 3 years and 98 days QC (1974)
3 Syed Kemal Shah Bokhary, GBM
(Born 25 October 1947; age 72)
包致金 24 October 2012 15 years and 116 days QC (1983)
4 Patrick Chan Siu-oi, GBM
(Born 21 October 1948; age 71)
陳兆愷 Litton 1 September 2000 20 October 2013 13 years and 50 days
5 Roberto Alexandre Vieira Ribeiro
(Born 20 March 1949; age 71)
李義 Ching 1 September 2000 Incumbent 20 years and 20 days QC (1990)
6 Robert Tang Kwok-ching, GBM, SBS
(Born 7 January 1947; age 73)
鄧國楨 Bokhary 25 October 2012 24 October 2018 6 years and 0 days QC (1986)
7 Joseph Paul Fok
(Born 24 September 1962; age 57)
霍兆剛 Chan 21 October 2013 Incumbent 6 years and 336 days SC (1999)
8 Andrew Cheung Kui-nung
(Born 24 September 1961; age 58)
張舉能 Tang 25 October 2018 Incumbent 1 year and 332 days

The following appointments have been made by the Chief Executive, based on the recommendation of the Judicial Officers Recommendation Commission (JORC), and either pending approval from the Legislative Council (LegCo) or awaiting effective date:

  • Andrew Cheung replacing Geoffrey Ma as Chief Justice (11 January 2021)
  • TBD replacing Andrew Cheung as Permanent Judge (11 January 2021); pending recommendation from the JORC
  • TBD replacing Roberto Ribeiro as Permanent Judge (20 March 2021); pending recommendation from the JORC

List of Non-Permanent JudgesEdit

Current Non-Permanent Judges from Hong KongEdit

No. Name Chinese name Appointed by Took office Tenure length Previous judicial offices
1 Frank Stock, GBS 司徒敬 Donald Tsang 1 September 2010 10 years and 20 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)
2 Syed Kemal Shah Bokhary, GBM 包致金 Leung Chun-ying 25 October 2012 7 years and 332 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)
3 Patrick Chan Siu-oi, GBM 陳兆愷 21 October 2013 6 years and 336 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 鄧國楨 Carrie Lam 25 October 2018 1 year and 332 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)

Current Non-Permanent Judges from Other Common Law JurisdictionsEdit

No. Jurisdiction Name Chinese name Appointed by Took office Tenure length Prior most senior judicial role
1   United Kingdom Lord Hoffmann, GBS 賀輔明勳爵 Tung Chee-hwa 12 January 1998 22 years and 253 days Lord of Appeal in Ordinary (1995–2009)
2   United Kingdom Lord Millett, GBM 苗禮治勳爵 28 July 2000 20 years and 55 days Lord of Appeal in Ordinary (1998–2004)
3   Australia Anthony Murray Gleeson 紀立信 Donald Tsang 1 March 2009 11 years and 204 days Chief Justice of Australia (1998–2008)
4   United Kingdom Lord Walker of Gestingthorpe, GBS 華學佳勳爵 1 March 2009 11 years and 204 days Justice of the Supreme Court of the United Kingdom (2009–13)
5   United Kingdom Lord Neuberger of Abbotsbury, GBS 廖柏嘉勳爵 1 March 2009 11 years and 204 days President of the Supreme Court of the United Kingdom (2012–17)
6   United Kingdom Lord Collins of Mapesbury 郝廉思勳爵 30 June 2011 9 years and 83 days Justice of the Supreme Court of the United Kingdom (2009–11)
7   United Kingdom Lord Phillips of Worth Matravers 范理申勳爵 Leung Chun-ying 1 October 2012 7 years and 356 days President of the Supreme Court of the United Kingdom (2009–12)
8   Australia William Montague Charles Gummow 甘慕賢 29 July 2013 7 years and 54 days Justice of the High Court of Australia (1995–2012)
9   Australia Robert Shenton French 范禮全 31 May 2017 3 years and 113 days Chief Justice of Australia (2008–17)
10   United Kingdom Lord Reed of Allermuir 韋彥德勳爵 31 May 2017 3 years and 113 days President of the Supreme Court of the United Kingdom (2020–)
11   United Kingdom Baroness Hale of Richmond 何熙怡女男爵 Carrie Lam 30 July 2018[7] 2 years and 53 days President of the Supreme Court of the United Kingdom (2017–20)
12   Canada Beverley Marian McLachlin 麥嘉琳 30 July 2018[7] 2 years and 53 days Chief Justice of Canada (2000–17)
13   United Kingdom Lord Sumption 岑耀信勳爵 18 December 2019[8] 278 days Justice of the Supreme Court of the United Kingdom (2012–18)

Former Non-Permanent Judges from Hong KongEdit

No. Name Chinese name Appointed by Took office Left office Tenure length Prior most senior local judicial role Notes
1 Sir Denys Tudor Emil Roberts, KBE 羅弼時爵士 Tung Chee-hwa 28 July 1997
(Founding NPJs)
27 July 2003 6 years and 0 days Chief Justice of the Supreme Court (1979–88)
2 Sir Alan Armstrong Huggins 赫健士爵士 27 July 2003 6 years and 0 days Vice-President of the Court of Appeal (1980–87)
3 Neil Macdougall 麥德高 27 July 2003 6 years and 0 days Justice of Appeal of the Court of Appeal (1993–95)
4 Art Michael McMullin 麥慕年 27 July 2003 6 years and 0 days Justice of Appeal of the Court of Appeal (1979–86)
5 Sir Derek Cons 康士爵士 27 July 2006 9 years and 0 days Vice-President of the Court of Appeal (1986–93)
6 Philip Gerard Clough 郭樂富 27 July 2006 9 years and 0 days Justice of Appeal of the Court of Appeal (1986–92)
7 William James Silke 邵祺 27 July 2009 12 years and 0 days Vice-President of the Court of Appeal (1987–94)
8 Kutlu Tekin Fuad 傅雅德 27 July 2009 12 years and 0 days Vice-President of the Court of Appeal (1988–93)
9 Sir Noel Plunkett Power, GBS 鮑偉華爵士 19 November 2009 12 years and 115 days Vice-President of the Court of Appeal (1997–99) Died in office
10 Gerald Paul Nazareth, GBS 黎守律 27 July 2012 15 years and 0 days Vice-President of the Court of Appeal (1994–2000)
11 John Barry Mortimer, GBS 馬天敏 27 July 2015 18 years and 0 days Vice-President of the Court of Appeal (1997–99)
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)
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) Died in office
14 Robert Tang Kwok-ching, GBM, SBS 鄧國楨 Donald Tsang 1 September 2010 24 October 2012 2 years and 54 days Vice-President of the Court of Appeal (2006–12) Appointed Permanent Judge
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 JurisdictionsEdit

No. Jurisdiction Name Chinese name Appointed by Took office Left office Tenure length Prior most senior judicial role Notes
1   New Zealand Sir Edward Jonathan Somers 沈穆善爵士 Tung Chee-hwa 28 July 1997
(Founding NPJs)
3 June 2002 4 years and 311 days Judge of the Court of Appeal of New Zealand (1981–90) Died in office
2   /   New Zealand / United Kingdom Lord Cooke of Thorndon 顧安國勳爵 27 July 2006 9 years and 0 days Lord of Appeal in Ordinary (1996–2001)
3   Australia Sir Anthony Frank Mason, GBM 梅師賢爵士 27 July 2015 18 years and 0 days Chief Justice of Australia (1987–95)
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)
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)
6   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)
7   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)
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)
9   United Kingdom Lord Woolf of Barnes, 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)
10   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)
11   Australia Michael Hudson McHugh 馬曉義 Donald Tsang 1 July 2006 30 June 2012 6 years and 0 days Justice of the High Court of Australia (1989–2005)
12   New Zealand Sir Thomas Munro Gault 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) Died in office
13   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)
14   Australia James Jacob Spigelman 施覺民 Leung Chun-ying 29 July 2013 2 September 2020 7 years and 36 days Chief Justice of New South Wales (1998–2011) Resigned[9]

See alsoEdit

ReferencesEdit

  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. ^ "All city's top judges 'considered quitting'". SCMP.
  5. ^ "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.
  6. ^ "Finance Committee – Public Works Subcommittee (Papers) 8 Nov 95". Government of Hong Kong. Retrieved 20 June 2015.
  7. ^ a b Hong Kong Gazette Notice GN5815/2018
  8. ^ "Appointments of non-permanent judge from another common law jurisdiction of the Court of Final Appeal and the Chief Judge of the High Court".
  9. ^ "REVOCATION OF APPOINTMENT OF JUDGE FROM ANOTHER COMMON LAW JURISDICTION OF THE HONG KONG COURT OF FINAL APPEAL" (PDF).

External linksEdit